Anderton and Halsey (Child support)

[2019] AATA 6407

Anderton and Halsey (Child support) [2019] AATA 6407 (18 December 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/PC017482

APPLICANT:  Mr Anderton

OTHER PARTIES:  Child Support Registrar

Miss Halsey

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  18 December 2019

DECISION:

The decision under review is varied so that the amount of child support payable by Mr Anderton in the arrears period is $2,109.10.

CATCHWORDS

CHILD SUPPORT – opt-in arrears – whether there were unpaid amounts – amount unpaid for the relevant period – 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 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 Anderton and Miss Halsey are the parents of [Child 1] (born January 2015) and [Child 2] (born December 2016).

2. There has been a child support assessment in place since 3 November 2017 and Mr Anderton is the liable parent.  Prior to 15 March 2019 the parents had a private arrangement in place regarding child support payments.

3. On 15 March 2019 Miss Halsey applied to the Department of Human Services, Child Support (the Child Support Agency) to start collecting child support as well as outstanding payments for the period 15 December 2018 to 14 March 2019.

4. On 20 March 2019 the Child Support Agency accepted this application for collection.  A decision was also made that Mr Anderton owed $182.20 in outstanding child support.

5. On 15 April 2019 Miss Halsey objected to the decision made on 20 March 2019 and on 11 September 2019 the Child Support Agency allowed the objection in part and made the decision to accept the application for collection of child support with arrears for the period 21 December 2018 to 14 March 2019 of $2,008.89 (the objection decision).

6. On 22 September 2019 Mr Anderton applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

7. The matter was considered on 3 December 2019.  Both Mr Anderton and Miss Halsey gave evidence on affirmation by conference telephone.  The Child Support Agency provided the Tribunal and the parties with a bundle of documents relevant to the review (174 pages).

ISSUES

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

2. The issue which must be decided in this case is the amount of child support arrears, if any, Mr Anderton is liable to pay.

CONSIDERATION

1. A payee can initially elect not to have a liability which arises from a child support assessment enforceable by the Child Support Agency under subsection 24A(2) of the Act.  In other words, the child support is collected privately.

2. Section 25 of the Act states that if a payee who made an election under subsection 24A(2) applies at a later time to have the liability enforced by the Child Support Agency then the application must be accepted.

3. The Tribunal finds that Miss Halsey applied for the liability to become enforceable on 15 March 2019.

4. If an application is made under section 25 of the Act, the payee may also apply for any unpaid amounts to be treated as arrears amounts and collected by the Child Support Agency (subsection 28A(3)).  If the specified period does not exceed three months, the Child Support Agency must grant the payee’s application (subsection 28A(4)) provided the child support liability remains unpaid.

5. The Tribunal finds that Miss Halsey applied for arrears in the three-month period to be collected.  Her application for unpaid amounts must, therefore, be granted.  The Child Support Agency determined, on objection, that an amount of $2,008.89 was the amount of the arrears liability for the period 21 December 2018 to 14 March 2019.  It is this amount that Mr Anderton disputes.

6. Mr Anderton told the Tribunal the decision by the Child Support Agency was incorrect.  He said prior to the application for collection by Miss Halsey he was paying child support of $2,400 per month as that was the rate advised by the Child Support Agency.  Mr Anderton said he would deposit the funds every month and was never behind in his payments.

7. Mr Anderton said after the Child Support Agency commenced collecting child support he made his first payment of $1,365.96.  He said the Child Support Agency told him that was all he was required to pay at that time and he believed Miss Halsey was trying to recover additional child support because she had applied for agency collection halfway through the month.

8. Mr Anderton said in addition to child support he paid fees of approximately $600 per month for the children to attend an early learning centre and paid the mortgage on the former family home which amounted to approximately $1,800 per month.  Mr Anderton said, in other words, he was paying Miss Halsey approximately $4,800 a month.

9. Mr Anderton told the Tribunal that he made his child support payments regularly around the 20th of each month, which was when he was paid.  He said his bank statements showed these payments as well as the fees for the early learning centre and the mortgage payments he was making.  Mr Anderton said he stopped paying the mortgage on 5 November 2018 and his last payment to the early learning centre was for $220 on 14 March 2019.  He explained the payments made to the early learning centre were fortnightly direct debits and varied from fortnight to fortnight.  Mr Anderton said he never checked the exact amount but said Miss Halsey had told him it was approximately $600 per month and he accepted the amount was close to that.

10. Mr Anderton was uncertain about whether or not he paid child support monthly in advance or in arrears but said his first payment after the parents separated was on 20 December 2017.

11. In his application for review Mr Anderton provided the Tribunal with extracts from bank statements showing transaction details for various dates between 29 March 2018 and 6 August 2019.  The Tribunal will only consider payments made during the opt-in arrears period from 15 December 2018 to 14 March 2019.  Payments made under the private collect arrangement between the parents outside the opt-in arrears period are generally not relevant unless the Tribunal is satisfied they were made in respect of the liability during that period.  The extracts show the following payments for early learning centre fees:

    ·20 December 2018 - $329.84

    ·3 January 2019 - $355.68

    ·17 January 2019 - $309.89

12. Miss Halsey told the Tribunal she applied for agency collection after Mr Anderton threatened to stop paying child support.  She said Mr Anderton paid child support monthly in arrears and agreed that during the arrears period he made three payments of $2,400 on 20 December 2018, 20 January 2019 and 20 February 2019.  Miss Halsey said Mr Anderton did not make a payment on 20 March 2019 and so she did not receive child support during the transition period before the Child Support Agency commenced collection.

