Tallents and Engleman (Child support)

[2023] AATA 1648

Tallents and Engleman (Child support) [2023] AATA 1648 (30 May 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/MC025322

APPLICANT:  Mr Tallents

OTHER PARTIES:  Child Support Registrar

Ms Engleman

TRIBUNAL:Member P Jensen

DECISION DATE:  30 May 2023

DECISION:

The decision under review is set aside and, in substitution, the document dated 24 August 2021 is not accepted as a limited child support agreement.

CATCHWORDS

CHILD SUPPORT – child support agreement – whether the agreement meets the requirements of a limited child support agreement – decision under review set aside and substituted

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

1. Mr Tallents and Ms Engleman are the parents of two children. A child support case was registered with Services Australia – Child Support (Child Support) from 24 October 2018. Mr Tallents has always been administratively assessed as the parent who is required to pay child support pursuant to the Child Support (Assessment) Act 1989 (the Act).

2. The Act provides for the making of what are called limited child support agreements. On 28 September 2022, Ms Engleman provided Child Support with a document (the Document) dated 24 August 2021 which purported to satisfy the legal requirements of a limited child support agreement: section 80E of the Act. On 10 October 2022, Child Support decided to accept the Document as a limited child support agreement. Mr Tallents’s rate of child support payable consequently increased from $22,282 per annum to $48,000 per annum. Mr Tallents promptly objected to that decision. An objections officer disallowed his objection. He promptly applied to the Tribunal for further review. I heard the matter on 23 May 2023. Ms Engleman and Mr Tallents gave sworn evidence via MS Teams. Mr Tallents was represented by [named], barrister.

3. One of the requirements of a limited child support agreement is that “it is signed by the parties to the agreement”: paragraph 80E(1)(b) of the Act. At the hearing, both parents agreed that the only issue in dispute was whether the signature in the Document that purported to be Mr Tallents’s signature was in fact his signature. Mr Tallents stated that it was not his signature. Ms Engleman stated that it was his signature. Neither parent provided any expert evidence in respect of the disputed signature. I have no expertise in signature verification. Mr Tallents provided samples of his signature, including on his passport and driver’s licence. Ms Englemanprovided samples of Mr Tallents’s signature, including his affidavits which had been lodged in legal proceedings. There is some variation in the sample signatures and the disputed signature falls within that range of variation.

4. When Child Support registered the child support case, it assessed Mr Tallents’s rate of child support payable. Ms Engleman had the option of also requiring Child Support to collect the child support payable. She elected to attend to its collection privately.

5. Ms Engleman provided an undated text message which she said was sent on 2 May 2019. It appears to concern the parents’ property settlement, with Mr Tallents stating: “I told you I’ll will [sic] pay you out I haven’t gone back on my word if you’re desperate so am I at this stage is there anything else you need”.[1]

   [1]Page 218 of the hearing papers.

6. Ms Engleman started legal proceedings in November 2020. She sought orders concerning the care of the children and the redistribution of the parents’ assets and liabilities.

7. At the hearing, both parents agreed that they re-established lines of communication around 15 July 2021.[2]

   [2]Page 266 of the hearing papers.

8. On 4 August 2021, Ms Engleman’s solicitor, [Mr A] of [Law firm], sent a letter to Ms Engleman. It included the following:

   I refer to your written and verbal instructions via telephone and in person in the presence of your friend [Mr B]. On 27 July 2021 you advised me that Mr Tallents and yourself have entered into your own private agreement. You formally instructed me to file a Notice of Discontinuance for your Initiating [Application].

   Whilst I am fully supportive of your efforts to resolve your financial and parenting dispute without the need for litigation, I strongly advise you against discontinuing your Initiating Application in the absence of any final Orders, whether it be by agreement or by judicial determination.

   …

   This is simply too great a risk to take on the strength of a handshake deal with Mr Tallents, who has shown little or no propensity to honour any previous agreements between you.

   …

   I confirm your instructions you have entered into a second informal financial agreement with Mr Tallents. I have not sighted any document to this effect, nor have you instructed me to draft any such document.

   …

   I strongly suggest you instruct me to agree to a Court ordered mediation tomorrow with the view to formalising your agreement with Mr Tallents by way of an actual Final Order made by consent.

