Millard and Haycraft (Child support)

[2022] AATA 1180

Millard and Haycraft (Child support) [2022] AATA 1180 (29 March 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2022/SC023133, 2022/SC023196, 2022/SC023197 & 2022/SC023198

APPLICANT:  Mr Millard

OTHER PARTIES:  Child Support Registrar

Ms Haycraft

TRIBUNAL:Member M Baulch

DECISION DATE:  29 March 2022

DECISION:

The decisions under review are affirmed.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – whether the applications for an administrative assessment was correctly accepted – applications should be accepted – the application for collection and arrears should be accepted – decisions 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. Mr Millard and Ms Haycraft are the parents of [Child 1] (born in 2005), [Child 2] (born in 2008) and [Child 3] (born in 2011).

2. On 1 February 2006 (in respect of [Child 1]), 4 March 2008 (in respect of [Child 2]) and 15 September 2011 (in respect of [Child 3]), Ms Haycraft applied to the Department of Human Services (now known as Services Australia) – Child Support (Child Support) seeking an administrative assessment of child support in respect of each child.

3. On 12 July 2021, Ms Haycraft applied to Child Support, seeking to have the child support liability collected on her behalf.  She also requested that Child Support collect outstanding amounts of child support for the previous three months.

4. Having regard to Ms Haycraft’ applications and requests, Child Support made the following decisions:

   ·      On 22 February 2006, to accept an application for an administrative assessment of child support in respect of [Child 1];

   ·      On 13 August 2008, to accept an application for an administrative assessment of child support in respect of [Child 2];

   ·      On 17 September 2011, to accept an application for an administrative assessment of child support in respect of [Child 3]; and

   ·      On 9 August 2021, to seek to collect unpaid child support of $3,672.14 in respect of the period 12 April 2021 to 11 July 2021;

   (the decisions under review).

5. Mr Millard objected to those decisions and, on 14 January 2022, those objections were disallowed.  Mr Millard has now applied to this tribunal seeking an independent review of Child Support’s decisions.

6. A hearing into the applications for review was held by the tribunal on 29 March 2022. Mr Millard and Ms Haycraft both participated in the hearing by conference telephone, and both gave evidence under affirmation during the hearing. A representative of the Child Support Registrar (the Registrar) did not participate in the hearing. The tribunal had before it relevant documents provided to it by Child Support pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (380 pages); copies of which both parties confirmed they had received prior to the tribunal hearing. 

ISSUES

1. The statutory provisions relevant to these review applications are found within the child support legislation, in particular the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Collection Act).

2. The issues which arise in this case are:

   ·      At the time each application for an assessment of child support was made, were Mr Millard and Ms Haycraft living with each other on a genuine domestic basis; and

   ·      Does Mr Millard owe child support to Ms Haycraft in respect of the period 12 April 2021 to 11 July 2021, and how much is owed?

CONSIDERATION

1. The Assessment Act provides a scheme for an administrative assessment of the child support payable by one separated parent to the other. It uses a statutory formula which contains variables such as the parents’ adjusted taxable incomes, the number and ages of their children and the percentages of care.

At the time each application for an assessment of child support was made, were Mr Millard and Ms Haycraft living with each other on a genuine domestic basis?

1. Section 25 of the Assessment Act prescribes who is permitted to apply to the Registrar for an administrative assessment of child support. It requires, at paragraph 25(b) of the Assessment, that “the applicant is not living with the other parent as his or her partner on a genuine domestic basis (whether or not legally married to the other parent)”. This means that if a person is living with the other parent on a genuine domestic basis, either married or as a de facto couple, an application for a child support assessment cannot be made.

2. For the purposes of determining whether or not two parents are living together on a genuine domestic basis, Child Support’s policy,[1] at 2.1.1, is that the following factors are to be considered:

   ·      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.

   I noted that I am not bound by policy as set out in the Child Support Guide.  However, in Drake and Minister for Immigration and Ethnic Affairs [1979] FCA 39, the Federal Court held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. In this instance, I accepted the policy is unobjectionable and, in the interests of consistency of decision-making under the Assessment Act, considered that this policy should be applied.

