Nihill and Milne (Child support)

[2022] AATA 950

Nihill and Milne (Child support) [2022] AATA 950 (6 April 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/BC022567

APPLICANT:  Mr Nihill

OTHER PARTIES:  Child Support Registrar

Miss Milne

TRIBUNAL:Member J Thomson

DECISION DATE:  6 April 2022

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – registration details – application for collection of the maintenance liability – whether the application for collection and arrears should be accepted – application for collection and arrears should be accepted – decision under review affirmed

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 Nihill and Miss Milne are the parents of [Child 1], born 2003, [Child 2], born 2006, and [Child 3], born 2012 (the children). The care percentages being assessed by the Child Support Agency (the Agency) are 100% to Miss Milne and 0% to Mr Nihill.

2. A child support assessment has been in place since 17 November 2003. After reconciling for a period of at least six months, the assessment was ended on 5 August 2012. The parties later separated, and a new assessment was started on 3 February 2014. The child support liability under that assessment was collected by the Agency following acceptance of Miss Milne’s request for collection by the Agency on 17 June 2021.

3. Mr Nihill seeks review of an objection decision by the Agency made on 16 September 2021. This decision disallowed his objection to an earlier decision of the Agency dated 21 June 2021 to accept Miss Milne’s request for collection of Mr Nihill’s child support liability including arrears of child support in the amount of $4,688.40 for the period 17 March 2021 to 16 June 2021.

4. The Tribunal heard the matter on 17 December 2021. Both parents attended the hearing via conference telephone and gave affirmed evidence. The Tribunal allowed [Ms A] to attend the hearing and make submissions on behalf of Mr Nihill. The Tribunal had before it documentation provided by the Agency (Exhibit 1) and documentation provided by Mr Nihill (Exhibit B). Both parents had copies of these documents with them at the hearing.

5. Post hearing, [Ms A] sought leave to have copies of affidavits by police constable [B] sworn 15 January 2015 and police constable [C] sworn 14 January 2015 in the Magistrates Court of Queensland at [Suburb] admitted into evidence. The Tribunal has accepted these documents into evidence and added them to Exhibit A. Copies will be sent to Ms Milne with the Tribunal’s decision.

ISSUES

1. The issue which arises in this case is whether, at the time the Agency decided to accept Miss Milne’s application to have Mr Nihill’s child support liability collected by the Agency on 21 June 2021, there was any child support liability that had not been paid by Mr Nihill in the preceding three-month period.

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

3. Section 28A relevantly provides:

   Application by payee for enforcement of arrears

   (3)The payee may apply to the Registrar, in the manner specified by the Registrar, for any unpaid amounts payable under the liability in relation to a specified period to be treated as arrears amounts for the purposes of this section. The specified period must:

   (a)  consist of, or be included in, the maximum arrears period; and

   (b)  end at the end of the maximum arrears period.

   Registrar’s decision—arrears for 3 months or less

   (4)  If:

   (a)  the specified period does not exceed 3 months; and

   (b)  the Registrar registers the liability under subsection 25(2);

   the Registrar must grant the payee’s application.

Consequences of successful application

(6)  If the Registrar grants the payee’s application:

(a)  this Act has effect as if:

(i)the unpaid amounts were payable under the liability in relation to the child support enforcement period that began on the day on which the liability first became enforceable under this Act as a result of the operation of paragraph 28(1)(c); and

(ii)the unpaid amounts became child support debts at the time when the liability became enforceable as a result of the operation of paragraph 28(1)(c); and

(b)the Registrar must make such variations to the particulars entered in the Child   Support Register in relation to the liability as the Registrar considers necessary or desirable to give effect to this subsection.

Amounts that would have been credited under section 71C

(7)To avoid doubt, a reference in this section to an unpaid amount payable under a liability does not include a reference to any amount that would have been credited against that unpaid amount under section 71C if the liability had been an enforceable maintenance liability at all relevant times.

1. As the parties gave evidence about their relationship status and Mr Nihill in particular attempted to rely on that relationship status, it is noted that section 5 of the Child Support (Assessment) Act 1989 (the Act) defines a member of a couple as, relevantly:

   (b) a person who is living with another person on a genuine domestic basis  although not legally married to the other person.

