Linney and Joplin (Child support)

[2024] AATA 881

Linney and Joplin (Child support) [2024] AATA 881 (20 March 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/BC027154

APPLICANT:  Mr Linney

OTHER PARTIES:  Child Support Registrar

Ms Joplin

TRIBUNAL:Member S Hoffman

DECISION DATE:  20 March 2024

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the binding child support agreement is not terminated from 19 August 2022, or another date.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – whether binding child support agreement terminated – whether eligible carer remained eligible carer of the child - binding child support agreement not terminated – decision under review set aside and substituted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted 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. Mr Linney and Ms Joplin are the parents of [Child 1].

2. A binding child support agreement (BCSA) came into effect from 29 January 2021. At the time, the parents shared the care of [Child 1] equally.

3. On 12 January 2023, Ms Joplin contacted the Child Support Agency (the CSA) and, amongst other things, advised that there had been a change in [Child 1’s] care but did not provide all the details at that stage.

4. On 10 July 2023, Ms Joplin contacted the CSA and advised that since August 2022, she had 100% care of [Child 1].

5. On 11 August 2023, a CSA officer decided that the BCSA was terminated from 19 August 2022 (the original decision).

6. On 23 August 2023, Mr Linney lodged an objection to the original decision.

7. On 4 December 2023, an objections officer decided to disallow the objection (the objection decision). This means that there was no change to the original decision.

8. On 5 December 2023, Mr Linney lodged an application for review of the objection decision with this Tribunal. The matter was heard on 20 March 2024. Both parents attended the hearing via MS Teams audio (equivalent to conference telephone). Mr Linney’s legal representative, [named] from [Firm 1], also attended via MS Teams audio.

9. The Tribunal had before it a bundle of documents provided by the CSA (numbered 1 to 196) and a submission on behalf of Mr Linney (numbered A1 to A12). Copies of these documents were provided to the parties before the hearing.

ISSUE

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act1989 (the Act).

2. The main issue in this review is whether the BCSA should have been terminated from 19 August 2022.

CONSIDERATION

Legislation

1. Subsection 5(3) of the Act defines shared care of a child as being at least 35% care but not more than 65% care.

2. Section 7B of the Act defines an eligible carer in relation to a child, as a person who has at least shared care of the child; that is, at least 35% care.

3. Section 80A of the Act provides a simplified outline of Part 6 of the Act which is to do with consent arrangements. It sets out that parents (and non-parent carers) can agree between themselves the amount of child support that is payable for the child, using a child support agreement. It also states that there are two types of agreement, binding and limited.

4. For a binding agreement, each party to the agreement must have received independent legal advice before entering into the agreement, and this is certified in an annexure to the agreement (section 80C of the Act).

5. Section 80D of the Act is about terminating binding agreements. It sets out four circumstances under which a BCSA can be terminated. These are as follows:

   ·     If there is a new BCSA made by the parties to the previous agreement, that makes clear the previous BCSA no longer applies (subsection 80D(1) of the Act).

   ·     If the parties to the previous agreement make a written agreement that the previous agreement is terminated (subsection 80D(2) of the Act).

   ·     There is a court order that sets aside the previous agreement (subsection 80D(3) of the Act).

   ·     The agreement is terminated in accordance with subsection 80D(2A) of the Act.

6. Subsection 80D(2A) of the Act sets out five criteria that all have to be met for a BCSA to be terminated. The two of particular relevance to this matter are as follows:

   ·     A party to an agreement who was entitled to be paid child support under the agreement ceases to be an eligible carer (at least 35% care) for the child (paragraph 80D(2A)(a) of the Act).

   ·     The former carer continues to be entitled to be paid under the agreement despite ceasing to have at least 35% care of the child (paragraph 80D(2A)(e) of the Act).

7. In other words, a BCSA can be terminated if a person who used to provide more than 35% care of the child, now provides less than 35% care of the child, and continues to be entitled to be paid child support in accordance with the BCSA.

Evidence and application of legislation and policy to the evidence

1. The BCSA was drawn up on 28 January 2021 such that neither parent paid child support to the other. Each parent sought independent legal advice and certificates to that effect were duly issued, dated 11 January 2021 in respect of Mr Linney and dated 29 January 2021 in respect of Ms Joplin. The agreement stated that the parties intended to vary the then-existing Federal Circuit Court Orders made by consent [in] July 2016 and the agreement would take effect from the date of further Orders being made by the Court. Further Orders were made on 29 January 2021.

2. The Court Orders of 29 January 2021 stated that the parents were to have equal shared parental responsibility for the major long-term parenting issues of the child. The BCSA recorded that the parents, in reaching the agreement as provided in the BCSA, had taken into account the exigencies of life that may affect them in the future, including changes in the parenting arrangements for the child.

3. Based on the Child Support documents, Mr Linney was recorded in the system as being the paying parent and Ms Joplin was recorded as being the payee. This will have reflected the situation before the BCSA came into effect. In any event, as already noted, neither parent paid child support to the other, once the BCSA came into effect.

4. Ms Joplin said that it was her understanding that she should inform Child Support when there was a change in care and that was why she contacted Child Support when she did. She advised them that she had had 100% of [Child 1’s] care since 19 August 2022. She said she did not contact Child Support to ask for the BCSA to be terminated.

5. It is clear from the evidence given at the hearing and in the documents, that the parties have not made a new BCSA from which it is apparent that the old one no longer applies; the parties have not made a written agreement to terminate the BCSA; and there is no court order that sets aside the BCSA in question.

6. That only leaves the question as to whether the agreement can be terminated in accordance with subsection 80D(2A) of the Act.

7. The Tribunal notes that paragraph 80D(2A)(e) of the Act refers to a former carer who continues to be entitled to be paid child support under the agreement, despite ceasing to be an eligible carer.

8. Mr Linney has ceased to be an eligible carer as he used to have 50% care and that has reduced to nil care, based on Child Support records. But he does not continue to be entitled to be paid child support under the agreement. Neither parent was ever entitled to be paid child support under the agreement. Therefore, the change in the care that he provided cannot be the basis for terminating the BCSA. Had Ms Joplin’s care dropped to below 35%, that would not have been a basis for terminating the BCSA either; according to the agreement, like Mr Linney, she was never entitled to be paid child support.

9. The Tribunal observes that in the various discussions about this matter, there has been a focus on the carer “who is entitled to be paid child support” and what appears to be a view that that refers to a person who is entitled to be paid child support according to a child support assessment; whereas subsection 80D(2A) is clearly referring to a carer who is entitled to be paid child support under the agreement.

10. Clause 6 of the BCSA states the agreement will cease to operate in relation to the child only in certain specified circumstances. Subclause 6(h) of the BCSA allows for the agreement to cease to operate “If the eligible carer ceases to be an eligible carer of the child”. Submissions were made to the effect that this was a reference only to Ms Joplin and if it was supposed to refer to both parents, it would have read “If an eligible carer … “. Elsewhere the BCSA mentions the payer and the payee, terms used to represent Mr Linney and Ms Joplin respectively, based on who was liable for the payment of child support before the BCSA came into effect. The Tribunal agrees that the BCSA could have been worded more clearly as to whether subclause 6(h) referred to both parents or only Ms Joplin.

11. In any event, the Tribunal considers the law is very clear as it relates to this matter and there is no basis for terminating the BCSA in question under section 80D of the Act, for reasons already set out.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the binding child support agreement is not terminated from 19 August 2022, or another date.