Child Support – Mother Unsuccessfully Appeals Decision of the Administrative Appeals Tribunal

Background to the Case

In the recent case of Batson & Batson & Anor [2016] FCCA 2631 (delivered 12 October 2016 but published 30 May 2017) Judge Street heard the mother’s appeal in a case where she had applied for a child support assessment on 24 November 2006.

 

Father’s Submission

The father obtained an extension of time to object to the Child Support Register’s decision accepting the mother’s application but his objection otherwise failed. The father then successfully appealed to the Administrative Appeals Tribunal (AAT) which found that the mother’s application for an assessment should not have been accepted by the Registrar as the mother and father were living together on a genuine domestic basis at the time of the application.

 

Mother’s Submission

The mother then appealed the AAT’s decision to the Federal Circuit Court, arguing that the Registrar’s decision was corroborated by recitals to a financial agreement which recited that the parties separated in April 2005.

 

Analysis of AAT’s Decision

 The Court stated that the documents considered by the AAT included a transcript relating to a domestic violence dispute heard before a Local Court magistrate on 4 June 2013, as well as communications between the parties which included submissions by the solicitor on behalf of the applicant mother. Those submissions made clear that the mother appreciated that a critical issue in the case for the determination by the Tribunal was whether the applicant and the respondent were living together on a genuine domestic basis at the time of application.

The submissions made were largely based on recitals to a Binding Financial Agreement dated 20 October 2006, as giving rise to an issue estoppel / res judicata (ie that the parties were separated pursuant to the Agreement and thus the status of their relationship should not be a matter for consideration). The Tribunal rejected those submissions and determined on the evidence before it that the Binding Financial Agreement had little weight. The Tribunal preferred the evidence of the father to the evidence of the mother.

That adverse credibility finding was one in part based on a document relating to a Family Tax Benefit lodged at Centrelink on 14 September 2005, signed by both the applicant mother and the respondent father on 30 August 2005. Those signatures appear beneath a statement that relevantly included acknowledging the importance of false or misleading information being an offence in relation to the document. In the relevant document, there was a question at 30 which relevantly said ‘your marital status changed, you gained a partner or separated’ to which the answer ‘no’ was completed by the mother.

Also before the Tribunal, was the tendering of information obtained from Centrelink. The Tribunal provided those documents to the parties for comment. The significance of the documents was obvious in relation to the issue between the parties as to whether they were living together on a genuine domestic basis at the relevant time. Both parties were given a genuine opportunity to respond to the information that had been obtained from Cenrelink. It was not necessary for the Tribunal to conduct a further hearing having given the parties an opportunity to comment on that material.

The Tribunal correctly identified that it had to determine whether to accept the application for a child support assessment made on 24 November 2006. The Tribunal correctly identified that involved a determination of whether or not the applicant and the respondent were living together as partners on a genuine domestic basis at that time. The Tribunal identified the relevant legislative provision being Child Support Assessment Act 1989 section s 25(2) .

The Tribunal had evidence from the first respondent contending that the applicant and the respondent have lived together as a married couple until April 2013. The first respondent contended that the Binding Financial Agreement had been entered into in order to defeat creditors.

The Tribunal found the explanation of the respondent to be plausible and provided cogent reasons for not placing weight on the statement in the Binding Financial Agreement that the parties had separated on 28 April 2005.

The Tribunal made reference to the information provided to Centrelink on 14 September 2005 and found it was more likely than not to be correct, and that the applicant and the respondent were not separated on that date. The Tribunal found that cast significant doubt on the credibility of the applicant who has steadfastly maintained that she had separated in April 2005 and did not reconcile until December 2012.

 

The Court’s Conclusion

There was no procedural unfairness by the Tribunal in providing the documents received from Centrelink to the parties for comment. It was not necessary for the Tribunal to engage in directing or advancing the parties’ attention to particular documents. The significance of the documents was obvious.

According to the Court, it was apparent that the Tribunal did have regard to the Binding Financial Agreement and it was a matter for the Tribunal to determine what weight to give that agreement. The Tribunal was not bound by relevant provisions in the Family Law Act 1975(Cth) to accept the facts in the recital to the BFA as incontrovertible facts for the determination of the application that was before it.

It was apparent that the Tribunal understood the argument being advanced by the applicant’s solicitor as to the weight and force that the applicant’s solicitor contended should be given to the BFA. The Tribunal did not fail to have regard to any relevant consideration.

These were administrative proceedings. According to the Court, there was no principle of issue estoppel that bound the Tribunal in relation to the facts that gave rise to the question of whether the criteria for the application were satisfied.

The evidence adduced before the Tribunal was a matter in which it was proper for the Tribunal to evaluate what weight to give to that evidence. The assertion of it being improper to give no weight to the BFA was completely lacking in substance. The adverse findings by the Tribunal were open.

It was open to the Tribunal for the reasons given to determine what weight to give the document. This was not a case of the Tribunal being in a position where there was uncorroborated evidence from the first respondent. There was a contemporaneous record entirely consistent with the first respondent’s evidence in relation to the contradiction of the applicant’s evidence that the parties had separated in April 2005. There was no failure by the Tribunal to take into account a relevant consideration as alleged.

Orders

The appeal was dismissed with costs fixed in the sum of $5,600.

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