2. Section 25 of the Act provides, relevantly, that a parent (the applicant) of a child may apply to the Registrar for administrative assessment of child support for the child if:

   (b) the applicant is not living with the other parent as his or her partner on a genuine domestic basis (whether or not married to the other parent).

CONSIDERATION

1. In reaching its decision, the Tribunal has considered the affirmed evidence given by the parents at the hearing, the submissions made by [Ms A] on behalf of Mr Nihill at the hearing and the documentation contained in Exhibits 1 and A, including the copies of the affidavits of police constables [B] and [C].

Mr Nihill’s evidence and submissions by his representative, [Ms A]

1. Mr Nihill’s case at the hearing centred upon paragraph 25(b) of the Act which states that a parent of a child may apply to the Registrar for administrative assessment of child support for a child if 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).

2. His evidence and the submissions made on his behalf by his representative at the hearing, [Ms A], were to the effect that up until 31 May 2021 he and Miss Milne were living as a couple at [Address 1], Queensland.

3. Mr Nihill acknowledged that Miss Milne was entitled to recover arrears of child support payable by him for the period 31 May 2021 to 16 June 2021, after he moved out of the [Address 1] house which, he said, occurred on 31 May 2021, but disputed that she could recover child support arrears from 17 March 2021, because he contended that he and Miss Milne were living as a couple under the same roof at the [Address 1] residence.

4. In her submissions on behalf of Mr Nihill, [Ms A] relied heavily on the five criteria identified in chapter 2.2.5.30 of  the Child Support Guide (the CSG), commonly referred to as the five pillars, as the items for consideration in order to establish if the parents were, in fact, living as a couple, up until the point in time when Mr Nihill moved out of the [Address 1] property, the undisputed date he vacated the premises and ceased living with Miss Milne and the children on a genuine domestic basis.

5. The five pillars relied upon by [Ms A] are as follows:

   ·The financial aspects of the parents’ relationship;

   ·The nature of the household;

   ·The social aspects of the parents’ relationship;

   ·The presence or absence of a sexual relationship between the parents; and

   ·The nature of the commitment between the parents.

6. It was conceded at the hearing by [Ms A] on behalf of Mr Nihill that the parents conducted separate bank accounts. Although Mr Nihill asserted they operated a joint [Building Society] credit card, it was conceded that this had been a feature of a [Bank] loan package the parents had applied for to complete the intended purchase of the [Address 1] property from Miss Milne’s mother in January 2020. The loan application did not proceed when Ms Milne refused to agree to Mr Nihill being included as a joint registered proprietor on the certificate of title to the property with Miss Milne, and the [Building society] credit card was never issued.

7. [Ms A] said there had been periods when Mr Nihill and Miss Milne had separated, but submitted that, following their separation in late 2013 they had reconciled and resumed living as a couple on a genuine domestic basis at rented premises at [Address 2]. Mr Nihill gave evidence that this occurred after he gave up his fly-in fly-out job in Western Australia and the parents signed a new lease on the [Address 2] premises commencing on 17 October 2013. He provided a copy of the tenancy lease at pages A69 and A70 of Exhibit A.

8. However, [Ms A] acknowledged in her submissions on behalf of Mr Nihill, and Mr Nihill accepted in his evidence at the hearing, that although they asserted the parents had reconciled in October 2013, both [Ms A] and Mr Nihill acknowledged that neither parent had notified the Agency of their alleged reconciliation.

9. [Ms A] submitted that Miss Milne had the obligation of notifying the Agency of the couple’s reconciliation in late October 2013 but had failed to do so. She asserted Mr Nihill did not become aware that the Agency had not been informed of the parents’ alleged reconciliation until he was notified by the Agency in its letter of 21 June 2021 of Miss Milne’s application to the Agency for collection of his child support liability and arrears from 17 March 2021 (see Exhibit 1, page 82).

10. She asserted Mr Nihill was not aware Miss Milne had applied to the Agency for the re-activation of a child support case in February 2014, and it was not until mid-June 2021 when he received an SMS message from the Agency requesting him to contact them that he subsequently became aware that Miss Milne had applied to the Agency in February 2014 for an administrative assessment of child support payable by him from 3 February 2014.

11. This was strenuously disputed by Miss Milne in her evidence at the hearing. She gave evidence that it was she who had notified the Agency of the parents’ earlier reconciliation in February 2012, following their separation in June 2011, but she said she did not notify the Agency of a reconciliation following their separation on in November of 2013 because, as far as a she was concerned, there had never been a reconciliation following the parents’ separation on 5 November 2013.

