Batty and Ingham (Child support)

[2018] AATA 4900

Batty and Ingham (Child support) [2018] AATA 4900 (30 October 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/SC014986

APPLICANT:  Ms Batty

OTHER PARTIES:  Child Support Registrar

Mr Ingham

TRIBUNAL:Member M Douglas

DECISION DATE:  30 October 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – non-agency payment - prescribed payment for school fees - payment correctly credited - 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. Ms Batty and Mr Ingham are the parents of [Child 1] for whom an administrative assessment of child support has issued.  Ms Batty and Mr Ingham also have an older child, namely [Child 2], for whom an administrative assessment of child support had previously issued but which ended [in] October 2017. 

2. The Tribunal is reviewing an objection decision the Child Support Registrar made on 24 August 2018 through a delegate.  That assessment relates only to the assessment of child support for [Child 1].

3. The Tribunal observes that the Child Support Registrar acts through the Department of Human Services and for convenience the Tribunal hereafter shall refer to the Child Support Registrar as the Department. 

4. The objection decision related to an earlier decision the Department made on 31 May 2018 to credit an amount of $904.05 against the amount Ms Batty was liable to pay Mr Ingham in child support in the monthly payment period at the time the credit was made (see pages 31-36 and 107 of the hearing papers).  The amount the Department credited was part of a payment of $2,644 Ms Batty advised the Department on 25 May 2018 that she had paid on 24 May 2018 to the school at which [Child 1] attends. 

5. On 30 May 2018, Mr Ingham objected to the Department’s decision on the basis that Ms Batty had sourced the $2,644 to pay [Child 1’s] school from money that the administrator of the [education] fund had provided to both him and Ms Batty.  Mr Ingham and Ms Batty had contributed into this fund since before [Child 2] started his schooling, so as to provide a source of funds to cover the education cost of both children.

6. The Tribunal observes that the objection officer described the primary decision in regards to which Mr Ingham made an objection as being a decision “to accept a payment of $2,644 paid on 24 May 2018 as a prescribed non-agency payment”.  That was not the decision the primary decision maker made.  The decision the primary decision maker made was a decision under subsection 71C(1), which reads as follows:

   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 the payee of the liability, or 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.”

7. As mentioned, the primary decision was to credit an amount of $904.05 against Ms Batty’s liability for the monthly payment period at the time the decision was made.  The primary decision maker, in order to satisfy herself that paragraphs 71C(1)(a) &(c) had been met, found that the amount that Ms Batty had paid to [Child 1’s] school was $2,644.  That was a finding of fact, not the decision under section 71C.  Her finding of fact was “a step along the way” to the decision that she made.  What the objection officer has done, in describing the primary decision in the manner she did,  is to conflate a finding that was necessary to make with the decision based upon that finding. 

8. The objection officer found, with respect to paragraph 71C(1)(a) that the amount that Ms Batty had paid to [Child 1’s] school was $2,148.58, which was a finding of fact that was different from the primary decision maker’s finding.  Again, the objection officer’s finding is not the decision, but rather a finding of fact “along the way” to the decision.  The objection officer, although saying that Mr Ingham’s objection had “been part allowed”, did not in fact change the decision of the primary decision maker to credit the amount of $904.05 that the primary decision maker made under subsection 71C(1) of the Act.

9. In effect then, although the objection officer expressed the objection decision to have been that Mr Ingham’s objection was “part allowed”, the objection officer refused Mr Ingham’s objection because the objection officer did not change the primary decision maker’s decision to credit the amount of $904.05 against Ms Batty’s child support liability.

10. On 7 September 2018 Ms Batty applied to the Tribunal for review of the objection decision.  The Tribunal heard her application on 30 October 2018.  She and Mr Ingham attended the hearing by telephone and each gave sworn oral evidence.  In addition to that oral evidence the Tribunal had regard to the hearing papers the Department provided (comprising 113 pages) and a further document that Ms Batty provided to the Tribunal which was marked A1.

CONSIDERATION

1. The issue the Tribunal has to consider is whether a credit under subsection 71C(1) of the Act should be made against Ms Batty’s child support liability for the relevant payment period.

