Sosebee and Pemberton (Child support)

[2021] AATA 3610

Sosebee and Pemberton (Child support) [2021] AATA 3610 (3 August 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/MC021580

APPLICANT:  Ms Sosebee

OTHER PARTIES:  Child Support Registrar

Mr Pemberton

TRIBUNAL:Member C Breheny

DECISION DATE:  03 August 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – child support agreement – whether agreement was properly accepted – whether terms of agreement should be varied  – 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. Ms Sosebee and Mr Pemberton are the separated parents of [Child 1], born February 2007. A child support case has been registered with the (then) Department of Human Services – Child Support (Child Support) since 25 April 2017. Mr Pemberton is the parent liable to pay child support to Ms Sosebee on the basis that she has 100% care of [Child 1].

2. On 15 December 2020 Mr Pemberton contacted Child Support and lodged an application for acceptance of a binding child support agreement (BCSA). The agreement was signed by both Ms Sosebee and Mr Pemberton and states that it is binding from 1 January 2021. On 6 January 2021 Child Support accepted the BCSA with effect from 1 January 2021.

3. On 15 January 2021 Ms Sosebee objected to the decision stating that the agreement submitted by Mr Pemberton should be changed, as it did not make sense. Ms Sosebee stated that further clauses should be added to the agreement. On 24 April 2021 an objections officer of Child Support decided to disallow the objection, and found that a BCSA cannot be varied, but can only be terminated by replacing it with a new BCSA.

4. On 25 May 2021, Ms Sosebee applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) for an independent review of the objection decision. The application was heard on 3 August 2021. Ms Sosebee and Mr Pemberton attended the hearing by conference telephone and gave evidence on affirmation. A representative of the Child Support Registrar did not attend the hearing. I had before me the statement and documents provided by Child Support pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, received on 11 June 2021 (documents numbered 1–146). I also considered additional written submissions made by Ms Sosebee’s legal representative ([named] from [business name]), marked A1–A14.

ISSUES & CONSIDERATION

1. The child support scheme provides for the parents of a child to make a limited child support agreement (a child support agreement that does not require legal advice) or a binding child support agreement (requiring legal advice).

2. The Child Support (Assessment) Act 1989 (the Act) contains specific provisions regulating the terms of such child support agreements and setting out a framework for the agreements to be accepted and implemented by the Registrar. 

3. In this case there is no dispute that Mr Pemberton lodged a BCSA with Child Support on 15 December 2020. Child Support accepted and implemented this agreement with effect from 1 January 2021. Neither Mr Pemberton nor Ms Sosebee contended that the agreement was not properly made pursuant to section 80C of the Act. There is also no dispute that both parties received the required legal advice prior to signing the agreement.

4. Instead Ms Sosebee submitted that she was unduly influenced and under severe pressure to sign the agreement. She would not have entered into the BCSA but for the pressure applied by Mr Pemberton.

5. Ms Sosebee said that her mother was very ill, and she therefore needed to relocate from Western Australia (WA) to Victoria as soon as possible to look after her mother. Mr Pemberton would not agree that she could leave WA with [Child 1] unless she signed the BCSA. Ms Sosebee said that she had drafted an alternative BCSA, which included specific provisions relating to child support payable in the event Mr Pemberton reduced his income. Ms Sosebee lodged another agreement, but Mr Pemberton refused to sign this alternative agreement, leaving her no option but to sign the agreement proposed by Mr Pemberton.

6. Mr Pemberton said that he was under pressure to sign the agreement from Ms Sosebee, because she would not let him have future care of [Child 1] unless he signed the agreement.

7. Section 80D of the Act deals with the termination of a binding child support agreement and states, at subsection 80D(1), that a binding child support agreement may be terminated only by:

   (a)   a provision being included in a new binding child support agreement made by the parties to the previous agreement to the effect that the previous agreement is terminated; or

   (b)  the parties to the previous agreement making a written agreement (a termination agreement):

   (i)  that is binding on the parties in accordance with subsection (2); and

   (ii)  to the effect that the agreement is terminated; or

   (c)   a court order setting aside the previous agreement under section 136.

8. There is no termination agreement or a new BCSA, which contains a provision to the effect that the previous agreement is terminated. Paragraphs 80D(1)(a) and (b) thus do not apply in this case.

9. Ms Sosebee submitted through her legal representative that the current BCSA should be terminated in accordance with paragraph 80D(1)(c) of the Act, i.e. a court order setting aside the agreement pursuant to section 136 of the Act.

10. This is not a power that this Tribunal has. The Tribunal has the same powers as the Child Support Registrar. Pursuant to section 89 of the Child Support (Registration and Collection Act) 1988 (the Registration and Collection Act) it may review a decision under subsection 87(1) on an objection to a decision (the original decision) of the Registrar.

11. Section 80 of the Registration and Collection Act provides for decisions against which an objection may be lodged. Relevant provisions in relation to child support agreements relate to decisions to terminate a limited child support agreement and decisions to accept or refuse to accept child support agreements.

12. Subsection 92(1) of the Act provides that the Registrar must accept an agreement if it was properly made. As noted above, neither party submitted that the BCSA lodged on 15 December 2020 was not properly made and therefore should not have been accepted.

13. Thus, in terms of the decision that I am able to review, I find that the BCSA lodged on 15 December 2020 was correctly accepted by Child Support and I affirm that decision. In terms of the submission that the agreement should be terminated pursuant to section 136 of the Act, Ms Sosebee may apply to a court having jurisdiction under this Act for the court to set aside the agreement.

DECISION

The decision under review is affirmed.