12. In this respect, she gave evidence that she and Mr Nihill had reached an agreement  when they separated again on 5 November 2013 that they would continue to reside under the same roof at the [Address 2] rented premise for the sake of providing a relatively stable and secure environment for their three young children while they continued to resolve their matrimonial differences; she said it was agreed that Mr Nihill would continue to pay the rent on the [Address 2] property to keep a roof over the family’s heads. As noted earlier in these reasons, both parents acknowledged they had always maintained separate bank accounts.

13. Consistent with her assertion that there had not been a reconciliation between the parents following their separation in November 2013, Miss Milne applied to the Agency on 3 February 2014 for a child support assessment (see Exhibit 1, pages 34 to 49). She consistently describes the parents’ relationship at the time of her application as “living together only”, and consistently identifies their earlier separation and reconciliation dates, including the latest separation date on 5 November 2013 (see Exhibit 1, page 35). At page 44 of her application, Miss Milne reaffirms the nature of the parents’ relationship as ‘living together’, and confirms they had never married, and also, at pages 44 to 47 of Exhibit 1, she lists the details of the three children, the subjects of the assessment application, [Child 1], [Child 2] and [Child 3] as being in her 100% care from the date of the parents’ latest separation on 5 November 2013.

14. Although [Ms A] relied in her submissions, as evidence that the parents had reconciled in late 2013 and were living as a couple the assertion that Mr Nihill had been providing care for the children since the alleged date of the parents’ reconciliation in late 2013, she and Mr Nihill acknowledged that Mr Nihill had not sought to challenge the care arrangements notified by Miss Milne in her child support assessment application of 100% to her and 0% to Mr Nihill.

15. [Ms A] submitted on behalf of Mr Nihill that her client was not aware that Miss Milne had applied for a child support assessment on 3 February 2014, nor was he aware she had also applied to Centrelink for, and received, family tax benefits A and B, until he moved out of the house at [Address 1] in May 2021 and became aware of Miss Milne’s child support assessment application in June 2021 when she applied to have his child support collected by the Agency together with arrears of child support from 17 March 2021. Mr Nihill asserted that no discussions had taken place between the parents regarding these applications, and that he did not become aware of the Centrelink benefits payments Miss Milne had been receiving until he found Miss Milne’s Centrelink payments statement shortly prior to leaving the [Address 1] house on 31 May 2021.

16. As noted above, Miss Milne’s child support assessment application to the Agency is recorded at pages 34 and following of the Agency’s papers, Exhibit 1. Page 32 of Exhibit 1 records an Agency officer named [Ms D] taking details of Miss Milne’s application including the care arrangements reflected above, and Ms Milne’s request that the collection of the child support payments by Mr Nihill be by private arrangement between the parents. The Agency file note also reflects Miss Milne informing the Agency that Mr Nihill was paying the rent on the property occupied by Miss Milne and the children at the time of her application.

17. At page 50 of the Agency papers, Exhibit 1 is a copy of the Agency’s letter dated 3 February 2014 sent to Mr Nihill notifying him of the Agency’s child support assessment issued by the Agency on 3 February 2014 for the period 1 December 2011 to 5 August 2012. 

18. At pages 58 to 59 of the Agency’s papers, Exhibit 1, is the Agency’s file record of a telephone conversation between the Agency officer [Ms D] referred to in paragraph 27 above, and Mr Nihill on 4 February 2014 in which the Agency officer, [Ms D] discusses the details of Miss Milne’s child support assessment application made on 3 February 2014, and notes Mr Nihill’s preference that the collection of his child support liability be by private negotiation between the parents rather than collection by the Agency, that he would be registered  “online” once Miss Milne’s application had been finalised, and that assessment notices regarding his child support payments would be notified to him by email and that he would have 14 days to activate his account with the Agency if he so wished.

19. A further Agency file note at page 60 of Exhibit 1 dated 10 February 2014 records Mr Nihill informing the Agency officer, [Ms D], on 4 February 2014, that he was working remotely in Western Australia at that time and did not have a residential address for the receipt of surface mail, and that his preference was to receive all Agency correspondence via his email address, details of which he provided to the Agency officer.

