Hance and Adler (Child support)

[2023] AATA 1180

Hance and Adler (Child support) [2023] AATA 1180 (30 March 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC025073

APPLICANT:  Mr Hance

OTHER PARTIES:  Child Support Registrar

Ms Adler

TRIBUNAL:Member P Jensen

DECISION DATE:  30 March 2023

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – whether the application for an administrative assessment was correctly accepted – decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

1. Mr Hance and Ms Adler are the parents of [Child 1]. On 5 August 2022, Ms Adler applied to register a child support case: section 23 of the Child Support (Assessment) Act 1989 (“the Act”). The Child Support Agency (“the CSA”) decided to accept the application. Mr Hance objected to that decision. An objections officer disallowed the objection. Mr Hance applied to the Tribunal for further review. I heard the matter on 30 March 2023. Mr Hance gave sworn evidence via MS Teams. I was unable to contact Ms Adler.

2. Mr Hance stated that there were three reasons why the CSA’s decision was incorrect: he and Ms Adler were partnered on 5 August 2022; Ms Adler was not in Australia on 5 August 2022; and he was providing financial support for [Child 1] on 5 August 2022.

3. An application to register a child support case must satisfy certain requirements. Relevantly, the parents must not be partnered, and if either parent is not a resident of Australia on the day on which the application was made, the application must meet the requirements of sections 29A and 29B of the Act: section 25 of the Act. However, there is no requirement that a parent is not providing financial support for the child. Whether Mr Hance was providing financial support for [Child 1] is irrelevant.

4. Mr Hance, Ms Adler and [Child 1] had tickets to fly from Sydney to [City 1], [Country 1] on 5 April 2022 and return to Sydney on 15 June 2022. Mr Hance and [Child 1] are Australian citizens. Ms Adler is not an Australian citizen. The family flew to [Country 1] on 5 April 2022. Mr Hance said that Ms Adler travelled on an expired [Country 1] passport and when she arrived in [Country 1] her passport was seized and cancelled. He said she applied for a new passport (or so be believed). He said that as at 15 June 2022, she had not been issued with a new passport (or so he believed). Mr Hance returned to Australia on 15 June 2022. Ms Adler and [Child 1] stayed in [Country 1]. At that time, Mr Hance had believed that the family would be reunited as soon as Ms Adler was issued with a new passport.

5. Mr Hance said Ms Adler “got angry and cranky” a few days after he returned to Australia and she told him they were separated. He now believes she lied to him about not being able to obtain a new passport by 15 June 2022 and she kidnapped [Child 1]. In October or November 2022 he commenced legal proceedings to recover [Child 1]. On 22 November 2022, Ms Adler and [Child 1] returned to Australia but they flew to Melbourne.

6. I asked Mr Hance to identify the factors that indicated that he and Ms Adler were partnered on 5 August 2022. He was unable to do so. Ms Adler had told him that they were separated. Separation can be, and usually is, a unilateral decision. She had applied for child support and she had stated in the application that they were separated. Mr Hance and Ms Adler were in different countries. Mr Hance had to commence legal proceedings to facilitate [Child 1]’s eventual return to Australia. I find that Mr Hance and Ms Adler were not partnered on 5 August 2022.

7. As noted above, if either parent was not a resident of Australia on the day on which the application to register a child support case was lodged, the application must meet the requirements of sections 29A and 29B of the Act.

8. Section 29A concerns the parent who is reasonably likely to be assessed as the payer of child support. Ms Adler had 100% care of [Child 1]. Mr Hance was reasonably likely to be assessed as the payer of child support. He was clearly a resident of Australia on 5 August 2022 even though he was holidaying in [Country 1]. Section 29A does not apply.

9. Section 29B applies if the person who applied to register the child support case is a resident of a reciprocating jurisdiction when the application is lodged. No evidence has been provided as to whether Ms Adler was a resident of Australia or a resident of [Country 1] on 5 August 2022, but either way, section 29B does not apply because [Country 1] is not a reciprocating jurisdiction: Schedule 2 to the Child Support (Registration and Collection) Regulations 2018 and 1.5.1 of the Child Support Guide. Section 29B does not apply.

10. Ms Adler’s application to register a child support case satisfied the relevant legislative requirements. The CSA’s decision to accept her application was correct: section 30 of the Act.

DECISION

The decision under review is affirmed.