Tisdell and Tisdell (Child support)

[2020] AATA 5832

Tisdell and Tisdell (Child support) [2020] AATA 5832 (11 November 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/BC019912

APPLICANT:  Mr Tisdell

OTHER PARTIES:  Child Support Registrar

Ms Tisdell

TRIBUNAL:Member F Staden

DECISION DATE:  11 November 2020

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that the binding child support agreement between Mr Tisdell and Ms Tisdell is to be registered from 1 April 2020.

CATCHWORDS

CHILD SUPPORT – child support agreement – date of registration – 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 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. This review is about whether a 20 October 2009 financial agreement between Mr Tisdell and Ms Tisdell can be registered as a binding child support agreement by Services Australia – Child Support (Child Support) from a date before 17 April 2020.

2. Mr Tisdell and Ms Tisdell are the separated parents of [Child 1], born 2004. From their separation in 2009 to 4 January 2020, Mr Tisdell and Ms Tisdell shared [Child 1]’s care equally.

3. On 4 March 2020, Ms Tisdell made an online application to Child Support for a child support assessment for [Child 1].

4. On 1 April 2020, Child Support contacted Ms Tisdell in relation to her application and confirmed, among other things, that she wanted Child Support to collect her child support; that she had provided 100% of [Child 1]’s care from 5 January 2020; and that this care pattern for [Child 1] was not in line with the relevant court order. Ms Tisdell was requested to provide a copy of the court order by 8 April 2020.

5. On 1 April 2020, Child Support contacted Mr Tisdell and informed him of Ms Tisdell’s application and of her wish for Child Support to collect her child support. The Child Support record of this contact notes:

   Mr Tisdell advised that they have a court ordered agreement – could be a binding agreement where there is a certificate attached to this AGR that both parties have had Legal advice on [t]he matter. And that there was a clause that no child support is required to be exchanged.

   There is no record of Mr Tisdell being asked to provide a copy of this agreement.

6. On 1 April 2020, Ms Tisdell lodged a copy of 27 October 2009 consent orders in relation to [Child 1]’s care arrangements. A note to those orders stated:

   The FATHER and MOTHER agree that neither party will be liable to pay child support payments to the other conditional upon and subject to the FATHER attending to full payment of the Child’s private school tuition fees each year until the Child completes his secondary education. Should however the FATHER’S financial circumstances change, the FATHER will provide to the MOTHER with one (1) school term’s notice in writing, and the parents shall either share equally in the Child’s private school tuition fees or enrol the Child into a public school. The parents shall agree on the public school.

7. On 2 April 2020, Mr Tisdell lodged a copy of a signed 20 October 2009 financial agreement, under sections 90C and 90E of the Family Law Act 1975, between himself and Ms Tisdell. Also lodged was certification that the parties had received independent legal advice before signing the agreement. Recital K of the agreement stated:

   Mr Tisdell and Ms Tisdell have agreed that neither party will be liable to pay child support payments to the other, conditional upon and subject to Mr Tisdell attending to full payment of [Child 1]’s private school tuition fees each year until [Child 1] completes his secondary education. Should however Mr Tisdell’s financial circumstances change, Mr Tisdell will provide to Ms Tisdell one (1) school term’s notice in writing, and Mr Tisdell and Ms Tisdell shall either share equally in [Child 1]’s private school tuition fees or enrol [Child 1] into a public school.

8. A 6 April 2020 Child Support record states in relation to the financial agreement provided by Mr Tisdell:

   This is a financial agreement that does not indicate how the non periodic payments affect the child support assessment, therefore, the child support assessment will be in addition to the non periodic payments.

9. On 7 April 2020, Child Support decided to accept Ms Tisdell’s application for a child support assessment for [Child 1] and informed Mr Tisdell and Ms Tisdell of this by letter of that date.

10. An 11 April 2020 Child Support record indicates that on that day an unsuccessful attempt was made to contact Mr Tisdell by telephone to “Obtain verbal Application for Acceptance of Agreement”. Mr Tisdell is recorded as returning that call on 16 April 2020 and advising that he was making a verbal application for the Registrar to accept the child support agreement.

11. On 17 April 2020, Mr Tisdell lodged an income estimate with Child Support which was accepted on that day. The record of that contact includes the following in relation to the financial agreement:

    … as Financial Agreement doesn’t state how the non-periodic payments impact the assessment (ie reduce assessment by 100% or to be credited at 100% against assessment) then default is “in addition”.

    Based on this Payer doesn’t want to proceed with formally registering but does want his Solicitor to call CS to discuss further. This is because his Solicitor has similar examples where similarly worded Financial Agreements were accepted.

12. On 27 April 2020, in a contact with Child Support, Mr Tisdell is recorded as being told that the financial agreement was being escalated to the policy area for review of the meaning of Recital K and, depending on the outcome, Mr Tisdell could request that the agreement be registered.

13. On 16 May 2020, the policy area found that “Based on this agreement can be registered as NIL periodics and school fees for non-periodics”.

14. On 19 May 2020, Child Support decided to accept the agreement between Mr Tisdell and Ms Tisdell with effect from 17 April 2020 and the parties were informed of this decision by letters of that date.

15. Mr Tisdell lodged an objection to the 19 May 2020 decision on 2 June 2020. On 10 September 2020, an objections officer disallowed that objection.

16. On 22 September 2020, Mr Tisdell applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) for review of the objections officer’s decision.

17. A hearing was held on 11 November 2020 in Canberra. Mr Tisdell and Ms Tisdell gave sworn evidence by telephone. The tribunal also had before it papers provided by Child Support (204 pages).

18. Relevant aspects of the evidence before the tribunal will be referred to in the consideration below.

ISSUES

1. The statutory provisions relevant to this review are in the Child Support (Assessment) Act 1989 (the Act),

2. The key issue in this case is when did Mr Tisdell first apply for acceptance of a binding child support assessment.

CONSIDERATION

21.  Section 92 of the Act states that the Child Support Registrar (the Registrar) must accept an application for acceptance of a child support agreement if satisfied that the application has been properly made. Section 88 of the Act sets out the general requirements for acceptance of a child support agreement: 

• the agreement must be a child support agreement; and

• the application must comply with section 89 of the Act.

22.  The tribunal was satisfied, as was Child Support, that the 20 October 2009 financial agreement between Mr Tisdell and Ms Tisdell, relevantly outlined above, meets the requirements for making a binding child support agreement as set out in in section 80C of the Act.

23.  Under section 89 of the Act, an application for acceptance of an agreement must be made in the manner specified by the Registrar. Section 150A of the Act provides for the Registrar to specify the manner in which an application is made. Child Support’s policy guidelines, in 6.2.1 of the Child Support Guide, state that an application to register a child support agreement can be made verbally or in writing.

24.  Child Support’s first contacts with the parties about Ms Tisdell’s 4 March 2020 application for a child support assessment were on 1 April 2020. The record of that contact with Mr Tisdell notes that he informed Child Support of the existence of a binding child support agreement between himself and Ms Tisdell. Given the context of a child support assessment application, the tribunal was of the view that Mr Tisdell was providing that information because of its likely impact on any such assessment.

25.  The tribunal therefore found that the 1 April 2020 contact between Mr Tisdell and Child Support was effectively a request for registration of that agreement. The binding child support agreement should therefore be registered from that date. As child support was payable prior to this date and the agreement was registered more than 28 days after it was made, under section 34B of the Act, this will be the date of effect of the agreement.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that the binding child support agreement between Mr Tisdell and Ms Tisdell is to be registered from 1 April 2020.