Noyes and Noyes (Child support)

[2023] AATA 4292

Noyes and Noyes (Child support) [2023] AATA 4292 (6 November 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/MC026200

APPLICANT:  Mr Noyes

OTHER PARTIES:  Child Support Registrar

Ms Noyes

TRIBUNAL:Member S Letch

DECISION DATE:  6 November 2023

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – whether the application for an administrative assessment was correctly accepted – the application correctly 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

1. [Mr Noyes] and [Ms Noyes] are the parents of [Child 1]. This matter concerns a decision by Child Support to accept [Ms Noyes’] application for a child support assessment made on 12 October 2022. [Mr Noyes] argues that he and [Ms Noyes] had not separated until mid-December 2022. Accordingly, he says the application made in October 2022 ought not have been accepted.

2. It is convenient by way of background to set out some extracts from the objections officer decision dated 5 May 2023:

   …

   Decision being objected to:

   [Mr Noyes] is objecting to our decision, made on 5 November 2022 to accept [Ms Noyes’] application for a

   registered child support assessment (Application for Assessment (AFA)) from 12 October 2022.

   [Mr Noyes] has objected to this decision because he believes that they did not actually separate until 15

   December 2022.

   …

   On 14 February 2023, [Mr Noyes] objected to this decision. [Mr Noyes] stated:

   - They were living under the one roof and that they attended a family commemoration on 15

   October 2022.

   - They attended a family commemoration on 15 October 2022, and they are still together.

   - [Days later] he travelled overseas and returned on 15 December 2022 and he

   believes this is the date that [Ms Noyes] definitely left.

   - [Ms Noyes] travelled overseas on [a later day in] December 2022.

   On 29 March 2023, we spoke with [Ms Noyes] about [Mr Noyes’] objection. [Ms Noyes] advised:

   - They were already separated under the same roof from 30 August.

   - She attended the commemoration as she is a member of the [Country 1] community.

   - They were already separated when [Mr Noyes] left for Africa.

   On 28 April 2023, [Mr Noyes] sent in the following evidence to support his obj:

   - A document from Victoria Police referring him to support services.

   - A screenshot of a text message referring him to support services.

   …

   On objection, [Mr Noyes] stated they had not separated until 15 December 2022, when he returned home

   from overseas to find [Ms Noyes] had moved with [Child 1].

   This is not definitive evidence of the separation date. [Mr Noyes’] evidence does not categorically

   demonstrate to us the date of separation, so we are unable to make any determination that they

   separated on 15 December 2022.

   Therefore, in the absence of any evidence which clearly shows a date from which we should

   commence the assessment, we make the decision that the commencement date of the assessment is

   correct.

   The objection is disallowed.

   …

3. [Mr Noyes] and [Ms Noyes] participated in the Tribunal’s hearing by video conference. Both gave sworn evidence. The Tribunal took into account the Child Support hearing papers, and additional documents submitted by [Mr Noyes], including statutory declarations from his adult son, and [Child 1’s] godmother.  

4. [Mr Noyes] told the Tribunal that there had been an incident [on a day in] September 2022 involving police attending the home, and that shortly after, [in early] October 2022, he consented to an intervention order being made, notwithstanding that he disputed [Ms Noyes’] account of what had occurred. [Mr Noyes] said he was the person assaulted, not [Ms Noyes]. He confirmed he departed overseas on a pre-planned trip which had been organised in February/March 2022. [Mr Noyes] said that he and [Ms Noyes] had travelled overseas independently together before, citing a trip [Ms Noyes] took in late 2021; there was nothing unusual in him travelling overseas by himself. [Mr Noyes] rejected any suggestion of financial, physical, or other abuse. [Mr Noyes] said he was still supporting the household whilst overseas; he continued to pay the mortgage. He said they did “bulk shopping” every few months and the freezer was “full of meat”.  [Mr Noyes] said [Ms Noyes] had brought her girlfriend and child into the house and that they did not pay for food or other expenses.

5. [Mr Noyes] confirmed that he and [Ms Noyes] maintained separate bedrooms from early September 2022 after he had returned from a work trip. He said this was not unusual; the relationship had been very volatile virtually since the marriage began around 10 years ago. When either of them was “not happy”, they would sleep in separate rooms. This had occurred on multiple occasions over the years. [Mr Noyes] gave an example where he said [Ms Noyes] had kept his house keys and he was forced to sleep in his car; he complained to police and it was suggested he call a locksmith. He said [Ms Noyes] only decided to open the door as the locksmith approached the house.

6. [Ms Noyes] said she stopped working after the incident [in] September 2022 as [Mr Noyes] had broken her finger trying to snatch her phone from her. She said [Mr Noyes] had stopped providing money for food in late August 2022. She said he paid the mortgage and some bills; however, she paid bills for water and rates (which she stopped later after the separation). She applied to Centrelink in October 2022 for a “separated under one roof” payment, which was granted to her.  

7. [Mr Noyes] suggested [Ms Noyes] cannot say she was separated when, in the police report (starting at folio A29) of [the day in] September 2022, it is recorded that she is “married”. [Ms Noyes] said that the officer had asked her how long she had been married, and she had responded that they had been married for nine years. The police officer recorded that in the report.

8. Both parties confirmed that family law property matters are currently on foot. [Mr Noyes] rejected the suggestion from [Ms Noyes] that he has not been engaged with medication process, which he said he initiated.

9. The Tribunal asked [Mr Noyes] what he thought would happen on his return to Australia mid December 2022. He said that given the pattern of the relationship, he considered this was another instance of the parties sleeping separately and that the relationship would stabilise again. In his mind, there was “nothing different this time”. On previous occasions when they were sleeping in separate rooms, neither of them thought they were “separated”.

