Adams and Macangus (Child support)

[2019] AATA 2187

Adams and Macangus (Child support) [2019] AATA 2187 (21 May 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC016157

APPLICANT:  Mr Adams

OTHER PARTIES:  Child Support Registrar

Ms Macangus

TRIBUNAL:Member F Hewson (Presiding)

Member P Noonan

DECISION DATE:  21 May 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – opt-in arrears – whether there were unpaid amounts – application for collection of unpaid amounts should be accepted – decision under review affirmed

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

BACKGROUND

1. Mr Adams and Ms Macangus are the parents of a daughter, aged 4. A child support case in respect of the child was registered on 12 February 2016 and the child support was recorded as being collected privately.

2. On 29 August 2018 Ms Macangus contacted the Department of Human Services—Child Support (the Department) and requested that the Department collect child support on her behalf from Mr Adams, who was assessed to be the parent liable to pay child support.  She also requested that arrears be collected for the period from 29 May 2018 to 28 August 2018.

3. On 28 September 2018, the Department accepted Ms Macangus’s application for collection of the child support from 29 August 2018, and for the collection of child support arrears for the period from 29 May 2018 to 28 August 2018 (an amount of $106.18).

4. Mr Adams lodged an objection to the decision and on 19 December 2018 an objections officer disallowed the objection.

5. On 21 March 2019 Mr Adams applied to the Social Security and Child Support Division of the Administrative Appeals Tribunal (the AAT) for an independent review of the objections officer’s decision.

6. On 21 May 2019 the tribunal conducted a hearing at which Mr Adams gave evidence by conference telephone.  Ms Macangus also gave evidence by conference telephone. The Child Support Registrar did not attend the hearing.

7. As well as the evidence of Mr Adams and Ms Macangus, the tribunal also had regard to documents provided by the Department, a copy of which was provided to the parties.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (the Act).

2. The issues in this case are whether the Department should have accepted Ms Macangus’s application for collection of child support, and whether she is owed arrears of child support for the period 29 May 2018 to 28 August 2018.

CONSIDERATION

Application for collection of child support

1. As noted above, the child support case between Mr Adams and Ms Macangus commenced from February 2016. It was not, however, registered for collection by the Registrar at that time (i.e. any liability was to be collected privately).

2. A payee may apply under subsection 25(1) of the Act for registration of a registrable maintenance liability that was not registered for collection. An application under subsection 25(1) is sometimes referred to by the Department as an application to "opt-in" for collection of child support payments by the Registrar. Where the application to opt-in is the first such application made by the payee, the Registrar must accept the application.

3. In this case, Ms Macangus applied under section 25(1) of the Act for the registrable maintenance liability to be registered for collection by the Registrar. The tribunal was satisfied that as this was her first application to opt-in for collection of child support, the application must be accepted.

Application for collection of arrears of child support

1. A payee may also apply under subsection 28A(3) of the Act for any unpaid amounts payable under the liability in relation to a specified period prior to the registration of the liability for collection (commonly a three month period but not more than nine months) to be treated as arrears amounts. Where the Registrar grants an application under subsection 28A(3), the unpaid amounts become child support debts payable to the Registrar, despite having accrued during a period when the liability was not registered for collection.

2. The Registrar must determine what amounts, if any, are unpaid amounts payable under the liability, taking into account what amounts are payable under the liability in relation to the specified period and whether any payments have been made in respect of the liability.

3. Ms Macangus asked the Department to collect unpaid amounts of child support for the period from 29 May 2018 to 28 August 2018 (the arrears period). Subsection 28A(4) of the Act states that if the period applied for does not exceed three months, the Registrar must grant the payee’s application. The tribunal was satisfied that the child support owed by Mr Adams during the arrears period was $106.18. The tribunal must determine if there were unpaid amounts of child support during the arrears period.

