Waas and Haab (Child support)

[2020] AATA 4920

Waas and Haab (Child support) [2020] AATA 4920 (12 September 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/PC019570

APPLICANT:  Mr Waas

OTHER PARTIES:  Child Support Registrar

Ms Haab

TRIBUNAL:Member W Budiselik

DECISION DATE:  12 September 2020

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the application for administrative assessment of child support made by Ms Haab on 12 November 2019 does not satisfy the requirements set out in section 25 of the Child Support (Assessment) Act 1989 (the Act)  because she is not a person who may apply for an administrative assessment of child support on 12 November 2019. Her application for an administrative assessment of child support is refused further to section 30 of the Act.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – whether the application for an administrative assessment was correctly accepted – the applicant was living with the other parent – the application should be refused  – 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. Mr Waas (the applicant/father) and Ms Haab (the mother) are the parents of [Child 1] (born December 2018) (the child).

2. On 7 July 2020 an objections officer from Services Australia (the agency) (formerly the Department of Human Services) disallowed an objection by the father to a decision made by an officer from the agency on 9 December 2019 to accept an application made by the mother for an administrative assessment of child support in relation to the child on 12 November 2019.

3. The father was granted an extension of time within which to lodge his objection to the agency’s decision on 30 May 2020.

4. On 30 July 2020, the father lodged an application for a review of the agency’s decision with the Administrative Appeals Tribunal (the tribunal). On 22 September 2020, the tribunal conducted a hearing into the application. The parents participated in the hearing via telephone conference. Prior to the hearing the agency provided the tribunal and the parents with a bundle of papers taken from its files (folios 1–80).

5. The parents disagreed with each other on most matters at the hearing.

6. The tribunal issued post-hearing directions seeking additional information from the parents. The tribunal also invited responses from the mother to specific matters raised by the father at hearing and in papers provided by him (folios A1–A4).

7. The father responded to the directions. He provided additional information requested which demonstrated he had transferred money to the mother’s account in respect of rent at times in the period 8 November 2019 to February 2020 (folios A5 to A17).

8. The tribunal set a compliance date for the mother’s response as Friday 9 October 2020 (i.e. 12 working days following the hearing).

9. The mother sought an extension to the compliance date to enable her to obtain legal advice. The mother was advised by an officer of the tribunal she need to support her extension request by providing evidence she had attempted to obtain legal advice in relation to the matter before the tribunal.

10. In the absence of further evidence that she had attempted to obtain legal advice, the tribunal declined a further extension to the compliance date. In doing so it took account of the following:

a)Section 2A of the Administrative Appeals Tribunal Act 1975 provides the tribunal’s objective is among other things to provide a mechanism or review that is accessible; fair, just, informal and quick; and, that is proportionate to the complexity of the matter.

b)The tribunal’s decision is that the applicant’s application for registration should not have been accepted by the agency on 12 November 2019. If the tribunal’s decision is delayed and the mother does not lodge another application for the administrative assessment of child support, she may be disadvantaged by the delay because the application will take effect from the date of lodgement.

c)The mother can seek a review of the tribunal’s decision.

1. The additional documents provided by the father (folios A1–17) have been provided to the mother and to the agency.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act). The tribunal also had regard to the agency’s online Child Support Guide (the Guide).

2. The issue which arises in this case is whether the mother’s application for administrative assessment of child support made on 12 November 2019 is to be accepted.

CONSIDERATION

1. A parent can apply for a child support assessment for a child if they are not living with the other parent of the child as their partner on a genuine domestic basis (paragraph 25(b) of the Act). The term ‘genuine domestic basis’ is not defined in the Act. The Guide at chapter 2.1.1 sets out guidance for the agency’s officers in determining whether parents are living together on a genuine domestic basis. It provides:

   Living together

   A parent or non-parent carer may not apply for a child support assessment if they are living as the partner of the other parent, or a parent, of the child on a genuine domestic basis.

   The factors to be considered (SS Guide 2.2.5.10) in establishing whether people are living together as partners on a genuine domestic basis are:

   ·       financial aspects of the relationship,

   ·       nature of the household,

   ·       social aspects of the relationship,

   ·       presence or absence of a sexual relationship, and

   ·       nature of the commitment.

   …

   Lastly, if parents, or a parent and non-parent carer, are legally separated but are still residing in the home they shared, they are not considered to be living together as partners on a genuine domestic basis. More than a physical separation within the home is required. It involves one or both parties forming the intention to end the relationship and acting upon that intention (including communication of the intention to the other party).

2. On 22 August 2019 an agency record sets out that the applicant lodged an application for the administrative assessment of child support. On 4 September 2019, a letter was issued to the mother setting out she needed to contact the agency to discuss information needed to complete the application. 

