Putchett and Bubak (Child support)

[2024] AATA 2528

Putchett and Bubak (Child support) [2024] AATA 2528 (25 June 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/PC027237

APPLICANT:  Mr Putchett

OTHER PARTIES:  Child Support Registrar

Ms Bubak

TRIBUNAL:Member M Martellotta

DECISION DATE:  25 June 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – registrable overseas maintenance liability – registering an overseas maintenance liability – disputing the quantum of arrears – 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 Putchett seeks review of a decision made by Services Australia (Child Support). An original decision was made on 16 April 2023 to accept an application to register and collect child support arrears of GBP19,974.06 (AUD33,915.95) from 25 June 2003 to 29 June 2010. On 13 October 2023 the arrears amount was adjusted to GBP19,874.60 (AUD33,746.15). Mr Putchett objected to the decision. His objection was disallowed on 9 December 2023.

2. Mr Putchett lodged an application for review on 20 December 2023. On 25 March 2024 the Tribunal refused his application to be represented by his current partner at the hearing. On 9 May 2024 the Tribunal granted Mr Putchett’s request to have his partner Mrs Putchett provide evidence at the hearing. On 17 May 2024 the applicant and second party each requested that hearing of the matter be rescheduled. The request was granted.

3. A hearing was held on 25 June 2024. Mr Putchett and Ms Bubak attended by telephone. The Tribunal also received evidence from Mrs Putchett. In addition to submissions and evidence received at hearing, the Tribunal also considered materials prepared and distributed by Child Support.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (the Act) and the Child Support (Registration and Collection) Regulations 2018.

2. Child support legislation is interpreted by Child Support with the aid of the Child Support Guide (the Guide). The Tribunal may be guided by policy but is not bound to follow it.[1] The Federal Court[2] has observed that in the absence of any contrary statutory indication, lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task. A lawful approach allows the adoption of appropriate policy as a guide but not so as to control the making of the decision and the Tribunal adopts that approach.

   [1] Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634.

   [2] G v MIBP [2018] FCA 1229.

3. The issue in this case is whether the application to register an overseas maintenance liability is to be accepted.

CONSIDERATION

1. The Child Support Registrar can register overseas maintenance liabilities or enter the particulars of an overseas maintenance liability that is not registrable and arising in reciprocating jurisdictions.

2. Subsection 4(1) of the Act defines a registrable maintenance liability. It includes a maintenance assessment issued by an administrative authority of a reciprocating jurisdiction. Schedule 2 to the Regulations specifies that the United Kingdom (UK) is a reciprocating jurisdiction.

3. Section 18A of the Act sets out which overseas maintenance liabilities are registrable. These include a liability of a parent to pay a periodic amount for the maintenance of the child and also arrears arising from the above (subsection 18A(4) of the Act).

4. Subsection 25(1) of the Act provides that a payee who is resident of a reciprocating jurisdiction can apply for the liability to be registered. Subsection 25(1B) of the Act provides that an application must be either made by the payee and given to the Registrar by an overseas authority of the reciprocating jurisdiction or made to the Registrar by that overseas authority on behalf of the payee. Once registered the liability to pay maintenance to another person becomes a debt due to the Commonwealth.[3]

   [3] Section 30 of the Act

5. In this case according to Child Support records on 3 January 2023 Child Support received an application from the Reciprocal Enforcement Maintenance Orders (REMO) to enforce arrears under an ended overseas child support assessment (United Kingdom Child Maintenance Services – UKCMS). The parties to that assessment were Mr Putchett and Ms Bubak and the assessment related to their two children [Child 1] and [Child 1]. That assessment was active from 25 June 2003 to 29 June 2010.

6. Evidence provided at hearing also confirmed and the Tribunal finds that Mr Putchett left the UK in 2010 and he is a resident of Australia. Ms Bubak is a resident of the UK.

