Legum and Harmon (Child support)

[2022] AATA 1704

Legum and Harmon (Child support) [2022] AATA 1704 (1 May 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/PC022846

APPLICANT:  Mr Legum

OTHER PARTIES:  Child Support Registrar

Ms Harmon

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  01 May 2022

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – application for suspension of child support assessment – whether members of a couple – not members of a couple – application should be refused – 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

BACKGROUND

1. This decision relates to the suspension of a child support assessment in respect of the child [Child 1] (born July 2003).

2. Mr Legum and Ms Harmon are the parents of [Child 1].  There has been a child support assessment in place since 6 July 2007 and Mr Legum was the liable parent under the assessment.

3. On 1 March 2017 Ms Harmon applied to the Child Support Agency to commence collection of child support as well as outstanding payments.  On 2 March 2017 Mr Legum informed the Child Support Agency the parents had reconciled and were in a genuine domestic relationship from September 2015 to January 2017.

4. On 17 August 2021 the Child Support Agency made the decision not to suspend the child support assessment.

5. On 1 September 2021 Mr Legum objected to this decision and on 15 November 2021 the Child Support Agency disallowed the objection (the objection decision).

6. On 30 November 2021 Mr Legum applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

7. The Tribunal conducted a hearing into the application on 29 March 2022.  Mr Legum gave evidence on affirmation by Microsoft Teams video.  Ms [A] from [a law firm] appeared before the Tribunal by Microsoft Teams audio and made submissions on behalf of Ms Harmon as her legal representative.  [Child 1] and [Ms B] appeared before the Tribunal by Microsoft Teams audio as witnesses for Mr Legum and gave evidence on affirmation.

8. The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (147 pages).  The Tribunal also received additional information from Mr Legum (A1–A6) prior to the hearing and a copy was distributed to the parties.  At hearing [Ms A] told the Tribunal her client had not received the additional information from Mr Legum until late the day before.  In the interests of procedural fairness, the Tribunal agreed to provide Ms Harmon with additional time to review this information and provide written comments.  These were received on 1 April 2022 (B1–B2) and a copy sent to Mr Legum.  A response was subsequently received from Mr Legum on 20 April 2022 (A7–A8).

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).

2. A child support liability must be suspended in circumstances where the parents reconcile (section 150E of the Act).  This is known as a suspension determination and child support is no longer payable for a child by the liable parent.

3. The parents are considered to have reconciled if they become members of the same couple.  Subsection 5(1) of the Act defines the term “member of a couple” as:

   ·     a person who is legally married to another person and is not living separately and apart from the other person on a permanent or indefinite basis; or

   ·     a person who is living with another person as the partner of the other person on a genuine domestic basis although not legally married to the other person; or

   ·     a person whose relationship with another person is registered and is not living separately and apart from the other person on a permanent or indefinite basis.

4. When parents remain reconciled for a period of six months or more this becomes a child support terminating event and the administrative assessment ends (subsection 12(5) of the Act).

5. The issue which arises in this case is whether or not the Child Support Agency made the legally correct decision to refuse to suspend the child support assessment.

CONSIDERATION

1. Mr Legum told the Tribunal he and Ms Harmon were married on [date] January 2003 and first separated at some point in early 2007.  Mr Legum said the parents then reconciled around September 2015 and were in a relationship until 9 January 2017.

2. Mr Legum explained that for almost the entire period they were together again he lived with Ms Harmon and [Child 1] at their home in [Suburb 1] and then later at their home in [Suburb 2].  Mr Legum said he and Ms Harmon were in a normal relationship and spent much of their time together.  He said they ate meals together in the evening and socialised as a couple, for example, going to the movies.  Mr Legum added that he watched [Child 1] participate in sporting activities and they also spent time together on weekends.  Mr Legum said as far as he was concerned they were a family during this time.

