Merton and Braden (Child support)

[2019] AATA 1742

Merton and Braden (Child support) [2019] AATA 1742 (30 April 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/PC015740

APPLICANT:  Mr Merton

OTHER PARTIES:  Child Support Registrar

Ms Braden

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  30 April 2019

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides the application for a child support assessment made by Ms Braden on 8 January 2013 should not be accepted.

CATCHWORDS

CHILD SUPPORT – acceptance of application for administrative assessment –whether application should have been accepted – parties living together in a de facto relationship at the time of application - 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 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. Mr Merton and Ms Braden are the parents of [Child 1] (born December 2003) and Mr Merton was the liable parent under the assessment.

2. On 8 January 2013 the Department of Human Services, Child Support (the Child Support Agency) made the decision to accept a child support assessment application made by Ms Braden with child support collected privately (the original decision).

3. On 11 July 2018 Mr Merton objected to this decision and as his objection was not made within the prescribed period he applied for an extension of time on the same date.  On 16 July 2018 the Child Support Agency refused the request for an extension of time and on 14 August 2018 Mr Merton sought a review of this decision by the Administrative Appeals Tribunal (the Tribunal).  On 25 October 2018 the Tribunal granted the extension of time.

4. On 9 January 2019 the Child Support Agency disallowed the objection (the objection decision) and on 10 January 2019 Mr Merton applied to the Tribunal for a review of the objection decision.

5. The Tribunal conducted a hearing into the application on 28 March 2019.  Mr Merton gave evidence on affirmation by conference telephone.  The Tribunal wrote to Ms Braden on 7 February 2019 advising the hearing had been scheduled for 28 March 2019 at 9:30 am.  A follow-up SMS reminder was sent on 27 March 2019.  The Tribunal attempted to contact Ms Braden at the advised time on 28 March 2019 and again on two further occasions but was unsuccessful.  The Tribunal was satisfied that Ms Braden was given appropriate notice of the date and time of the hearing and proceeded in her absence. The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (285 pages).

6. Following the hearing the Tribunal submitted two separate requests to the Child Support Agency under section 95G of the Child Support (Registration and Collection) Act 1988 (the Act) for additional documents which were potentially relevant to the review.  The additional documents were copies of existing evidence but with previously redacted addresses and mobile telephone numbers included.  These additional documents were received by the Tribunal on 4 April 2019 and 8 April 2019.  Copies were not sent to the parties as the Tribunal did not consider this to be new evidence.

ISSUES

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

2. An application for a child support assessment must be accepted if the Child Support Agency is satisfied the application is properly made (subsection 30(1) of the Assessment Act). An application is properly made if it complies with sections 24, 25, 25A and 27 of the Assessment Act.

3. The issue which arises in this case is whether or not the application for a child support assessment made by Ms Braden should be accepted.

CONSIDERATION

1. Mr Merton told the Tribunal he and Ms Braden were in a long-term de facto relationship until they separated around September 2016.  Mr Merton said he was unaware of any child support assessment until contacting Centrelink about another matter well after they separated.

2. Mr Merton said there was absolutely no reason for Ms Braden to apply for child support in January 2013 and he believed she had made a fraudulent claim.  He added that [Child 1] had lived with him and been in his care since birth apart from the three months from September to December 2016 which was immediately after he separated from Ms Braden.

3. Mr Merton said it appeared Ms Braden had made the application for child support just after they had moved house together from [an address] in [Town 1] to [an address] in [Town 2].  Mr Merton said he believed the [Town 1] address had been used in the application which explained why he knew nothing about it and did not receive mail from the Child Support Agency.  Mr Merton said he had provided evidence to the Child Support Agency in the form of a joint lease agreement for the [Town 2] property where they had lived from December 2012 until September 2014 which proved they were still together when Ms Braden made the application.  Mr Merton said he obtained the lease agreement from [Mr and Mrs A] who owned the property and lived there in a separate house.

4. Mr Merton said he had also provided a second joint lease agreement for a property in [Town 3 address] where he and Ms Braden had lived from September 2014.  Mr Merton said in addition he had given the Child Support Agency statements from several people who confirmed that he and Ms Braden were together until September 2016.

5. Ms Braden did not participate in the hearing and did not provide evidence during the objection decision process.  The Tribunal notes, however, that she sent an email to the Child Support Agency on 13 December 2018 describing the objection as “ridiculous”.

