Boyett and Fowler (Child support)

[2023] AATA 848

Boyett and Fowler (Child support) [2023] AATA 848 (13 March 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/BC025089

APPLICANT:  Mr Boyett

OTHER PARTIES:  Child Support Registrar

Ms Fowler

TRIBUNAL:Member J Leonard

DECISION DATE:  13 March 2023

DECISION:

The decision under review is varied so that the unpaid amount in the period 18 March 2022 to 7 April 2022 is $368.51. 

CATCHWORDS

CHILD SUPPORT - opt-in arrears - whether there were unpaid amounts -  decision under review varied

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 Boyett is the parent liable to pay child support to Ms Fowler for their child. The case commenced on 28 February 2022 and child support was collected privately.

2. On 8 April 2022 Ms Fowler applied for the liability to be collected by Services Australia – Child Support (Child Support) and also requested that arrears of three weeks be collected.

3. On 2 May 2022 Child Support accepted Ms Fowler’ application for agency collection from 6 April 2022 and calculated the unpaid amount in the period 6 March 2022 to 5 April 2022 was $439.23.

4. On 11 May 2022 Child Support accepted various non-agency payments made by Mr Boyett between 8 April 2022 and 21 April 2022 totalling $1,000. On 23 June 2022 a decision was made to refuse to accept a payment dated 2 March 2022 as a non-agency payment.[1]

   [1] Page 57

5. In a document dated 6 July 2022 Mr Boyett objected to the decision not to include a payment of $200 he made on 2 March 2022 when determining the ‘opt in arrears’. Child Support stated the objection was lodged on 14 July 2022. This was treated by Child Support as an objection to the decision made on 2 May 2022.

6. On 26 October 2022 an objections officer partly allowed Mr Boyett’s objection and decided that the application for collection was submitted on 8 April 2022, and the unpaid amount in the three-week period 18 March 2022 to 7 April 2022 was $568.51.

7. Mr Boyett lodged an application for review of the decision with the Tribunal on 21 November 2022. A hearing was conducted on 13 March 2023. Mr Boyett gave evidence on affirmation to the Tribunal via MS Teams audio. Ms Fowler did not attend the hearing. Child Support provided the Tribunal and the parties with a bundle of documents relevant to the review (141 pages). Mr Boyett provided documents which are numbered A1 to A12.

ISSUES

1. The statutory provisions relevant to this review are in the Child Support (Registration and Collection) Act 1989 (the Act).

2. Although three separate primary decisions were made, the only decision reviewed by an objections officer is the decision dated 2 May 2022.

10.  The issue that must be decided is the amount (if any) of child support arrears Mr Boyett is liable to pay for the opt-in arrears period.

CONSIDERATION

1. The payee of a registered maintenance liability may elect in the child support application that the liability is not enforceable (that is, the child support is collected privately and not by Child Support) (section 24A of the Act). 

2. At a later time, the payee may apply to Child Support for the liability to become enforceable (section 28A of the Act).

3. The Tribunal finds that Ms Fowler applied for the liability to become enforceable on 8 April 2022.

4. The payee may also apply to Child Support for any unpaid amounts payable under the liability in relation to a specified period (the opt-in arrears period) to be treated as arrears amounts. The specified period ends on the day before the liability becomes enforceable (subsection 28A(3) of the Act). If the specified period does not exceed three months, Child Support must grant the payee’s application (subsection 28A(4)).

5. The Tribunal finds that Ms Fowler applied for three weeks’ arrears to be collected. Her application for arrears must be granted and covers the period 18 March 2022 to 7 April 2022. During this 21-day period the daily rate of child support was $27.07187. The Tribunal has calculated that Mr Boyett’s liability for the period 18 March 2022 to 7 April 2022 was $568.51.

What is the quantum of the unpaid amount?

1. Mr Boyett provided evidence of payments made to Ms Fowler since 6 January 2022 as evidence of his weekly child support payments which were in excess of his weekly liability of $189.50. The bank transactions are referenced ‘child support’.

2. The payments of $200 paid on 8 April 2022, 13 April 2022, 21 April 2022 together with the amount of $400 paid on 21 April 2022 were accepted as non-agency payments on 11 May 2022.

3. Mr Boyett is self-employed and stated the day of the week the payments were made varied depending upon when he received income into the business. This then determined when his personal and business liabilities were paid. He stated that the child support payments were made in advance for the following week. He stated they were definitely not in arrears. This is consistent with his oral evidence to Child Support on 8 September 2022 in which he discussed the period covered by the payments made on 2 March 2022 and 10 March 2022.

4. Ms Fowler did not take part in the hearing, but a file note recorded on 9 September 2022 states:

   Ms Fowler did not want to complete FC discussion. She stated that ths occurred so long ago and she

   believes that all payments are up to date. She stated that things are amicable between parents and she does not want to do anything that might inflame things. She is happy for a decision to be made.

   I explained that we as objection has been lodged, we need to finalise it but she insisted that she

   didn't want to complete FC discussion. She stated she had already spent a long time on the phone before she was transferred. She repeated that she believes that all if ok with case with no arrears and she is "happy to leave it".[2]

   [2] Page 86

5. In calculating the unpaid amount, subsection 28A(7) of the Act specifies that the unpaid amount does not include a reference to any amount that would have been credited against the liability under section 71C of the Act if the liability had been an enforceable maintenance liability at all relevant times. If relevant, the Tribunal will also exclude payments of the type covered by sections 71 and 71A of the Act. These sections require an intention by both Ms Fowler and Mr Boyett that the payments be in satisfaction of the child support liability.

6. The Tribunal infers that Ms Fowler was of the view that the payments deposited into her account were in satisfaction of the child support liability. The payments made prior to 18 March 2022 have no bearing on the unpaid amount in the specified period. Child Support was of the view that the payment made on 18 March 2022 was for a period prior to 18 March 2022.

7. Given the established weekly pattern of payment, Mr Boyett’s oral evidence, and the view held by Ms Fowler that “all payments are up-to-date”, the Tribunal finds that in the opt-in arrears period Mr Boyett was liable to pay Ms Fowler child support of $568.51 and he paid an amount of $200 to Ms Fowler in advance for child support on 18 March 2022. The unpaid amount of child support under the liability is $368.51.

8. Mr Boyett sought to receive “credit” for the payments he made in the period 6 January 2022 to 10 March 2022 which were in excess of the child support liability. The Tribunal explained that the unpaid amount cannot take into consideration the amounts paid prior to the specified period.

DECISION

The decision under review is varied so that the unpaid amount in the period 18 March 2022 to 7 April 2022 is $368.51.