McInnes and Inaba (Child support)

[2021] AATA 3677

McInnes and Inaba (Child support) [2021] AATA 3677 (21 June 2021)

DIVISION:  Social Services & Child Support Division

REVIEW NUMBER:  2020/MC018901

APPLICANT:  Mr McInnes

OTHER PARTIES:  Ms Inaba

Child Support Registrar

TRIBUNAL:  Ms Hamilton-Noy, Member

DECISION DATE:  21 June 2021

DECISION:

The Tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – whether child support assessment should have ended – whether parent made an application to end the assessment – 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 application relates to a decision by Services Australia – Child Support (the Agency) as to whether an election was made to end the child support case for the child [Child 1].

2. Mr McInnes and Ms Inaba are the separated parents of [Child 1].  A child support case has been registered with the Agency since October 2013.  Mr McInnes is the payer of child support in this matter and Ms Inaba the payee.

3. On 18 July 2019, an employee of Child Support made a decision to end the child support case for [Child 1] from 18 July 2019.

4. Ms Inaba objected to this decision on 16 October 2019 and on 10 December 2019, an extension of time was granted for Ms Inaba to object to the decision of 18 July 2019.

5. On 4 April 2020, an objections officer of the Agency allowed the objection and found that the child support case for [Child 1] should not have been ended from 18 July 2019.  The objections officer found that child support continued to be payable under an administrative assessment of child support from 19 July 2019.

6. On 23 April 2020, Mr McInnes made application to the Administrative Appeals Tribunal for an independent review of the Child Support decision.  At the time the application was made, the Tribunal’s Melbourne Registry was closed due to the COVID-19 pandemic.  On 6 May 2020, the Tribunal determined that an Auslan interpreter would be required for the hearing.  Following contact with both parties, the second party stated that she did not have access to Microsoft Teams and could not participate in a hearing remotely.     

7. Prior to the hearing, the Tribunal made extensive attempts to contact the second party by email and telephone, without success.  The day prior to the hearing, the second party contacted the Tribunal to request an adjournment of the matter.  Given that the second party had been advised in writing of the hearing since April 2021 and had not responded to the efforts of the Tribunal to contact her, her request was not granted.  The second party was given 14 days to provide any written submissions she sought to rely on, in the event that she did not attend the hearing.  During the deferral period the second party sought further time to provide written submissions; this was granted by the Tribunal. 

8. The Tribunal hearing was held on 20 May 2021, following the resumption of some in-person hearings at the Tribunal.  Mr McInnes attended the hearing in person and gave evidence on affirmation.  Ms Inaba did not attend the hearing.  The Tribunal was assisted during the hearing by an Auslan interpreter.  At the hearing, the Tribunal had before it documents provided by Child Support (folios 1 to 177 and supplementary documents, folios 178 to 193), copies of which had been provided to the parties before the hearing.  Mr McInnes confirmed receipt of the documents with the Tribunal.  The Tribunal was also provided further documents from Mr McInnes (A1 to A2).  A copy of these were sent to Ms Inaba, with time for comment. Following the hearing, Ms Inaba provided documents (B1 to B22) which were sent to Mr McInnes for his information.  On 21 June 2021, the Tribunal proceeded to make a decision on all of the evidence before it.

The relevant law

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).

2. The legal issue for the Tribunal in this matter is whether a valid application to end the child support case for [Child 1] from 18 July 2019 was made to Child Support.

3. Section 151 of the Assessment Act provides that a carer entitled to child support may elect that the liability for a liable parent to pay child support is to end from a specified day. Subsection 151(2) of the Assessment Act states that such a notice must be given in the manner specified by the Registrar.

4. Subsection 12(4) of the Assessment Act then provides that a child support terminating event happens in relation to a child and the persons who are a carer entitled to child support and a liable parent if an election is made under section 151 of the Assessment Act and the election is accepted by the Registrar.

5. It is not disputed that the election to end child support was initiated by a contact with Child Support on 17 July 2019, where an individual contacted Child Support via the National Relay Service, stating that they were Ms Inaba and, based on the discussion during that call, Child Support accepted that an election had been made to end the child support case for [Child 1].

6. Thereafter, Ms Inaba, as part of her objection to Child Support’s subsequent decision to end the child support case for [Child 1], stated that it had not been her on the phone to Child Support; she believed that Mr McInnes’s new partner, who is also deaf, had telephoned Child Support on the date in question, representing herself as Ms Inaba.  Ms Inaba provided a letter stating that she had been with her lawyer during the day of 17 July 2019.  The Tribunal had a copy of this letter before it and noted that it was prepared on 20 December 2019 by [Ms A] an Expression Australia support worker, and states that she and Ms Inaba had attended a lawyer at the Women’s Legal Service on 17 July 2019 and that Ms Inaba had not called Child Support on that date to cancel her payments.  Because of the findings of the Tribunal, below, the Tribunal accepts the content of this letter as correct.

7. The Tribunal notes that [Child 1] is currently in Ms Inaba’s care and that care of [Child 1] has been disputed between the parties.  There have been allegations that have resulted in Child Protection becoming involved.  There have been mediation and negotiations between the parties about what the care arrangements for [Child 1] should be from at least 2018 onwards.   While not directly relevant to the legal decision before this Tribunal, the Tribunal notes that these matters form the backdrop to how this matter has ended up before this Tribunal, in addition to being the large focus of both parties in their dealings with this Tribunal.

8. Mr McInnes’s evidence to the Tribunal at the hearing was that he had contacted Child Support on 18 July 2019, not stating that he was Ms Inaba, but requesting that child support be ‘cut off’.  He stated that he had decided to end his child support payments.  He stated that he did not think Ms Inaba had contacted Child Support on 18 July 2019 to end child support, stating that he is the only person who cancelled the payments.  Mr McInnes’s oral evidence to the Tribunal was consistent with his written reasons for seeking a review by the Tribunal, namely that he is not prepared to pay child support until he is able to see [Child 1]; this evidence was also consistent with Mr McInnes’s numerous contacts with Child Support in which he stated he had been advised not to pay child support until care had been negotiated.  Ms Inaba’s written submissions to the Tribunal, further, were focused upon the custody dispute that is ongoing between the parties rather than on the legal issues for the Tribunal in this matter.  

9. Given the evidence of Mr McInnes at the hearing, the Tribunal is satisfied that Ms Inaba did not contact Child Support on 18 July 2019 and request that the child support assessment for [Child 1] be ended. The Tribunal finds that an election was not made by Ms Inaba under section 151 of the Assessment Act on 18 July 2019 and that, in consequence, child support continued to be payable under the administrative assessment of child support for [Child 1] from 18 July 2019 onwards. The Tribunal finds that the decision under review is therefore legally correct and this decision is affirmed.

DECISION

The Tribunal affirms the decision under review.