Albinson and Ellery (Child support)

[2021] AATA 1002

Albinson and Ellery (Child support) [2021] AATA 1002 (15 March 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC020606

APPLICANT:  Mr Albinson

OTHER PARTIES:  Child Support Registrar

Ms Ellery

TRIBUNAL:Member J Thomson

DECISION DATE:  15 March 2021

DECISION:

The Tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – non-agency payment - whether utility payment should be credited – no mutual intention – whether condition for crediting as prescribed payment satisfied – discretion to refuse to credit non-agency payment - 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. Mr Albinson seeks review of an objection decision made by the Child Support Agency (the CSA) on 15 December 2020. This decision disallowed his objection to an earlier decision by the CSA dated 8 September 2020 refusing his application for credit of an amount of $221.93 for payment of [a Utility 1] gas utility account for the period 22 May 2020 to 20 August 2020.

2. The Tribunal heard the matter on 15 March 2021. Mr Albinson and Ms Ellery attended the hearing via conference telephone and gave affirmed evidence. The Tribunal had before it documents provided by the CSA (Exhibit 1), and documents provided by Ms Ellery (Exhibit B). Mr Albinson had copies of these documents with him at the hearing. Ms Ellery had copies of the documents contained in Exhibit 1, but did not have copies of the documents she had provided, Exhibit B, however she was content for the hearing to proceed, confirming she was aware of the contents of those documents.

3. Ms Ellery requested the assistance of an  [interpreter] at the hearing, [Ms A], who was affirmed, but whose services were not called upon by Ms Ellery during the course of the hearing.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (the Registration Act) and the Child Support (Registration and Collection) Regulations 2018 (the Regulations).

2. The issues which arise in this case are as stated in the Reasons which follow.

CONSIDERATION

1. In reaching its decision, The Tribunal has considered the affirmed evidence given by the parties at the hearing, and the documents contained in Exhibits 1 and B.

2. Mr Albinson gave evidence that up until 10 June 2020, he and Ms Ellery and their two children were residing in rented premises at [Address].

3. Following Ms Ellery’s successful application for a domestic violence order on 10 June 2020, he had been obliged to leave the [Street] premises and take up residence with his current partner, [Ms B] at another address. During the course of this process, he said he had applied for changes to the gas and electricity accounts with [Utility 1], to change the holders of the account from the joint names of himself and his current partner, [Ms B], but for reasons which were not clear from his evidence, [Utility 1] had declined to do so.

4. Ms Ellery gave evidence on this point, the substance of which appears in her evidence below.

5. Mr Albinson said that he received two utilities accounts for the [Street] premises: the [Utility 1] gas account for the period 22 May 2020 to 20 August 2020 in the amount of $221.93 (the gas account), which was issued on 20 August 2020, and the [Utility 1] electricity account for the period 22 April 2020 to 3 August 2020 in the amount of $494.92, which was issued on 4 August 2020. Both accounts reflected him and his current partner, [Ms B], as the parties liable for the payment of the gas and electricity accounts.

6. He said he attended to payment of both of these accounts on or about 21 August 2020. Although the CSA initially took issue with the evidence Mr Albinson provided regarding the date of payment of these accounts, it was not disputed at the hearing that the accounts were paid, and there was evidence before the Tribunal that [Utility 1] had acknowledged receipt of payment of these accounts in the amounts referred to above on 21 August 2020.

7. On 21 August 2020, Mr Albinson notified the CSA via his online myGov account of his claims for prescribed non-agency payments (Pre-NAP claims) for the gas and electricity accounts. He also notified the CSA of other claims for payments relating to the cleaning of the [Street] premises, and child care costs incurred by the parents for their two children, which are not the subject of the objection decision under review.

8. It was conceded at the hearing by Mr Albinson that he had not sought Ms Ellery’s agreement for the gas and electricity account payments to be credited against his child support liability, following the CSA’s acceptance of her application for a child support administrative assessment on 10 August 2020.

9. The Tribunal notes that the CSA made two decisions on 8 September 2020 in relation to applications made by Mr Albinson on 21 August 2020 for crediting of his payments of the gas and electricity accounts against his child support liability, in both cases, refusing his applications on the basis the payments were for liabilities which had accrued before his child support liability had started on 10 August 2020.

