Venables and Venables (Child support)

[2021] AATA 2284

Venables and Venables (Child support) [2021] AATA 2284 (3 June 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/AC021157

APPLICANT:  Mr Venables

OTHER PARTIES:  Child Support Registrar

Ms Venables

TRIBUNAL:Member Y Webb

DECISION DATE:  03 June 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – child support agreement – whether application to accept binding child support agreement had been made – date of applicaiton – 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. This review is about whether to accept a binding child support agreement and the date from which it should be applied to the child support assessment.

2. Mr Venables and Ms Venables are the parents of two children but the elder child is no longer an eligible child of the assessment.  This matter therefore relates to their younger child who is 13 years old.

3. The child support case commenced on 21 March 2016 and has been collectable by Services Australia (“Child Support Agency”) since 30 January 2018.

4. On 24 December 2019 Mr Venables sent an unsigned copy of a proposed binding child support agreement to the Child Support Agency.

5. On 3 January 2020 Mr Venables sent to the Child Support Agency a signed copy of a binding child support agreement dated 26 November 2019.

6. On 17 February 2020 Mr Venables contacted the Child Support Agency in relation to the binding child support agreement.

7. On 20 February 2020 the Child Support Agency decided to accept the binding child support agreement with an effective date of 17 February 2020.

8. On 3 June 2020 Mr Venables objected to this decision (having been granted an extension of time) on the basis that the binding child support agreement should have been accepted on the date it was signed (26 November 2019) or alternatively on 3 January 2020 when he provided a signed copy to the Child Support Agency.

9. On 18 March 2021 an objections officer of the Child Support Agency disallowed Mr Venables’s objection.

10. On 1 April 2021 Mr Venables requested review by the Administrative Appeals Tribunal (the Tribunal).

11. Mr Venables and Ms Venables attended the hearing on 3 June 2021 by way of a telephone conference and both gave evidence on affirmation.

CONSIDERATION

1. The law relating to child support and binding child support agreements is detailed in the Child Support (Assessment) Act 1989 (the Act).

2. Under Part 6 of the Act, section 92 explains when the Registrar must accept an application for acceptance of a binding child support agreement.  If the Registrar is satisfied that an application has been properly made, the Registrar must accept the agreement.  Section 88 sets out the application requirements of which there are two:

   ·the agreement must be a child support agreement; and

   ·it must comply with section 89.

3. Section 89 of the Act relates to formal requirement for applications.  It provides that an application for acceptance of an agreement by the Registrar must be made in a manner specified by the Registrar.  It also notes that the Registrar may specify the manner in which an application may be made as provided for in section 150A of the Act.

4. Section 150A of the Act provides that the Registrar may specify the manner in which an application required to be made under the Act is to be made or given.

5. In this case the issue in dispute is that Mr Venables contends that he provided the signed binding child support agreement to the Child Support Agency on 3 January 2020 and that it should have been accepted by the Child Support Agency effective from 26 November 2019 that being the date that the binding child support agreement was signed by all parties or at least from 3 January 2020, the date when he provided the signed agreement to the Child Support Agency.

6. Mr Venables stated that he was unaware that he needed to make an application for the binding child support agreement to be accepted.  He assumed that once he provided the agreement to the Child Support Agency it would be accepted and registered. He did not know that he had to apply for the agreement’s acceptance.  In addition, Mr Venables stated that he was unaware of the urgency to take action within 28 days of the day on which the agreement was signed.

7. Ms Venables responded that from the start of the binding child support agreement process she was in close contact with her lawyer and her lawyer advised her that Mr Venables’ lawyer would be sending in the agreement but that it would not take effect until the Child Support Agency implemented it.

8. The Tribunal carefully considered all of the information in the Child Support Agency papers and the evidence provided by both parents at the hearing.  It is not in dispute that the parents agreed on the terms of a binding child support agreement and that they both signed the agreement.  There is no dispute that the agreement was properly made as the legislation requires.  The issue in dispute is the date from which the binding child support agreement applies.

9. The Tribunal is satisfied that Mr Venables first made contact with the Child Support Agency about a binding child support agreement on 24 December 2019.  On that occasion he sent through an unsigned agreement.  There was a telephone discussion between an officer of the Child Support Agency and Mr Venables and the officer noted that he told Mr Venables that “once we receive the application it would be forwarded to the agreements team for vetting”.  The Tribunal accepts that Mr Venables did not realise from that conversation that he needed to apply for the agreement to be accepted.

10. Mr Venables told the Tribunal that he assumed when he sent through the signed binding agreement on 3 January 2020 that the Child Support Agency would know that he was seeking to have the agreement accepted.  He agreed that he had no further communication with the Child Support Agency until he telephoned the Child Support Agency on 17 February 2020 to ask about the implementation of the agreement.

11. The Tribunal agrees with the Child Support Agency that an application is required in relation to the acceptance of a binding child support agreement.  Section 89 of the Act provides that the application for acceptance by the Registrar of an agreement must be made in the manner specified by the Registrar.  Mr Venables agreed that he did not make a written application for acceptance of the agreement.  The Tribunal finds that his application was verbal arising out of the telephone discussion about the agreement between Mr Venables and the Child Support Agency on 17 February 2020.  There is no evidence of any earlier discussion between Mr Venables and the Child Support Agency about the agreement on or after he sent the signed agreement to the Child Support Agency on 3 January 2020 and Mr Venables did not suggest that there was. 

12. The Tribunal is satisfied that after 17 February 2020 the Child Support Agency considered the content of the agreement before accepting the agreement as properly made on 20 February 2020 and applying it from the date of verbal application: that being 17 February 2020.  The Tribunal finds that date is consistent with section 34B of the Act which provides that in circumstances where the application for acceptance of the agreement is not made within 28 days after the day on which the agreement was signed, and none of the other provisions in that section apply, then the date from which the binding child support agreement applies is the day on which the application was made to the Registrar for acceptance of the agreement (paragraph 34B(2)(d) of the Act).  The Tribunal has found that the date on which the application was made to the Registrar was 17 February 2020.

13. Hence the Tribunal concludes that the decision to accept a binding child support agreement and apply it to the child support assessment from 17 February 2020 was correct.

DECISION

The decision under review is affirmed.