2. As mentioned above, Ms Batty and Mr Ingham had been contributing to an [education] fund to provide the funds to cover the cost of their children’s education.  What occurred is that at the end of each year the administrators of that fund would deposit an amount into a bank account that Ms Batty and Mr Ingham jointly held.  They would then draw upon that amount to pay the costs of the children’s schooling in the following year.

3. Ms Batty and Mr Ingham separated on 6 March 2016, although they remained living under the one roof until Mr Ingham moved out on 15 October 2016. 

4. The administrators of the [education] fund deposited an amount of $15,556.42 into the joint account of Ms Batty and Mr Ingham in November 2016.  Ms Batty transferred those moneys to her account so that she would have money to pay the costs of the children’s schooling that were then outstanding and those costs that would become due in the 2017 year.  She then paid amounts totalling $7,079 to [School 1] for amounts outstanding for [Child 2], which amount also included $451 that was paid for his year 12 formal.  She paid $8,433 to [School 2] for fees outstanding for [Child 2].

5. It was Ms Batty’s evidence, which the Tribunal accepts, that the money the administrator of the [education] fund distributed to her and Mr Ingham could be used for any aspect associated with the children’s schooling, including uniforms, excursions and payment of any activity at which one of their children would attend related to their schooling or education, such as [Child 2’s] formal.

6. On 20 September 2017 [School 1], being [Child 1’s] school, issued Ms Batty and Mr Ingham a statement for cost and other items associated with [Child 1’s] attendance at the school in term 4, 2017.  That included the following items:

   PE & F Levy (compulsory)  $     50

   Tuition fees  $2,039

   Year 8 sleep connection  $      8

   Lost library book DC comic  $     30

   Year 8 outdoor and adventure activities        $     35

   Founder’s Day  $     20

   Year 8 language perfect  $     40

   Year 8 English incursion  $      6

   Year 8 PLD  $   171

   Year 8 Chinese excursion  $     20

   Building fund donation  $   225

7. These amounts total $2,644 and Ms Batty paid that amount to the school on 24 May 2018.

8. Paragraph 71C(1)(b) requires that for an amount to be credited under subsection 71C(1) the payment must be of a kind specified in the regulation.  Clause 19 of the Child Support (Registration & Collection) Regulation 2018 specifies, for the purposes of subparagraph 71C(1)(b) of the Act, fees charged by a school for a child.

9. Of the amounts [Child 1’s] school listed in its statement issued on 20 September 2017 to Ms Batty and Mr Ingham, the Tribunal considers that the amount for the building fund donation is not a fee that was charged by the school for the child.  Essentially that was a request for Mr Ingham and Ms Batty to make a donation.  Further, the amounts listed for Year 8 sleep connection, the lost library book and the Founder’s Day do not appear to be fees that the school has charged, but rather a request for reimbursement of an expense that has been incurred as a consequence of some activity which [Child 1] undertook.  In short, the Tribunal considers that of the amount that Ms Batty paid on 24 May 2018, $2,361 were fees charged by [Child 1’s] school for [Child 1].

10. The evidence before the Tribunal also establishes that Ms Batty did not have at least regular care of [Child 1] at the time she made the payment on 24 May 2018 or at the time on 31 May 2018 that the primary decision maker applied section 71C.  The phrase “sum of those payments” in paragraph 71C(1)(c) is a reference to all of the payments made that fall within paragraph 71C(1)(b), of which in this case there is only one, being the amount just mentioned.  As no payments had previously been credited against Ms Batty’s liability the amount of $2,361 was available to be credited under subsection 71C(1) to the extent of 30% of Ms Batty’s child support liability for the particular payment period in which the section was applied by the Department.

11. It should be noted that section 71D provides the Department with the discretion not to credit the payments if the Department, or the Tribunal standing in its place, is satisfied that the circumstances of the particular case are such that the payments ought not to be credited.  There is nothing arising from the evidence in this case which indicates that the discretion under section 71D ought to be exercised. 

12. Accordingly, the Department was required to credit the amount of $904.05 against Ms Batty’s child support liability on 30 May 2018.

13. Accordingly, the objection decision, which was to refuse the objection of Mr Ingham with respect to the Department crediting that amount, is affirmed.  Again for the sake of clarification, the objection officer’s finding with respect to paragraphs 71C(1)(a) and (b) that the amount Ms Batty had paid was $2,148.58 was not the decision, but rather a finding of fact.

DECISION

The decision under review is affirmed.