6. The Tribunal pointed out to Mr Merton that evidence from the Child Support Agency included a record of his conversation with a child support officer on 8 January 2013 where, after verifying his identity, he had agreed to the application for child support made by Ms Braden.  Mr Merton said he had no recollection of such a discussion.  He said Ms Braden knew everything about him and could easily have provided all his personal details to another person.  The Tribunal also pointed out that the Child Support Agency had contacted Mr Merton on his mobile number on that date.  Mr Merton said he often left his mobile home and as they were living on a large farming property anyone could have answered instead of him.

7. The Tribunal notes in evidence a fixed term tenancy agreement for the property at [the Town 2 address] signed by both Mr Merton and Ms Braden on 1 December 2012.  The agreement identifies the owners as [Mr and Mrs A].  The agreement appears to commence on 8 December 2012 but this is not clear as there is a second date of 8 June 2012 also on the agreement.  There is nothing confirming the end date of the tenancy.   Mr Merton told the Tribunal there was an initial six month extension to the original contract, however, the date of 8 June 2012 does not corroborate this as it is prior to the date the contract was signed by Mr Merton and Ms Braden on 1 December 2012.

8. After the hearing, the Tribunal contacted the property owner, [Mr A], who confirmed that Mr Merton and Ms Braden had rented [the Town 2 property] for between 18 months to two years from December 2012, although he said he could not recall the specific dates.  He said Mr Merton and Ms Braden were a couple for the entire period they were renting his property.

9. The Tribunal wrote to Ms Braden on 15 April 2019 asking for her comments on the evidence provided by [Mr A].  The Tribunal requested that Ms Braden respond by 29 April 2019.  Ms Braden did not respond.

10. The Tribunal also notes in evidence a residential tenancy agreement for the property at [the Town 3 address] signed by Mr Merton and Ms Braden on 10 October 2014.  The first part of the agreement is for a term of 12 months from 13 October 2014 to 12 October 2015 and the second part for a term of 12 months from 12 October 2015 until 9 October 2016.  In addition to this document there is a ‘Record of Payment of Security Bond’ for the property dated 14 November 2014 from the [relevant state agency].  The date of payment to the bondholder is 17 October 2014 for a start date of tenancy of 13 October 2014.  The tenants listed are Mr Merton and Ms Braden.

11. The third-party statements provided to the Child Support Agency are from [Mr B], [Ms C], [Ms D], Mr [Merton’s father]  and [Ms E].

12. In his statement dated 7 July 2018 [Mr B] says he has known Mr Merton and Ms Braden since 2002 and has visited them at all of their addresses.  [Mr B] states he has never seen them apart during these times.  Mr Merton told the Tribunal that [Mr B] was his stepfather when he was young.

13. The undated statement from [Ms C] says that Mr Merton and Ms Braden lived with their two sons at the [Town 1] property, where she still resides, from 2006 until 2012.  [Ms C] says they then moved to [Town 2] and she helped them clean this property before they moved to the property at [Town 3 address].  [Ms C] does not specify the month in 2012 that Mr Merton and Ms Braden moved to [Town 2].

14. The undated statement from [name, who is] Mr Merton’s father, says that Mr Merton and Ms Braden have been together since prior to the birth of their son until September 2016. 

15. [Ms D] is Mr [Merton’s father’s] partner and says she has been in a relationship with him since February 2009.   In her statement, dated 31 July 2018, [Ms D] says that Mr Merton and Ms Braden have been together from February 2009 until September 2016.

16. The statement from [Ms E], dated 3 August 2018, says she has known Mr Merton since 2003 and first met him through her late partner.  [Ms E] explains in her statement that her late partner and Ms Braden had a child together in a previous relationship and she would often see Mr Merton when returning the child home after weekends with his father (her late partner).  [Ms E] says that Mr Merton and Ms Braden separated in September 2016.  The Tribunal considered [Ms E] to be the most independent third party witness and contacted her to discuss her statement.  [Ms E] confirmed that Mr Merton and Ms Braden had been in a relationship since 2003, although she had limited contact with them since her partner died about four years ago in early 2015.

17. Ms Braden made an application for an administrative assessment for child support for [Child 1] on 8 January 2013. 

18. Section 25 of the Assessment Act states that a parent can apply for a child support assessment for a child if they are not living with the other parent of the child as their partner on a genuine domestic basis.

19. The Tribunal is satisfied, based on the evidence provided, that Mr Merton and Ms Braden were living together in a de facto relationship at the time Ms Braden made her application.

20. The Tribunal finds, therefore, that the application for an administrative assessment for child support made by Ms Braden on 8 January 2013 should not have been accepted.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides the application for a child support assessment made by Ms Braden on 8 January 2013 should not be accepted.