3. Mr Legum said although he also maintained his own residence in [Suburb 1], where he kept horses, he stayed with Ms Harmon and [Child 1] for five nights a week during when they were reconciled.  Mr Legum said Ms Harmon received a pension and could not afford the rent so he had made a regular cash contribution.  He said he also purchased food and assisted with other living costs.  Mr Legum said although the parents maintained separate finances their living arrangements were very much those of a committed couple.

4. The Tribunal notes in evidence from the Child Support Agency a statutory declaration signed by Mr Legum on 27 January 2021.  It states, relevantly, that “I was in a relationship with Ms Harmon until 8/1/2017 and should not be liable for child support until this date”.

5. Mr Legum said he had also provided the Tribunal with evidence in the form of text message exchanges which clearly indicate the parents were in a relationship.

6. The Tribunal notes a series of text message exchanges between Mr Legum and Ms Harmon during 2016 and 2017.  Some of the text messages are dated while others are not.  The text messages show the parents communicating on a range of topics including their day-to-day activities.  Many of the messages also show instances where Ms Harmon invites Mr Legum to come to her home for dinner or to watch a television program.  On 3 January 2017, for example, Ms Harmon asks if Mr Legum is coming over.  Mr Legum responds, “Dunno” and Ms Harmon says, “I would like you to”.  She then asks, “Do you want dinner”? to which Mr Legum replies, “You eat too early for me”.  The text messages also illustrate the parents are living separately.  On 27 December 2016, for example, Mr Legum asks Ms Harmon if she is going out.  Ms Harmon responds “No” and Mr Legum then states he will “come ova after dinner”.  On 4 January 2017 Mr Legum asks how to turn off [social media] to which Ms Harmon replies, “Too hard to explain, I’ll show you when I see you next”.

7. Mr Legum said he felt the Child Support Agency had ignored additional evidence he had provided in the form of letters from two third parties which confirmed the parents had reconciled.  He said one letter was from his daughter, [Child 1], who was obviously aware he had been living with Ms Harmon while the other letter was from a close friend, [Ms B], who often picked him up from Ms Harmon’ home.  He added that [Ms B] was well known to Ms Harmon as they regularly helped each other with their horses at his property.

8. The Tribunal notes in evidence from the Child Support Agency letters from Ms [Child 1] and [Ms B].  The letter from Ms Legum is dated 1 September 2021[1] and states that her father and mother were in a relationship from September 2015 until 9 January 2017.  Ms Legum also states that her father, “stayed at our house most nights, ate meals with us and we socialized together the same as any family”.  The letter from [Ms B], dated 17 February 2021, states that Mr Legum and Ms Harmon reconciled in about October 2015 and their relationship continued until 8 January 2017.  [Ms B] also states she has known both parents for more than seven years.

   [1] This is after [Child 1] turned 18 years of age and, in accordance with section 98A of the Child Support (Registration and Collection) Act 1988, the Tribunal is satisfied it may take written and oral evidence from Ms Legum

9. At hearing Ms Legum said she was aware the Tribunal was considering a child support matter and confirmed she had written the letter dated 1 September 2021.  Ms Legum said she had vivid recollections of her father coming to have dinner and then staying the night at both their home in [Suburb 1] and then their home in [Suburb 2].  Ms Legum said they regularly worked together at her father’s farm and her father watched her play football although this was not often.  Ms Legum said she was aware when the relationship ended in 2017 because she remembered the argument between her parents at the time.

10. At hearing [Ms B] told the Tribunal it was her understanding Mr Legum and Ms Harmon were a couple from 2015 until 2017 as she would see them together regularly.  [Ms B] said they had worked at the same time at Mr Legum’s farm where she kept her horses.  [Ms B] added she was aware Mr Legum often stayed with Ms Harmon and she regularly picked up [Child 1] from school and dropped her home or to the farm.  [Ms B] said when they were at the farm they all sometimes went to the bakery in [Suburb 1] for lunch as well.

11. [Ms A] told the Tribunal she had been advised by her client that the parents had not reconciled between September 2015 and January 2017.  [Ms A] said there was a short period of around four months up until January 2017 when Mr Legum often stayed with Ms Harmon and they shared a meal.  [Ms A] said the parents were intimate during this time, however, Ms Harmon described the relationship only as “friends with benefits”.