20. [Ms A] submitted at the hearing that, notwithstanding Mr Nihill having provided the Agency with his email address, he did not receive any further communications from the Agency regarding his child support assessment, in the form of assessment notices and the like from February 2014 until on or about 17 June 2021, when he received the Agency’s letter of 17 June 2021 and copies of his child support assessment notices for the period 17 June 2021 to 31 January 2022 and a text message from the Agency for him to call the Agency to discuss his child support details.

21. [Ms A] referred the Tribunal to an Agency computer screen record confirming that from 10 February 2014, it had deleted its communications with Mr Nihill. However, on his own admission and [Ms A]’s submissions at the hearing, he acknowledged that he did not direct his attention to his child support obligations following his discussions with the Agency’s officer, [Ms D], on 4 February 2014 regarding his child support liability as set out above until he was contacted by the Agency in June 2012 regarding Miss Milne’s application to have his child support liability collected by the Agency together with arrears of child support from 17 March 2021.

22. This suggests there was almost no level of communication between the parents over this period sufficient to satisfy the Tribunal that the parents were living as a reconciled couple from February 2014 until Mr Nihill left the family house on 31 May 2021.

23. [Ms A] also made submissions regarding two occasions on which Mr Nihill and Miss Milne travelled to [Country] to attend social functions at the invitation of a mutual friend of Miss Milne and Mr Nihill in January and April of 2019. The evidence of the parents at the hearing was that the invitations to attend these functions were issued separately, including the airline tickets, to each parent by the mutual friend, and although the parents may have travelled at the same time, there was no evidence that this was a mutual holiday arrangement between the parents or that the parents shared a room during their attendance in [Country], although according to Miss Milne’s evidence, they may have stayed in the house of the mutual friend. The Tribunal is not satisfied this amounts to evidence of the parents having reconciled and commenced living as a couple in a genuine domestic relationship.

24. The Tribunal is satisfied Miss Milne’s ‘online’ application for a child support assessment on 3 February 2014 reflected in Exhibit 1 at pages 34 to 49 recorded by the Agency in the file note of 3 February 2014 at page 32 of Exhibit 1 is evidence of her intention to continue the parents’ separation beyond 5 November 2013, and end the relationship, and that Mr Nihill was notified of her intention to end the relationship when she applied for a child support assessment on 4 February 2014, notice of which was given by the Agency to Mr Nihill when Agency officer [Ms D] contacted him on 4 February 2014 to discuss Miss Milne’s application with him.

Miss Milne’s evidence at the hearing

1. In response to [Ms A]’s submissions and Mr Nihill’s evidence at the hearing, Miss Milne gave evidence that from the time Mr Nihill ceased working remotely in Western Australia on the fly-in fly-out arrangement in late 2013 early 2014, she and Mr Nihill had reached an agreement that for the sake of the children and their security and wellbeing, they would continue to live separately under the same roof. She denied she and Mr Nihill had ever been in a committed relationship. She said that for the sake of the children she sought assurances from Mr Nihill that he would provide accommodation for her and the children while they attempted to resolve their relationship issues and she competed her [course], and assist with the children’s education costs.

2. She said they agreed to extend the lease of the [Address 2] property at [Suburb], and that he would be responsible for the rent on that property. She said it was their intention to secure a loan for the purchase of the property at [Address 1] owned by her mother as a permanent home for Miss Milne and the children, and that to that end, she and Mr Nihill had applied to [Bank] for a loan. As noted above, this application did not proceed because of issues regarding Mr Nihill being excluded as a co-owner of that property.

1. Both parents gave evidence of their having moved into Miss Milne’s mother’s property at [Address 1] on or about 17 April 2014, and Mr Nihill paying a number of rental payments on that property to Miss Milne’s mother, at Miss Milne’s request in 2019. Miss Milne also acknowledged that she had asked Mr Nihill to assist with the payment of some of the children’s school fees and other related expenses. She said she had made this request because Mr Nihill was not maintaining his child support payments pursuant to the child support assessment for which she had applied to the Agency in February 2014.