10. The backgrounds to both decisions are reflected in the CSA’s file notes at pages 53 and 54 of Exhibit 1. In both cases, the file notes reflect an error in relation to the gas and electricity accounts, citing them as being in the joint names of both parties. As noted above, both accounts are in the joint names of Mr Albinson and his current partner, [Ms B], not Ms Ellery.

11. Mr Albinson was notified of both CSA decisions of 8 September 2020 by letters dated 8 September 2020, copies of which appear at pages 57 and 59 of Exhibit 1. Similarly dated letters were sent by the CSA to Ms Ellery on 8 September 2020.

12. At the hearing, Mr Albinson gave evidence that he contacted the CSA on 26 September 2020 to lodge his objection to both CSA decisions regarding the refusal of his Pre-NAP claims for the gas and electricity accounts, and requested that they be dealt with in the one objection process. The decision under review deals with only the gas account payment of $221.93. Mr Albinson submitted that the Tribunal had jurisdiction to review not only the objection decision of 23 December 2020 regarding the gas account payment, but also the CSA’s initial decision of 8 September 2020 regarding the electricity account for $494.92.

13. Mr Albinson gave evidence that he continued to pay the rental on the [Street] premises after he left that address on 10 June 2020 up until Ms Ellery and the children vacated the premises on 5 August 2020. However, he acknowledged that he and Ms Ellery were not on speaking terms after she obtained the domestic violence order referred to above, and he did not have contact with her thereafter, as a consequence of which he was not able to discuss with her the acceptance of the payments he made in August 2020 for the gas and electricity accounts as payments in lieu of child support.

14. He also gave evidence that he is currently paying child support to Ms Ellery pursuant to the administrative assessment accepted on 10 August 2020 at the monthly rate of $1,256, approximately $293 per week, collected by the CSA.

15. Ms Ellery’s evidence at the hearing was to the following effect. She acknowledged that she had understood and otherwise comprehended the evidence given by Mr Albinson as set out above, and did not require the assistance of the interpreter to respond.

16. She said she arrived in Australia from [Country] [in] March 2020 as Mr Albinson’s wife, with their [two children] (twins born 2017), and took up residence with Mr Albinson at the [Address] premises. Shortly after her arrival, she became aware that Mr Albinson had been in a relationship with [Ms B], and that he and [Ms B] had been living at the [Street] address since June 2019, prior to the arrival of Ms Ellery and the children. She asserted that the gas and electricity accounts had already been established with [Utility 1] in the names of Mr Albinson and [Ms B].

17. She gave evidence that when she became aware of Mr Albinson’s relationship with [Ms B], her relationship with Mr Albinson deteriorated, and she successfully applied for a domestic violence order against Mr Albinson on 10 June 2020, in consequence whereof, Mr Albinson left the [Street] address and went to live with [Ms B].

18. Ms Ellery said she has no relatives living in Australia, and as a new arrival, she had no friends upon whom she could rely for support, nor was it possible for her to return to her homeland. She said that, apart from one payment of $100 following his departure from the [Street] premises on 10 June 2020, Mr Albinson did not provide her with any financial support, and she was obliged to apply to Centrelink for financial assistance to support herself and the children.

19. She said she approached the CSA following Mr Albinson’s departure from the [Street] address regarding child support and was advised to seek less expensive accommodation prior to lodging an application for a child support administrative assessment. Pursuant to this advice, Ms Ellery said she arranged to rent alternative premises and engaged removalists to move her possessions to the new address. She provided a copy of the removalists’ account as part of her documentation, Exhibit B, reflecting the date of removal as 6 August 2020, and gave evidence that she and the children vacated the [Street] premises on 5 August 2020. She also provided copies of the electricity supply account she established with [Utility 2], reflecting the date of connection as 6 August 2020 as part of Exhibit B. A copy of her rental agreement for her new address, reflecting the date of commencement of her tenancy as 5 August 2020, which she provided to the CSA in support of her child support assessment application, was before the Tribunal as part of the CSA’s documentation, Exhibit 1.

20. On 10 August 2020, Ms Ellery’s application for a child support administrative assessment was accepted by the CSA.

21. Mr Albinson did not challenge Ms Ellery’s evidence. The Tribunal accepts Ms Ellery’s evidence as set out above.

22. As noted above, the legislation relevant to this matter is contained in the Registration Act and the Regulations, pursuant to that Act.