10. [Ms Noyes] confirmed that the marriage had always been volatile. However, she said this occasion was different; she had examined his phone in April 2022 and discovered that he was having “extra-marital relationships” with at least 12 other girls. She said she had come to know that he had been asking people to look for a younger woman for him as “the older he was getting, the younger the woman he needed”. She said she tried to confront [Mr Noyes] with the evidence in July 2022, but he dismissed it. She decided to “stop talking to him”, and put an “ultimatum” to him, and told him he had “lost the right to touch her”. The argument they had in early September 2022 was not about [Child 1’s] school issues, but about the alleged infidelity.

11. [Mr Noyes] said that [Ms Noyes] had “broken into his phone” and had later apologised for doing so. [Mr Noyes] pointed to a card [Ms Noyes] had sent to him in May 2022 (folio A7) in which she expressed appreciation for him being a “great husband”. [Mr Noyes] alleged he had caught [Ms Noyes] kissing her girlfriend in their home; he said he only engaged in a “virtual affair”, and that [Ms Noyes] had an “actual affair”.  

Application of the law

1. A parent may apply for child support assessment if, amongst other things, they are not living with the other parent as their partner on a genuine domestic basis: section 25 of the Child Support (Assessment) Act 1989. A “member of a couple” is defined in section 5 as including a person who is legally married to another person and is not living separately and apart from the other person on a permanent or indefinite basis.

2. The relevant law is accurately and simply summarised in simple terms in the Child Support Guide at 2.1.1:

Living together

A parent or non-parent carer may not apply for a child support assessment if they are living as the partner of the other parent, or a parent, of the child on a genuine domestic basis.

The factors to be considered (SS Guide 2.2.5.30) in establishing whether people are living together as partners on a genuine domestic basis are:

·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.

1. The Social Security Guide at 2.2.5.30 relevantly provides as follows:

   Each case must take into consideration a person’s particular situation, including but not limited to:

   ·the impact of family and/or domestic violence

   ·a person’s sexual orientation – particularly where it has not been disclosed to others

   ·a person’s cultural background

   ·a person’s ethnicity, or

   ·a person’s religious beliefs.

   …

   Family and/or domestic violence

   The presence of family and/or domestic violence, may indicate that a person is not a member of a couple and needs to be considered when assessing each of the 5 factors. Evidence may be required to support the presence of the family and/or domestic violence.

   Family and domestic violence includes, but is not limited to physical, sexual, financial, emotional and psychological abuse. All types of family and domestic violence should be considered, together with the 5 factors.

   …

   Determining living separately & apart on a permanent or indefinite basis

   A person is considered living separately and apart on permanent or indefinite basis when they are no longer a member of a couple because the relationship has broken down and there is a level of physical and/or emotional estrangement, resulting in one or more parties having no intention to reconcile. An emotional estrangement can occur independently of whether the parties live in the same house or not (2.2.5.50).

   The decision maker must establish if a breakdown in the relationship has led to an estrangement between the 2 people and if the separation is on a temporary, indefinite or permanent basis.

2. Importantly, the guidelines correctly observe that that an intention not to reconcile a relationship which has broken down can be formed by “one or more parties”. In other words, if, at the time she applied for a child support assessment, [Ms Noyes] had formed the view to bring the relationship to an end, and a consideration of the five factors objectively supported a conclusion of the absence of a “member of a couple” relationship, the ultimate conclusion would be that she satisfied the requirement to make an application for a child support assessment on the basis that she and [Mr Noyes] were no longer members of the same couple.

3. The parties agreed on a number of matters; however, there was some divergence. As a general observation, to the extent of any inconsistency, I generally preferred [Ms Noyes’] recollection of events.

4. I accept that [Mr Noyes] genuinely believed that the incidents occurring in late 2022 were consistent with a pattern in the relationship and that upon his return to Australia in December 2022, he had not expected [Ms Noyes] to have vacated the marital home. I believe he genuinely thought that the couple would continue the same volatile pattern entrenched in the relationship since the marriage began.

5. However, I also accept [Ms Noyes’] evidence that she had formed the clear intention to end the relationship, in part as a result of what she observed as infidelity on [Mr Noyes’] part, and in part as a result of the incident which occurred on [the day in] September 2022 involving police, and the subsequent intervention order. I accept she had formed the clear intention to bring the relationship to an end by the time she made her application for a child support assessment on 12 October 2022. Consistent with having formed that view, she approached Centrelink to make a claim for income support on the basis that she was “separated under one roof”, a claim which Centrelink accepted. I observe that there are serious penalties for making false representations to Centrelink; I find here that [Ms Noyes] truthfully reported to Centrelink that she was no longer a member of a couple with [Mr Noyes].

6. In terms of the five factors, I am satisfied that [Ms Noyes] had become largely financially independent from [Mr Noyes] in October 2022 by accessing Centrelink assistance. I accept [Ms Noyes’] evidence that from late August 2022, [Mr Noyes] had ceased to provide financial assistance, including monies for food. [Mr Noyes] was absent from the household from mid-October 2022 on a pre-planned overseas trip; I find that unbeknownst to [Mr Noyes], [Ms Noyes] was actively taking steps to get her arrangements in order so that she could leave with [Child 1] prior to [Mr Noyes’] return. She had completely severed any commitment to the relationship. There was a complete absence of any financial, social or physical commitment by the time of her application. I am comfortably satisfied that, in weighing the five factors, the marriage had completely broken down and that [Ms Noyes] was living separately and apart from [Mr Noyes] on a permanent basis.

7. Consequently, [Ms Noyes] was entitled to make an application for a child support assessment on 12 October 2022. As this is the same conclusion as the objections officer, the decision under review will be affirmed.

DECISION

The decision under review is affirmed.