Atteberry and Atteberry (Child support)

[2021] AATA 1262

Atteberry and Atteberry (Child support) [2021] AATA 1262 (9 April 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC020744

APPLICANT:  Mr Atteberry

OTHER PARTIES:  Child Support Registrar

Ms Atteberry

TRIBUNAL:Member J Thomson

DECISION DATE:  9 April 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – non-agency payment – prescribed payment for school fees – part payment correctly credited – liable parent regular care of child – 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 Atteberry and Ms Atteberry are the parents of [Child 1], born 2005, and [Child 2], born 2003. This matter relates to the school fees for the child [Child 1] who is currently in the 75% care of Mr Atteberry, and the 25% care of Ms Atteberry.

2. Mr Atteberry seeks review of an objection decision made by the Child Support Agency (the CSA) ON 3 February 2021. This decision disallowed his objection to an earlier decision of the CSA to credit only $383.63 of a total payment of $1,412.75, claimed by Mr Atteberry as a prescribed non-agency payment (NAP), made by Mr Atteberry to [School 1] for [Child 1’s] school fees on 19 October 2020.

3. The Tribunal heard the matter on 23 March 2021. Both parents attended the hearing via conference telephone and gave affirmed evidence. The Tribunal had before it documentation provided by the CSA (Exhibit 1), and documentation provided by Mr Atteberry (Exhibit A). Both parents had copies of these papers with them at the hearing.

ISSUES

1. The issues which arise in this case appear in the Reasons set out below.

CONSIDERATION

1. In reaching its decision, the Tribunal has considered the affirmed evidence given by the parents at the hearing, and the documentation contained in Exhibits 1 and A.

2. 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). The Relevant provisions are set out below.

3. Subsection 71A(1) of the Registration Act provides that, subject to section 71D, if:

   (a)   the payer of an enforceable maintenance liability pays a third party an amount that partially or completely satisfies a debt owed by:

   (i)the payee of the enforceable maintenance liability; or

   (ii)the pay of her; all

   (iii)both the payer and payee; and

   (b)   the payer or the payee applies to the Registrar, in the manner specified by the Registrar, to have the amount, or part of the amount, received by the third party treated as having been paid to the Registrar; and

   (c)   the amount paid, or a part of the amount paid, was intended by both the payer and the payee to be paid incomplete or partial satisfaction of an amount payable under the enforceable maintenance liability in relation to the child support enforcement period;

   the Registrar must, in spite of section 30 and in accordance with subsections (2) and (3), credit the amount, or part of the amount, received by the third party against the amount payable under the enforceable maintenance liability

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

   (a)   the payer of an enforceable maintenance liability in relation to a payment period 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 care of any of the children to whom the relevant administrative assessment relates; and

   (c)   the sum of those payments 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, despite section 30, 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.

5. Regulation 19 of the Regulations lists the specified payments referred to in paragraph 71C(1)(b) above, and relevantly, includes fees charged by a school for the child.

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

7. It was not disputed that both parents had agreed that [Child 1] should be educated privately, and accordingly, he had been enrolled at [School 2] at [Suburb], NSW. Relevantly, the tuition fees charged by [School 2], according to the evidence of both parents at the hearing, were approximately $767 per term, and both parents acknowledged that they had agreed to share equally in the payment of these fees.

8. Mr Atteberry gave evidence that in November 2019, [Child 1] and Ms Atteberry had a falling out, and [Child 1] left her house and went to live with Mr Atteberry. The care change resulting from the event is recorded at page 93 of the CSA documentation, Exhibit 1, reflecting Mr Atteberry’s care percentage for [Child 1] from 7 November 2019 as 75%, and Ms Atteberry’s care percentage as 25%.

9. Mr Atteberry gave evidence that when [Child 1] came to live with him, the child complained of difficulties travelling from Mr Atteberry’s house to school at [School 2], apparently some distance from Mr Atteberry’s house,  resulting in him experiencing travel exhaustion, and other issues, as a consequence of which Mr Atteberry made a unilateral decision to remove [Child 1] from [School 2] and enrol him at [School 1], a catholic college closer to where Mr Atteberry resided. However, the tuition fees at [School 1] were higher at $1,412.75 per term than the tuition fees at [School 2] at $767 per term.

10. Mr Atteberry’s case rested on his submission that both parents had agreed to share the costs of [Child 1’s] school fees equally, and that accordingly, it was appropriate that he be entitled to recover half of [Child 1’s] terms fees of $1,412.75 he remitted to [School 1] on 19 October 2020.

11. Ms Atteberry’s evidence at the hearing was that, while she acknowledged she had agreed to share the cost of [Child 1’s] school fees, she had done so on the basis that he was attending [School 2] and that her share of the school fees would be approximately $383 per term; an amount she said she could afford. She also gave evidence that she had not agreed to Mr Atteberry removing [Child 1] from [School 2] and enrolling him at [School 1], and had proposed to Mr Atteberry that [Child 1] be sent to a more affordable public school closer to Mr Atteberry’s residence.

12. In support of her evidence, she referred the Tribunal to an email exchange between her and Mr Atteberry over the course of 5 August 2019 to 10 August 2019, regarding Mr Atteberry’s decision to remove [Child 1] from [School 2] and enrol him at [School 1]. It appears from this email exchange that while Ms Atteberry did not agree to [Child 1’s] enrolment at [School 1], she was prepared to contribute an amount equal to her half-share of the [School 2] fees. There is also a reference in this exchange to Mr Atteberry seeking Ms Atteberry’s co-operation in complying with [School 1]’s enrolment requirements by offering to accept full responsibility for [School 1]’s fees in exchange for her consent to [Child 1’s] enrolment at [School 1] in 2020.

13. Paragraph 71A(1)(c) of the Registration Act requires both parents to agree that the amount paid by Mr Atteberry to [School 1] on 19 October 2020 was intended to be paid in complete or partial satisfaction of the amount payable under his enforceable maintenance liability in relation to Ms Atteberry’s child support enforcement period. The evidence, as outlined above is that Ms Atteberry only agreed to contribute $363.63, (an amount equal to her half-share of the [School 2] term fees) towards [Child 1’s] [School 1] school fees. Indeed, the evidence is that she has agreed to that amount being credited against Mr Atteberry’s child support liability.

14. Section 71C  of the Registration Act permits a payer of  an enforceable maintenance liability to claim school fees as specified in regulation 19 of the Regulations, but only if the payer has less than regular care of the subject child in the assessment at the  time the payment of the school fees is made and also at the time the Registrar applies the provisions of section 71C. In this case, the evidence is that Mr Atteberry had 75% care on [Child 1] at the time he made the payment of $1,412.75 in response to the fee statement he received from [School 1]. He therefore fails to comply with paragraphs 71C(1)(ba) and (d) of the Registration Act.

15. The Tribunal has found that the payment made by Mr Atteberry to [School 1] on 19 October 2020 for [Child 1’s] school fees does not satisfy the requirements of subsection 71C(1) to qualify as a prescribed NAP, and that Ms Atteberry has agreed to only $363.63 (an amount equal to half of her share of the term fees charged by [School 2])  being credited against  Mr Atteberry’s child support liability. Accordingly, the Tribunal finds that the Registrar was correct in deciding to credit only $363.63 against Mr Atteberry’s child support liability and refusing to credit $1,029.12; the balance of his total prescribed NAP of $1,412.75.

16. As the Tribunal has reached the same conclusion as the objections officer in the decision under review, the Tribunal affirms that decision.

DECISION

The decision under review is affirmed.