13. Miss Halsey explained to the Tribunal that Mr Anderton continued to pay the monthly mortgage after the parents separated as his name was still on the mortgage documents.  She said they agreed he would pay the mortgage and she would pay the legal fees and bank charges to have the mortgage discharged and the property transferred into her name.  Miss Halsey said the mortgage payments were in addition to child support.  She said she started making mortgage payments in December 2018 after the property was transferred to her.

1. Mr Anderton agreed and said he had told Miss Halsey he would pay the mortgage on the family home until it was transferred into her name.  Mr Anderton said he had no other option at the time.

2. Miss Halsey said Mr Anderton had also agreed to pay the early learning centre fees for [Child 1] and [Child 2] in exchange for free board, meals and use of a motor vehicle when he stayed with her mother.  Miss Halsey explained that Mr Anderton was [employed in a position] and would stay at her mother’s home free of charge when he was rostered off.  Miss Halsey said Mr Anderton was happy with this arrangement at the time and there was never any suggestion the early learning centre fees were to be paid in lieu of child support.

3. Mr Anderton said he did stay with Miss Halsey’s mother but usually only every six weeks when he was not working.  Mr Anderton pointed out that the early learning centre fees were at least $600 a month and said at one point he told Miss Halsey he should not be paying child support and the fees.  Mr Anderton said when he stopped paying the early learning centre fees he also told Miss Halsey he would no longer be staying with her mother.

4. Mr Anderton has stated he made a last payment on the home mortgage on 5 November 2018.  Miss Halsey accepts Mr Anderton was making these payments but has said they were in addition to child support.  As the mortgage payments were made monthly by Mr Anderton and the last payment was made on 5 November 2018 this falls outside the opt-in arrears period.  The mortgage payments made cannot be considered as child support.

5. Mr Anderton also argues he was making payments for early learning centre fees which should be considered as child support.  Miss Halsey disagrees.  She has told the Tribunal that under an agreement between the parents Mr Anderton would stay with her mother when he was not working in exchange for paying the early learning centre fees.

6. In circumstances where there is no clear agreement between parents about certain payments being made in lieu of child support and the parents disagree, the Child Support Guide at 5.1.4 offers some guidance in considering the procedure for determining child support amounts which are unpaid during an arrears period and concludes:

   If the parents do not agree and the Registrar cannot be satisfied based on the information and evidence available that payment was made for some or all of the arrears period being claimed, the arrears claim will be accepted.

7. In the absence of conclusive evidence the Tribunal finds the full amount of the early learning centre fees paid by Mr Anderton during the arrears period cannot be accepted as payments made in lieu of child support.

8. The Tribunal can, however, take into account amounts paid during the arrears period that would qualify as prescribed non-agency payments covered by section 71C of the Act.  This section of the Act provides a mechanism whereby payments made by a liable parent for items specified in section 19 of the Child Support (Registration and Collection) Regulations 2018 (the Regulations) may be taken into account in partial satisfaction of the liable parent’s child support liability.  A number of specific criteria must be satisfied for this provision to apply.  Even where all the criteria are met, there is still a discretion in section 71D of the Act to refuse to credit amounts that would otherwise be able to be credited against the liability. Section 71D of the Act states that the Child Support Agency “may refuse to credit an amount under section 71, 71A or 71C if satisfied that, in the circumstances of the particular case, the amount ought not to be credited”.

9. Fees charged for a school or preschool are specified payments in the Regulations.  While there is no disagreement that Mr Anderton was paying the early learning centre fees the Tribunal is satisfied these payments were in exchange for accommodation and meals he was receiving from Miss Halsey’s mother.  The Tribunal considers Mr Anderton undertook to pay the fees in addition to his child support liability.  The Tribunal finds, in the circumstances of this particular case, the prescribed non-agency payments under consideration should be refused under section 71D of the Act.

10. The Child Support Agency determined that an amount of $7,382.20 was the amount of the arrears liability for the period 15 December 2018 to 14 March 2019.  The Tribunal has checked this calculation and finds it to be correct.

11. The parents agree that Mr Anderton made payments on 20 December 2018, 20 January 2019 and 20 February 2019 during the arrears period.  Miss Halsey said Mr Anderton made these payments in arrears.  Mr Anderton told the Tribunal he made his first payment of child support on 20 December 2017.  As the child support case commenced on 3 November 2017 the Tribunal is satisfied payments were being made in arrears, therefore, the payment of $2,400 made by Mr Anderton on 20 December 2018 was to cover the period from 21 November 2018 to 20 December 2018.

12. Miss Halsey requested that outstanding child support payments be collected for the three month arrears period commencing 15 December 2018.  The payment of $2,400 made by Mr Anderton on 20 December 2018 includes six days during the arrears period (15 December 2018 to 20 December 2018).  The Tribunal calculates the amount of child support paid by Mr Anderton during these six days to be $473.10 ($2,400 divided by 30.4375 being the average number of days in a month times six days).  Mr Anderton made a further two payments of $2,400 each during the arrears period.

13. Based on the evidence available, the Tribunal finds that during the three month arrears period from 15 December 2018 to 14 March 2019 Mr Anderton paid child support in the amount of $5,273.10.  Under the Act this amount must be deducted from the arrears.

14. The Tribunal has calculated that total child support assessed from 15 December 2018 to 14 March 2019 was $7,382.20.  As the amount of child support paid by Mr Anderton during this period was $5,273.10, the Tribunal is satisfied that $2,109.10 is payable by Mr Anderton in the arrears period from 15 December 2018 to 14 March 2019.

DECISION

The decision under review is varied so that the amount of child support payable by Mr Anderton in the arrears period is $2,109.10.