Ashurst and Robertson (Child support)

[2019] AATA 377

Ashurst and Robertson (Child support) [2019] AATA 377 (10 January 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/SC014945

APPLICANT:  Mrs Ashurst

OTHER PARTIES:  Child Support Registrar

Mr Robertson

TRIBUNAL:Member F Hewson

DECISION DATE:  10 January 2019

DECISION:

The tribunal decided to set aside the decision under review and sends the matter back to the Child Support Registrar for reconsideration on the basis arrears of child support are owed by Mr Robertson for the period from 1 June 2018 to 2 July 2018.

CATCHWORDS

CHILD SUPPORT – application for collection of ongoing child support and arrears – whether private payments had been made in advance or in arrears – unpaid amounts – decision under review set aside and the matter remitted for reconsideration

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. Mrs Ashurst and Mr Robertson are the parents of [Child 1] aged 13. A child support case in respect of [Child 1] was registered in August 2005. From 1 May 2014 the child support was being collected privately.

2. On 3 July 2018 Mrs Ashurst contacted the Department of Human Services—Child Support (the Department) and requested that the Department collect child support on her behalf from Mr Robertson, who was assessed to be the parent liable to pay child support.  She also requested that arrears be collected for the period from 3 June 2018 to 2 July 2018.

3. On 13 July 2018, the Department accepted Mrs Ashurst’s application for collection of the child support from 3 July 2018, and for the collection of child support arrears from 2 June 2018 ($859.63).

4. Mr Robertson lodged an objection to the decision and on 3 September 2018 an objections officer partly allowed the objection. The objections officer decided to accept Mrs Ashurst’s application for collection of child support, but was not satisfied that arrears of child support were owed by Mr Robertson.

5. On 3 September 2018 Mrs Ashurst 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 20 November 2018 the tribunal conducted a hearing at which Mrs Ashurst gave evidence by conference telephone.  Mr Robertson also attended the hearing by conference telephone. The Child Support Registrar did not attend the hearing.

7. As well as the evidence of Mrs Ashurst and Mr Robertson, the tribunal also had regard to documents provided by the Department, a copy of which was provided to the parties, and to a written submission from Mrs Ashurst.  It also had regard to additional information obtained from the Department after the hearing, a copy of which was sent to the parties for comment by 11 January 2019. As no response was received from the parties the tribunal proceeded to make its decision.

ISSUES

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

2. The issue in this case is whether Mrs Ashurst is owed arrears of child support for the period 3 June 2018 to 2 July 2018.

CONSIDERATION

Application for collection of arrears

1. Section 39A of the Act provides that if a payee applies under subsection 39(1) for a liability to again become enforceable by the Department, the payee can also apply for any unpaid amounts payable in relation to the ‘maximum arrears period’ to be collected by the Department. If the application is successful, the unpaid amounts are treated as if they were payable during a period of collection and are collectable by the Department.

2. The ‘maximum arrears period’ starts nine months before the application for the liability to be enforced by Department was made, and ends on the day before that application was made (on 2 July 2018).

3. Mrs Ashurst asked the Department to collect unpaid amounts of child support for the period from 3 June 2018 to 2 July 2018 (the arrears period). Subsection 39A(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 must determine if there were unpaid amounts of child support during the arrears period.

Amount of arrears

1. At the hearing Mrs Ashurst said she disputes that Mr Robertson had paid her child support for the period 3 June 2018 to 2 July 2018 before she made the application for collection of child support on her behalf on 3 July 2018. She said during the private collect period, from 2014 to 2018 the child support payments were made by Mr Robertson in arrears, which she said had been confirmed with the Department at various points. Mrs Ashurst referred to a table she had prepared, which she said showed that the payments in the period from May 2014 to July 2018, when the child support was collected privately, were paid in arrears.

2. Mr Robertson disputed that he had been paying child support in arrears. He said the payments were in advance, as requested by Mrs Ashurst. He said he made two payments in August 2014 as well as payments directly to the Department in April, June and July 2014. Mr Robertson referred to transactions shown in his bank statements from 2014 to 2018, which he said shows the payments were in advance. Each transaction indicates the month for which the child support was paid. The transaction on 28 May 2018, for example, indicates that the payment is for June 2018.

3. In relation to the two payments made by Mr Robertson in August 2014, on the first of the month and on the 29^th, Mrs Ashurst said the payment on the first was for July 2014 and the payment on the 29^th was for August. She conceded that Mr Robertson had generally indicated the month that the payment was for, which she disagreed with, but she said she didn’t want to get into a dispute about it. Mr Robertson said he considers that it is unfair that Mrs Ashurst is seeking further payments on the basis that the payments were in arrears four years after he believes he commenced making payments in advance.

4. The tribunal considered the available evidence. The child support case in respect of [Child 1] commenced from 4 August 2005 and was collected privately from that date until 8 January 2006, when Mrs Ashurst applied for the child support to be collected on her behalf. The application was accepted and was collected by the Department until 1 May 2014 when it again became ‘private collect’. As set out above, Mrs Ashurst applied for the child support to again be collected on her behalf on 3 July 2018, and for the collection of arrears for the period from 3 June 2018 to 2 July 2018.

5. The documents show that child support was paid in arrears when the case became private collect from 1 May 2014.  A payment by Mr Robertson to the Department on 4 April 2014 was for March 2014. Mr Robertson made a payment of $500 directly to Mrs Ashurst on 30 April 2014, which the documents obtained after the hearing show was recorded by the Department (on 28 May 2014) as a non-agency payment and was applied to the child support liability for April 2014. A further payment of $5 paid to the Department and recorded in Mrs Ashurst table as having been received by her on 2 May 2014 was for April and meant that the child support was paid to 30 April 2014. The next payment made by Mr Robertson, according to Mrs Ashurst’s records, on 28 May 2014 was payment for May (i.e. it was paid in arrears), but is not shown in Mr Robertson’s statements. Mr Robertson’s bank records indicate that he made a subsequent payment of $500 to the Department on 25 June 2014, which his records indicate was re-credited to his account on 1 July 2014. Mrs Ashurst’s table indicates that she received payment of child support directly from Mr Robertson for June 2014 on 2 July 2014, although this is not clear from the bank records.

6. The payments shown in Mr Robertson’s bank statements generally correspond with the payments set out in Mrs Ashurst’s table, apart from four payments which appear in the table submitted by Mrs Ashurst but not in the statements submitted by Mr Robertson: the payment on 28 May 2014, referred to above; the payment received by Mrs Ashurst on 2 July 2014; a payment of $500 received by Mrs Ashurst on 29 July 2015 and a payment of $694.92 received by Mrs Ashurst on 25 January 2018. The tribunal accepted on the basis of Mrs Ashurst records that she received those payments. Having regard to all of the evidence, the tribunal concluded that the final payment Mr Robertson made directly to Mrs Ashurst’ on 28 May 2018 was for May 2018. It was satisfied that when Mrs Ashurst applied for child support to be collected on her behalf on 3 July 2018, Mr Robertson had not made any payment for June 2018.

DECISION

The tribunal decided to set aside the decision under review and sends the matter back to the Child Support Registrar for reconsideration on the basis arrears of child support are owed by Mr Robertson for the period from 1 June 2018 to 2 July 2018.