3. On 26 September 2019, the agency wrote to the parents advising them that an application for child support was not accepted. The mother was advised she could reapply for child support if she could provide necessary evidence.

4. The agency’s rejection decision dated 26 September 2019 is not the decision under review by the tribunal.

5. On 12 November 2019, the mother lodged an application for an administrative assessment of child support. A file note dated 18 November 2019, records the father had been called four times and appeared unwilling to cooperate.

6. The father explained he was contacted by the agency about the application for registration when he was driving. He said he asked the mother to contact the agency and to explain they were ‘together’ and the application was no longer relevant. He said he understood the matter had been sorted out.

7. On 9 December 2019, the agency wrote to the parents advising registration had been accepted from 12 November 2019.

8. The mother explained she separated from the father in August 2019 and at that time she notified Centrelink and been granted payments as a separated parent. The agency’s objections officer recorded:

   Ms Haab stated that when she submitted her claim for single parent pension 10 August 2019, she submitted a Verification of Relationship Status form to Centrelink which was signed by Mr Waas's sister [Ms A] to confirm they were not a member of couple, and that [Ms A] had removed Mr Waas's belongings from the residence on the 5th of August 2019.

   A search of our Centrelink data transfer records confirmed that on 13 August 2019 Centrelink accepted Ms Haab's relationship status as “Separated” from 26 July 2019.

   On this basis we are satisfied that the relationship status of the parents was already confirmed by Services Australia as 'separated', and Ms Haab was eligible to apply to the Registrar for an administrative assessment of child support for [Child 1].

9. The objections officer also recorded:

   Note: If parents with a child support case reconcile, they should notify the Registrar that they are now members of the same couple. If the Registrar is satisfied that 2 separated parents have reconciled, payment of child support will be suspended. Where parents remain reconciled for a period of 6 months or more, the administrative assessment will end. If, however, the parents separate again within 6 months, then either parent can reinstate the assessment without having to make a new application for an administrative assessment of child support.

10. The decision to be made by the agency (and the tribunal) about whether to accept the mother’s application for the administrative assessment of child support is determined by whether the parents were in a genuine domestic relationship on 12 November 2019.

11. The parents relocated from Perth to [Town 1] and entered into a joint tenancy agreement on 21 October 2019 (signed by the parents on 11 October 2019).

12. The mother said she did not reconcile with the father. She said she went to [Town 1] with him because she wanted their son to have contact with his father and because she wanted to live in [Town 1].

13. The father said he and the mother had moved to [Town 1] from Perth as a couple.

14. The father said he had a letter from [a] Counselling Services that stated he and the mother had attended counselling in respect of relationship issues.

15. The mother said she supported the father to attend counselling in relation to his anger/domestic violence issues, but that she did not attend as his partner. The mother said the police were called out to their [Town 1] house on several occasions because of the father’s domestic violence and she received support and money from Child Protection. A restraining order was taken out by the mother in respect of the father on 21 February 2020. 

16. A letter dated 13 August 2020 from the [Counselling] Service states: ‘Mr Waas attended counselling with his partner Ms Haab .’ The letter was signed by Mr [B].

17. The tribunal contacted Mr [B] about the letter. Mr [B] said he could not discuss the content of counselling. The tribunal said it did not wish to discuss the content of the counselling. It explained it was only trying to understand the way he used the word ‘partner’ in the letter he provided to Mr Waas. Mr [B] said he used the word partner in the sense of the relationship they had as a couple and that based on the issues discussed he was certain that at the time when he dealt with the parents they were in a marriage-like relationship.

18. The tribunal also noted the parents’ rental application received by the real estate agent on 4 October 2019 which included the following paragraph, presumably written by the mother:

    We would have extended our current lease if Mr Waas was not offered the job in [Town 1]. We have been trying to gain employment in [Town 1] for a while…We have been in our current property for 18 months and before that we had been travelling for roughly 6 months

19. The tribunal also noted a letter she signed by the mother on 28 October 2019 which sought to have her name removed from the lease because if that occurred, the father’s salary sacrifice component would increase which would ‘save us a lot of money every week’.

20. It was the matters set out in paragraphs 27 to 32 above that the tribunal sought the mother’s response by 9 October 2020.

21. In the absence of additional information and taking account of the evidence before it, the tribunal concluded the parents were in a genuine domestic relationship on 12 November 2019.

22. Consequently, the tribunal concluded the application for administrative assessment of child support cannot be accepted on 12 November 2019. The tribunal appreciates the parents are now separated. It is open to the mother to lodge a further application for child support.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the application for administrative assessment of child support made by Ms Haab on 12 November 2019 does not satisfy the requirements set out in section 25 of the Act because she is not a person who may apply for an administrative assessment of child support on 12 November 2019. Her application for an administrative assessment of child support is refused further to section 30 of the Act.