23. Subsection 71C(1) of the Registration Act provides that if:

    (a)the payer of an enforceable maintenance liability in relation to a payment. Or initial period has made one or more payments to another person; and

    (b)the payment is a payment of the kind specified in the regulations; and

    (ba)at the time the payment is made, the payer does not have at least regular ( i.e. at least14% care but less than 35% care) of any of the children to whom the relevant administrative assessment relates; and

    (c)the sum of those payment exceeds the sum of all such payments previously credited under this section against the amount payable under the liability for all past periods; and

    (d)the payer does not, at the time at which the Registrar applies this section, have at least regular care of any of the children to whom the relevant administrative assessment relates;

    then the Registrar must credit the excess amount mentioned in paragraph (c) against the amount payable under the payer’s liability for the period, up to a maximum of 30% of the amount payable.

24. Regulation 19 of Part 3 of the Regulations sets out the kinds of payments referred to as specified payments in paragraph 71C(1)(b) above which, in this case, include, relevantly, the payee’s share of the amounts payable for utilities, i.e. gas and electricity supply charges for the payee’s home (paragraph 19(f) of the Regulations).

25. For the payments of the gas and electricity accounts made by Mr Albinson to comply with the requirements of section 71C and regulation 19, Mr Albinson must demonstrate that the payments he made related to Ms Ellery’s share of the liability for the gas and electricity accounts rendered by [Utility 1] for the periods and in the amounts referred to above. The evidence on the face of the respective gas and electricity accounts reflects that the persons liable for the payment of those accounts are Mr Albinson and [Ms B].

26. Ms Ellery is not a party liable on either of those accounts, and consequently, the Tribunal finds that the payments of $221.93 and $494.92 made by Mr Albinson were not compliant with the requirements of paragraph 19(f) of the Regulations as payments made in respect of Ms Ellery’s share of the gas and electricity accounts.

27. Alternatively, if Ms Ellery were to be found liable for the gas and electricity accounts referred to above, pursuant to the provisions of paragraph 19(f) of the Regulations, Mr Albinson would only be able to claim credit for her half share of those accounts, apportioned, pro-rata, in accordance with the period she occupied the [Street] premises, from 12 March 2020 to 5 August 2020.

28. On that basis, Ms Ellery’s half share of the gas account of $221.93 for the 91 day period  covered by the account from 22 May 2020 to 20 August 2020, apportioned at a daily rate of $2.44 ($221.93 / 91 = $2.44) for the 66 day period, June 2020 to 3 August 2020, she and the children occupied the [Street] premises, would equate to approximately $80.52 ($2.44 x 66 / 2 = $80.52).

29. As regards the electricity account of $494.92 for the 104 day period  covered by the account from 22 April 2020 to 3 August 2020, apportioned at a daily rate of $4.75 ($494.92 / 104 = $4.75) for the 62 day period Ms Ellery and the children occupied the [Street] premises, June 2020 to 3 August 2020, Ms Ellery’s half share would equate to approximately $152.00 ($4.75 x 62 / 2 = $152.00).

30. Section 71D of the Registration Act provides that the Registrar may refuse to credit an amount under section 71C if satisfied that, in the circumstances of the particular case, the amount ought not to be credited.

31. Mr Albinson gave evidence that he has been assessed to pay child support at a weekly rate of approximately $293. Although the actual amount of his taxable income was not in evidence before the Tribunal at the hearing, he is obviously earning a reasonable income. Ms Ellery’s evidence suggests her financial circumstances are significantly reduced, compared with Mr Albinson’s. She also has the 100% caring responsibilities for the two young children, the subject of the CSA child support assessment, and a limited capacity to earn income, and is dependent upon Mr Albinson for child support.

32. Considering the evidence on balance and the circumstances of the parents in this particular case, the Tribunal, in the exercise of the discretion pursuant to section 71D of the Registration Act, is not satisfied the amounts equating to Ms Ellery’s share of the gas and electricity accounts calculated above should be credited against Mr Albinson’s child support liability.

33. As the Tribunal has reached the same conclusion as the objections officer in the decision under review, albeit for different reasons, the Tribunal affirms the decision under review with respect to payment of the gas account for $221.93, and also considers the same outcome should apply to the payment of the electricity account.

DECISION

The Tribunal affirms the decision under review.