9. Ms Engleman did not follow [Mr A]’s advice. On 5 August 2021 the Federal Circuit Court (the Court) made consent orders. In respect of “parenting”, the children were to live with Ms Engleman and spend time and communicate with Mr Tallents as agreed in writing. In respect of “property”:

   4. All previous orders be discharged.

   5. All extant applications for property and spousal maintenance be otherwise dismissed and that the hearing before Judge [name] listed on 27 June 2022 be vacated.

   6.Each party bears their own legal costs.

10. Ms Engleman provided a transcript of what occurred in the Court on 5 August 2021. Both parents were legally represented. [Mr A] informed the Court:

    My instructions are they’re reaching a formal arrangement amongst themselves in relation to property and finances. My client has the utmost faith that the father is going to uphold his commitments. … Your Honour, there’s an informal agreement amongst them. I’ve made some inquires in relation to that. It is what it is. My instructions are that she wishes to withdraw the proceedings in its entirety and that she has faith in the respondent to do what she says is right by her and the children.

11. At the Tribunal hearing, Mr Tallents said the informal agreement was an agreement that he would pay his administratively assessed rate of child support. I consider it unlikely that Ms Engleman would have agreed to discontinue the legal proceedings on the basis that Mr Tallents would pay the child support that he was already legally required to pay, and had been paying.

12. Ms Engleman said she drafted an agreement prior to 5 August 2021 but Mr Tallents told her he would not sign it until the legal proceedings had been withdrawn. Ms Engleman said she told [Mr A] that she had drafted an agreement but she did not show it to him.

13. The Document is entitled “Financial Agreement”. It is dated 24 August 2021. It is a lengthy document. It provides that Mr Tallents will pay $4,000 per month in child support, plus all “extra curriculum activities, health related, health insurance”. It states that Ms Engleman shall reside at a specified address and Mr Tallents shall pay the associated costs, including “upkeep, mortgage payments, utility bills, property taxes, and repair costs”. It states that Ms Engleman shall be entitled to two charges, each of $1,250,000, over two properties. An additional provision states that “ Engleman is to place Charges over any assets or business trading owned by the [Company] to the value of $3,500,000 which is the amount to be received by Engleman in settlement of financial matters.” It includes other provisions that I will not reproduce here.

14. Each parent gave inconsistent evidence concerning the child support that Mr Tallents paid until September 2022, which was when Ms Engleman provided a copy of the Document to Child Support. However, in broad terms, both parents agreed that there were times when Mr Tallents was paying approximately $800 per week and times when he was paying less. I was left with the impression that Mr Tallents always paid at least his administratively assessed rate of child support. Both parents agreed that the child support payments were made via bank transfers. Mr Tallents offered to provide his bank account statements, adding: “The statements don’t lie.” Importantly, there was no suggestion that Mr Tallents ever paid $1,000 per week, or $4,000 per month (as required by the Document) during the period from August 2021 to September 2022.

15. The Document has been signed by Ms Engleman. It appears to have been signed by Mr Tallents. Both signatures appear to have been witnessed by [Mr B]. There is no provision for a second witness. Mr Tallents said he did not know of [Mr B] until around July 2021. [Mr B] is the “[Mr B]” referred to by [Mr A] in his letter dated 4 August 2021: “I refer to your written and verbal instructions via telephone and in person in the presence of your friend [Mr B].”

16. At the Tribunal hearing, Ms Engleman said that the Document was signed and witnessed in her house while the children were at school.

17. On 21 October 2022, [Mr B] made a statutory declaration: “That I have never seen any agreement between Tallents or Engleman. Nore [sic] have I signed anything in regard to them.” Mr Tallents provided the statutory declaration to Child Support. At the Tribunal hearing, Mr Tallents explained that when he became aware that Ms Engleman had claimed that he had signed the Document, and [Mr B] had witnessed his signature, he contacted [Mr B]. He said he asked [Mr B] whether he had signed the Document and he replied, “No”. Mr Tallents then said, “You need to give me something or I’ll take things further with you too.” At the Tribunal hearing, Mr Tallents explained that he had been referring to the legal consequences of making a false statement. There is a logical flaw in Mr Tallents’s account of events: If [Mr B] had not signed the Document, he had not made a false statement. In any event, [Mr B] subsequently provided the statutory declaration.