   [1] Guides to Social Policy Law, the Child Support Guide, the Department of Social Services, version 4.62.  Can be found at >

   Mr Millard did not dispute that during the entire period being considered, he and Ms Haycraft did not hold any joint bank accounts, nor utility accounts in joint names, nor that Mr Millard used his parents’ address as his mailing address.  Mr Millard’s evidence was that he has no will and Ms Haycraft was not listed as a beneficiary on his superannuation investments.

3. While Mr Millard initially maintained that he and Ms Haycraft had been in a genuine domestic relationship for the entire period being considered, he did concede that the relationship had been “on and off” over the period of time, with it being “more on than off”.  Ms Haycraft’ evidence was that their relationship was “more off than on”.

4. The evidence of both parents is that there were periods of time when they were not living together.  When asked how he could know that 1 February 2006, 4 March 2008 and 15 September 2011 were each a point in time when he and Ms Haycraft were living together, Mr Millard’s evidence was that he knew by reference to the children’s birthdays.  However, at least for [Child 1] and [Child 3], the time between the child’s birth and Ms Haycraft’ application for a child support assessment are separated by at least five months.  I was not persuaded that Mr Millard has any accurate recollection about where he was living on 1 February 2006, 4 March 2008 and 15 September 2011.

5. I found Mr Millard to be an unimpressive witness.  His evidence was evasive at times, and he frequently contradicted himself and records of his previous statements to Child Support. 

6. There are several instances in the documents where Mr Millard is recorded as advising Child Support that he had been unaware of there being a child support assessment in place.  The weight of the documentary evidence suggests that Mr Millard’s claims of ignorance are difficult to sustain.  Mr Millard’s evidence at hearing was that he did not collect his mail immediately it was delivered to his parents’ address and he had remained in ignorance of the child support assessment for several months in 2006.  However, Mr Millard did accede to being aware of the child support assessment some months after it commenced in February 2006.

7. When asked why he did not advise Child Support, having knowledge that the applications for assessments were made, that he and Ms Haycraft were living together as a de facto couple, Mr Millard said that he did not really know what was going on.  When asked why he could not ask Child Support for some further explanation, it was Mr Millard’s evidence that Ms Haycraft threatened to refuse to allow him to see the children if he did so.  This was disputed by Ms Haycraft and given that, on his own evidence, he and Ms Haycraft were living together with their children, I was unconvinced that such an outcome could be achieved.

8. The evidence suggests that Mr Millard and Ms Haycraft likely spent time together during the period being considered.  Given that two more children were born after [Child 1], some form of sexual relationship clearly continued.  However, the evidence does not establish, on the balance of probabilities, that Mr Millard and Ms Haycraft shared a home as a de facto couple for the entire period commencing in February 2006.  I therefore focused on considering the nature of their relationship at the points in time when Ms Haycraft made her applications for child support assessments.

Application for a child support assessment for [Child 1]

1. On 1 February 2006, Ms Haycraft applied to Child Support for an administrative assessment in respect of [Child 1], who was born [in] September 2005.  It is uncontested that, at this point in time, Ms Haycraft was living with her father.

2. Mr Millard submitted that he was living with Ms Haycraft at this point in time.  He disputed the accuracy of a letter written by Ms Haycraft father, Mr [A] , on 7 December 2021.  Further questioning revealed that during the period Ms Haycraft lived with her father, Mr Millard was using his parents’ address as his mailing address, had all his personal possessions (which were only clothes) at his parents’ address and maintained a bedroom at his parents’ address. 

3. Having considered the evidence, I was satisfied that Mr Millard may have visited Ms Haycraft while she lived with her father, and may have even stayed over on some nights, the frequency of which is unknown.  However, I was not persuaded that Mr Millard was also living at Mr [A] ’ address with Ms Haycraft.  I concluded that Mr Millard and Ms Haycraft were not living together on a genuine domestic basis on 1 February 2006, and it was open to Ms Haycraft to make an application for a child support assessment.

4. I therefore affirmed Child Support’s decision, made on 22 February 2006, to accept the application for an administrative assessment of child support for [Child 1].