2. Miss Milne gave evidence that she had notified the Agency of the parents’ reconciliation following their separation in June 2011, but she said she did not notify the Agency that the parents had commenced living separately under the same roof at the [Address 2] address since late 2013 because the parents had not reconciled and were still working through their differences, and for the sake of the children’s security and comfort, they had agreed to live separately at the [Address 2] address, and ultimately at the [Address 1] address while they explored the prospects of securing a loan for Miss Milne to purchase that property from her mother and resolve their relationship issues.

3. In response to questioning by the Tribunal as to the sleeping arrangements and financial commitments existing between the parents from late 2013 onward, Miss Milne said Mr Nihill was sleeping on a couch in the lounge room or in one of the children’s beds, and generally living out of a suitcase. She said he was also staying at other addresses. Both parents gave evidence that they maintained separate bank accounts, and Miss Milne gave evidence that she ultimately secured funding for her to purchase the [Address 1] property from her mother and is currently responsible for the payment of the mortgage instalments on that property, which is registered in her name alone.

4. Consistent with her evidence that she and Mr Nihill had not reconciled following their separation in November 2013, and her intention to sever her relationship with Mr Nihill, Miss Milne said she applied to the Agency for a child support assessment on 3 February 2014 because she did not want to have to chase Mr Nihill for financial support for herself and the children, whom she asserted had been in her 100% care since separation in November 2013; a matter not challenged by Mr Nihill until the hearing.

5. Miss Milne gave evidence that she did discuss with Mr Nihill her intention to apply to the Agency for an assessment of child support, and that she was also receiving Centrelink family tax benefit payments. However, she said she was spending a considerable amount of her time at her sister’s house since she and Mr Nihill separated in November 2013 and had directed the Agency to forward her Agency correspondence to her sister’s address.

6. She acknowledged that she had called upon Mr Nihill to support her application for a car loan but asserted she has been responsible for maintaining the repayments on that loan and the servicing costs associated with the vehicle. She also acknowledged that she called upon Mr Nihill to contribute to some of the rental payments on the [Address 1] property in 2019, and some of the children’s education expenses because he had not been meeting his child support payments since her application for an assessment in February 2014.

7. Following the hearing on 17 December 2021, [Ms A] sought the Tribunal’s permission to adduce further evidence in the form of copies of affidavits by police constables [B] sworn on 15 January 2015 and [C] sworn on 14 January 2015. Both of these affidavits relate to the police investigation of an alleged assault by Mr Nihill on Miss Milne at [Suburb] in or about the early hours of 8 November 2014.

8. Police Constable [B]’s affidavit attests to an interview with Miss Milne in the early hours of 8 November 2014 in which Miss Milne made reference to Mr Nihill as her partner and her belief that he may have assaulted her earlier that evening. The affidavit of police constable [C] attests to the service of a Domestic Violence Application on Mr Nihill by police constable [C] at [Address 1] on 9 November 2014.

9. Although these affidavits attest to Miss Milne describing Mr Nihill as her partner, the Tribunal does not consider the affidavits contribute any useful evidence as to the nature or the status of the living arrangements between Mr Nihill and Miss Milne on or about 8 November 2014 other than the fact that their relationship was other than one of mutual reconciliation as a couple or that they were living as partners on a genuine domestic basis.

10. The Tribunal is satisfied that the evidence, on balance, is that the parents separated on 5 November 2013, that although Mr Nihill and Miss Milne continued to reside from that date under the same roof at [Address 2] and from 17 April 2014 at [Address 1] until 31 May 2021 and when Mr Nihill left that house at the request of Miss Milne, Miss Milne had demonstrated her intention to sever their relationship by applying on 3 February 2014 to the Agency for an administrative assessment of child support payable by Mr Nihill. Consistent with that position, the Tribunal finds that the parents have maintained separate financial and living arrangements such that they could not be considered to be living together as partners in a genuine domestic relationship, and that Miss Milne had communicated her intention to end their relationship to Mr Nihill by applying to the Agency for a child support assessment in February 2014.

11. The Tribunal is also satisfied that there was no evidence before it at the hearing to suggest that Mr Nihill had made any payments to Miss Milne from 17 March 2021 which could be considered child support payments, and that, consequently, the arrears of child support calculated by the Agency from 17 March 2021 to 16 June 2021 in the amount of $4,688.40 are correctly outstanding and collectable.

12. As the Tribunal has reached the same conclusion as the objections officer in the decision under review, the Tribunal therefore affirms that decision.

DECISION

The decision under review is affirmed.