7. Consistent with oral evidence provided by Mr Putchett and Ms Bubak is that after Mr Putchett moved to Australia, an Australian child support assessment was registered, which was for a different period (2011 to 2014). That assessment was for the same parties and children.

8. On that aspect the Tribunal notes that this is not a case of dual liability as there is no overlap between the UK and Australian child support assessment. The UK assessment had fully ended before the Australian assessment commenced, and the Australian assessment had fully ended with no arrears owing prior to the application was made to register the arrears arising from the UK assessment.

9. At hearing Ms Bubak explained that she had for some years been seeking a variation to the UK assessment because it did not utilise Mr Putchett’s correct income in that it failed to include dividends. She said that the matter was not fully resolved until she was able to obtain an order by a UK Tribunal which directed UKCMS to amend assessment to vary Mr Putchett’s income for a past period. She said that it was that variation which has resulted in the arrears for which she seeks enforcement.

10. Mr Putchett told the Tribunal that he accepts that there are likely to be arrears owing from the UK assessment, but he disagrees with the quantum of those arrears. He stated that he disagrees with the findings of fact made by the UK Tribunal. He also stated that UKCMS have never provided him with a satisfactory explanation of how they have calculated the arrears. Mr Putchett referred the Tribunal to what he submitted were inconsistencies in documents provided by the UK agency. He also stated that the UKCMS have told him that they have no record of a letter sent to him explaining the arrears calculations. He said that he has written to UKCMS seeking a review of the calculations, but he is yet to hear back from anyone.

11. Mrs Putchett provided evidence which in effect repeated Mr Putchett’s evidence of his experience of interactions with the UKCMS and Child Support.

12. The Tribunal notes the following information contained in the hearing papers:

    a)Summary decision notice dated [in] July 2016 made by the First Tier Tribunal (Social Entitlement Chamber) Telford UK, relating to Ms Bubak’s application for review of assessments made by UKCMS. That decision made findings regarding Mr Putchett’s income and directed that the UK maintenance assessments be reassessed in accordance with their findings.

    b)Correspondence from HM Courts and Tribunal Services (Maintenance Enforcement Business Centre) confirming Ms Bubak’s application for enforcement of arrears under a UK case (REMO application).

    c)On 17 May 2023 Child Support wrote to the enforcement agency on behalf of Mr Putchett seeking clarification of the arrears. A response from Maintenance Enforcement Business Centre, noted that If Mr Putchett wished to contest arrears, he will need to take it up directly with UKCMS and provided further details in that regard.

    d)Mr Putchett was sent correspondence dated 5 September 2023 providing a breakdown of arrears and calculations from the UKCMS identifying the difference between the amount assessed and amount paid. It advised that if he disagreed with any of that information, he would need to provide evidence of the accounting error.

13. The question for this Tribunal is whether the decision to accept and register the overseas maintenance liability was correct. The legislation provides specific criteria[4] whereby the Registrar of Child Support may or must not register a liability.

    [4] Subsections 25(2B) and 25(2C) and section 25C of the Act

14. The Tribunal is satisfied that none of these provisions apply in this particular case. The payer is a resident of Australia, this is not a case of dual liability and there is nothing to indicate that the liability has arisen in a manner inconsistent with the international maintenance agreement relied upon by the payee.

15. The main issue raised by Mr Putchett is that he disagrees with the quantum of arrears as determined by the overseas authority and also disagrees with findings of fact made by a UK Tribunal regarding what components should form part of his assessable income. The Registrar of Child Support (or the Tribunal) is not able to vary an overseas maintenance liability. Parents can apply to the judicial or administrative authority in the country where the overseas parent resides for a variation.[5] This appears to be consistent with the advice provided to Mr Putchett by the UKCMS and the advice provided by REMO.

    [5] The Child Support Guide at 3.6.4

16. In this matter, the Tribunal concludes that the requirements which permit registration of the overseas maintenance liability have been satisfied.

17. The Tribunal for these reasons affirms the decision under review.

DECISION

The decision under review is affirmed.