Application for a child support assessment for [Child 2]

1. On 4 March 2008, Ms Haycraft applied to Child Support for an administrative assessment in respect of [Child 2], who was born [in] February 2008.  Ms Haycraft’ evidence was that at this time, she was living alone in a [property].

2. Both parents acknowledged that their relationship was “on and off”.  I identified no evidence, other than Mr Millard’s somewhat vague claims, that he and Ms Haycraft were living together in a genuine domestic relationship as of 4 March 2008.  Ms Haycraft had made the application on 4 March 2008.  I was satisfied that it was more likely than not that Mr Millard and Ms Haycraft were not living together on a genuine domestic basis on 4 March 2008, and it was open to Ms Haycraft to make an application for a child support assessment.

3. I therefore affirmed Child Support’s decision, made on 13 March 2008, to accept the application for an administrative assessment of child support for [Child 2].

Application for a child support assessment for [Child 3]

1. On 15 September 2011, Ms Haycraft applied to Child Support for an administrative assessment in respect of [Child 3], who was born [in] May 2011.  Ms Haycraft’ evidence was that at this time she was living alone in a [property].

2. Other than Mr Millard’s vague claims, there is no evidence that he and Ms Haycraft were living together in a genuine domestic relationship as of 15 September 2011.  As Ms Haycraft had made the application on 15 September 2011, I was satisfied that it was more likely than not that Mr Millard and Ms Haycraft were not living together on a genuine domestic basis at that time, and it was open to Ms Haycraft to make an application for a child support assessment.

3. I therefore affirmed Child Support’s decision, made on 15 September 2011, to accept the application for an administrative assessment of child support for [Child 3].

Does Mr Millard owe child support to Ms Haycraft in respect of the period 12 April 2021 to 11 July 2021, and how much is owed?

1. When making an application for a child support assessment, the payee may elect that the liability is not enforceable (that is, the child support is collected privately and not by Child Support), pursuant to section 24A of the Collection Act. At a later time, the payee may apply to Child Support for the liability to become enforceable (section 28A of the Collection Act). If the liability is “enforceable” then it will be collected by Child Support on the payee’s behalf.

2. It is not in dispute, and I so found, that:

   ·      There is a registered maintenance liability in respect of Mr Millard’s and Ms Haycraft’ children that has applied since 1 February 2006;

   ·      At various times, Ms Haycraft had elected that the liability was not to be enforced by Child Support, most recently on 27 November 2019; and

   ·      On 12 July 2021, Ms Haycraft made an application to Child Support for the liability to become enforceable.

3. The payee may also apply to Child Support for any unpaid amounts payable under the liability, in relation to a specified period, to be treated as an arrears amount. The specified period ends on the day before the liability becomes enforceable (subsection 28A(3) of the Collection Act). If the specified period does not exceed three months, Child Support must grant the payee’s application (subsection 28A(4) of the Collection Act).

4. Child Support has determined that the total child support liability for the period 12 April 2021 to 11 July 2021 was $5,112.14.  Having regard to the evidence of the child support liabilities that applied for that period, I was satisfied that Child Support has correctly calculated the quantum of Mr Millard’s child support liability for 12 April 2021 to 11 July 2021.

5. Child Support determined that Mr Millard made direct payments of $1,440.00 to Ms Haycraft.  Mr Millard stated that he has not reviewed his bank statements, but in any case, he does not accept the accuracy of Ms Haycraft’ claims.  He also stated that he has made cash payments directly to Ms Haycraft, who disputes that this occurred.  On the basis of the evidence currently before me, I was satisfied that Mr Millard made direct payments to Ms Haycraft that totalled $1,440.00.

6. I consequently found that the “unpaid amount” of child support for the period 12 April 2021 to 11 July 2021 was $3,672.14 ($5,112.14 less $1,440.00). 

7. I therefore affirmed Child Support’s decision, made on 9 August 2021, to collect unpaid child support of $3,672.14 from Mr Millard in respect of the period 12 April 2021 to 11 July 2021.

DECISION

The decisions under review are affirmed.