18. Neither parent provided further documentation from [Mr B]. Neither parent made arrangements for [Mr B] to give oral evidence during the hearing. Ms Engleman provided written submissions which included the following:

    Shortly after [24 August 2021], in or about the first week of September [2021] [Mr B] was arrested and incarcerated and released in August [2022]. [Mr B] has had a hard life and I believe suffers from depression and on many occasions I can recall him forgetting a lot of things. It is for this reason that I respect what [Mr B] has asked and that is to be kept out of this matter as he wants no further involvement as he has his own problems to deal with. I therefore did not go as far as having [Mr B] sign a further document stating that he knew about the Agreement that Mr Tallents and I had made in order for Court proceedings to be withdrawn.[3]

    [3]The written submissions continue on page 228 of the hearing papers.

19. At the hearing, in response to my questions, Ms Engleman said that [Mr B] has been convicted of many offences over the years, including many offences of dishonesty.

20. In my opinion, there are two main reasons to doubt that the signature on the Document that purports to be Mr Tallents’s signature is in fact his signature. First, according to the Document, [Mr B] witnessed the parents signing the Document. However, [Mr B] has given sworn evidence that he did not witness Mr Tallents signing the Document. Ms Engleman declined to provide further evidence from [Mr B] on the issue.

21. Second, the parents consented to an Order which effectively provided that there was to be no redistribution of assets and liabilities. Both parents also agreed that there was an informal agreement. On Mr Tallents’s account of events, the consent Order, coupled with an informal agreement that he would pay his administratively assessed rate of child support payable, constituted the entirety of the agreement between the parents. On Ms Engleman’s account of events, Mr Tallents agreed to be bound by a legal document that would result in the redistribution of assets and liabilities but that document could not be a consent order concerning that very issue; the consent order had to state the opposite. If Mr Tallents made such a statement, there were obvious reasons to doubt his sincerity. If that was not immediately apparent to Ms Engleman, it was explained to her by her solicitor in his letter dated 4 August 2021. On that view of things, it would be unlikely that Mr Tallents, having successfully persuaded Ms Engleman to discontinue the legal proceedings that might have resulted in a redistribution of assets and liabilities, and having secured a consent order that effectively stated that there was to be no redistribution, then promptly signed the Document which provided for such a redistribution.

22. Towards the end of the hearing, Ms Engleman referred back to the transcript of the Court proceedings and the reference to an informal agreement. She rhetorically asked: “If [the Document] isn’t that agreement, where’s the agreement?” It is not my role to make findings of fact as to what informal agreement might have been reached by the parents. It is possible that the informal agreement was never reduced to writing. As noted earlier, the issue in the current proceedings is whether the signature on the Document that purports to be Mr Tallents’s signature is in fact his signature. Viewing the evidence as a whole, I consider it more likely that it is not his signature. The Document therefore does not satisfy the requirements of section 80E of the Act and cannot be accepted as a limited child support agreement.

23. During the hearing, there was a discussion about an exchange of emails between the parents dated 21 June 2022.[4] Ms Engleman referred to “the agreement that you signed”. If Mr Tallents responded to the email, Ms Engleman did not provide his response. After the hearing on 23 May 2023, Ms Engleman provided further submissions in respect of the emails:

    In relation to todays [sic] Hearing there was a reference made to an email sent to Tallents in regards to Agreement. It was actually an email which was a follow on from an email that Tallents had sent me so I find it hard to believe that he did not receive the email and did not know about the Agreement.

    [4]Page 279 of the hearing papers.

24. They were submissions that could have been made during the course of the hearing. If they had been made during the course of the hearing, Mr Tallents would have had an opportunity to respond. Usually, documentation provided after a hearing will not be taken into account: section 30 of the Child Support Review Directions. I decided to not take Ms Engleman’s post‑hearing submissions into account.

25. At 9:38 am on 29 May 2023, Ms Engleman sent an email stating: “In relation to the above matter which was Heard on Tuesday, 23rd May 2023 I would like to advise that I have retrieved some important information which would be relevant to making a final decision. I will have this information to you before the close of business today.” As at 10:00 am on 30 May 2023, Ms Engleman had not provided any further information. I decided to not delay the finalisation of the matter any further.

DECISION

The decision under review is set aside and, in substitution, the document dated 24 August 2021 is not accepted as a limited child support agreement.