4. At the hearing Mr Adams said he did not owe any arrears of child support for the arrears period from 29 May 2018 to 28 August 2018 because throughout that period he had paid amounts in excess of his liability to Ms Macangus directly. He referred to evidence that he had been making payments of $140 a fortnight to Ms Macangus’s account. In relation to a Financial Statement, completed for proceedings in the Federal Circuit Court of Australia, which indicates that he pays rent/mortgage payments of $70 per week (for a property owned by Ms Macangus), Mr Adams said it was completed by his solicitor and was not correct. He said a new Financial Statement has subsequently been completed by him and provided to the Court, showing that he pays child support of $70 a week. He said he has never paid rent or mortgage payments to Ms Macangus. In relation to Consent Orders dated [date] November 2018 made in the Family Court of Australia, which included a provision that he pay all mortgage repayments secured over the stated property of about $70 a week, Mr Adams said he was coerced into consenting to the orders. Mr Adams said the Department’s records include a contact with Ms Macangus where she states that Mr Adams does not pay her rent. He said if he had not been paying child support Ms Macangus would have sought arrears sooner.

5. Mr Adams said he no longer lives at the property owned by Ms Macangus, although he still goes there as there are animals owned by the child that he takes care of. He said he is paying rent elsewhere. Ms Macangus said she was not aware that Mr Macangus is not living at the property.

6. Ms Macangus said the $140 a fortnight paid by Mr Adams was payment to cover the mortgage so he could remain in the property after they separated. She said Mr Adams was having some care of the child at that time and his child support liability was $0.00. There was no point in pursuing child support arrears.

7. The documents provided by the Department include the following:

   ·     A copy of the Financial Statement submitted by Mr Adams for proceedings in the Federal Circuit Court, which indicates that he was paying rent/mortgage of $70 per week and had no expenses for child support. The statement was signed by Mr Adams on 27 April 2018.

   ·     A copy of the Consent Orders made in the Family Court of Australia, which states that Mr Adams is to pay all mortgage repayments secured over the property at [address deleted], of about $70.00 per week.

   ·     Records of transfer of payments from Mr Adams’s account to Ms Macangus’s account.

   ·     Records of the Department’s contacts with Ms Macangus about payments made by Mr Adams to her account, including on 21 October 2018 where it was recorded that “PP [Mr Adams] is not paying any rent and the payment he makes is in her opinion the rent he should be paying while residing in her home”.

   ·     The Department’s records of Mr Adams’s child support liability.

8. The tribunal considered the available evidence. As set out above, it is Mr Adams’s contention that in the arrears period he was paying child support directly to Ms Macangus at a rate exceeding his liability and, in the circumstances, the application to opt-in for collection should have been refused, and that he does not owe any arrears of child support. As noted above, as this was Ms Macangus’s first application to opt-in for collection, the Registrar was required, in accordance with subsection 25(1), to accept the application.

9. The Department’s records show that in the period from 25 August 2016 Mr Adams’s child support liability was $0.00, because he had regular care of the child. While Mr Adams is of the view that payments of $140 a fortnight paid directly to Ms Macangus were for child support, the tribunal was not persuaded that this was the case. There is no documentary evidence of an agreement between the parties to that effect and the Financial Statement and Consent Orders referred to above indicate that the payments related to Mr Adams accommodation. While Mr Adams referred to the contact with Ms Macangus, which recorded that he did not pay her rent, the tribunal notes that at all times Ms Macangus has asserted that the payments from Mr Adams were for accommodation at the property in her name, against which there is a mortgage. The tribunal accepted that Mr Adams has submitted a new Financial Statement for the Federal Circuit Court proceedings, which are ongoing, but it was not persuaded that this is evidence that the payments of $140 were, in fact, for child support. This being the case, the tribunal concluded that there are unpaid amounts of child support during the arrears period from 29 May 2018 to 28 August 2018, in the amount of $106.18. As this is in accordance with the decision of the objections officer, the tribunal decided to affirm the decision under review.

10. At the hearing Mr Adams said he has paid child support to the Department which it has not passed on to Ms Macangus. He asked the tribunal to make a decision that the amounts must be released to Ms Macangus. The tribunal explained that this is not a matter in relation to which the tribunal has jurisdiction to make a decision.

DECISION

The decision under review is affirmed.