12. [Ms A] said her client had her own leases during this time and maintained her own finances.  [Ms A] said Ms Harmon had never received cash for rent or other expenses from Mr Legum.  She reiterated there was no meaningful reconciliation between the parents.

13. [Ms A] told the Tribunal that evidence provided by Ms Legum should be considered in light of her young age at that time.  [Ms A] added that Ms Harmon and [Ms B] were not close and only worked together on the farm run by Mr Legum.  [Ms A] said this placed in doubt the knowledge [Ms B] had of the nature of the relationship between the parents.

14. The Tribunal notes in evidence from the Child Support Agency residential tenancy agreements for the property in [Suburb 1] and for the property in , [Suburb 2].  Ms Harmon is the only nominated tenant for both properties.  The agreement for the [Suburb 1] property commences on 20 December 2013 and is for a maximum number of two occupants.  The agreement for the [Suburb 2] property commences on 12 December 2015 and is for one adult and one dependant.

15. The Tribunal further notes in evidence from the Child Support Agency four written oaths from third parties in support of Ms Harmon.  The oath from [Ms C], a close friend, is dated 27 October 2021 and states she “never witnessed any evidence” that Mr Legum resided at [Suburb 1] or [Suburb 2] between September 2015 and January 2017.  [Ms C] states she made many unplanned visits to these homes and did not encounter Mr Legum on any of these visits.  The oath from Ms [D], adult daughter of Ms Harmon, is dated 29 October 2021.  Ms [D] states she visited her mother and [Child 1] regularly between September 2015 and January 2017 and saw no evidence Mr Legum was living there.  The oath from Mr [E] is dated 3 November 2021.  Mr [E] states he is the owner of the property at [Suburb 2] and regularly provided support for maintenance and troubleshooting.  Mr [E] states he never met Mr Legum at the property despite his many visits and does not believe the parents reconciled.  The oath from Ms [F], long-term friend, is dated 8 November 2021.  Ms [F] states she saw no evidence of the parents getting back together but does not provide a relevant timeframe.

16. In order for a child support assessment to be suspended the Child Support Agency must be satisfied the parents have reconciled and are members of a couple in accordance with the definition in subsection 5(1) of the Act.  The “Social Security Guide”, a guide to social policy law, provides some insight at 2.2.5.10 into the factors to be considered in establishing whether or not a person is a member of a couple:

    ·     financial aspects of the relationship;

    ·     nature of the household;

    ·     social aspects of the relationship;

    ·     presence or absence of a sexual relationship; and

    ·     nature of the commitment.

17. Although not bound by policy in the “Social Security Guide” the Federal Court has held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation.

18. Mr Legum has told the Tribunal he believes the parents were in a committed relationship from September 2015 until January 2017, however, Ms Harmon disagrees.  [Ms A], on behalf of Ms Harmon, has said there was a period of four months up until January 2017 when Mr Legum would often stay with Ms Harmon and the parents were intimate during this time.

19. Mr Legum acknowledges he maintained his own home and the parents did not have joint finances during the period he argues the parents were a couple.  While Mr Legum submits he paid rent and other expenses for Ms Harmon there is no evidence before the Tribunal to support this contention.  The text messages provided by Mr Legum suggest the parents were in a relationship, however, these messages also indicate they were not living together under one roof and led somewhat independent lives.  While Mr Legum and Ms Harmon did socialise together on occasion it is unclear how often or for what period they engaged in such activities.  The parents have also provided conflicting evidence in the form of their respective statements from third parties as to the nature of their relationship.

20. On balance, having considered the various factors, the Tribunal is not satisfied Mr Legum and Ms Harmon were members of a couple between September 2015 and January 2017 in keeping with the definition under the Act.

21. The Tribunal finds, therefore, that the request made by Mr Legum for the administrative assessment of child support for [Child 1] to be suspended should be refused.

DECISION

The decision under review is affirmed.