Carey and Carey (Child support)

[2018] AATA 2414

Carey and Carey (Child support) [2018] AATA 2414 (5 June 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2018/MC013820

2018/MC013844

APPLICANT:  Mr Carey

OTHER PARTIES:  Child Support Registrar

Ms Carey

TRIBUNAL:Member F Hewson

DECISION DATE:  5 June 2018

DECISION:

In relation to application MC013820 the tribunal decided to set aside the decision under review and substitute its decision that an amount of $177 is to be credited against Mr Carey’s child support liability, in respect of a payment made by him on 7 November 2017.

In relation to application MC013844 the tribunal decided to affirm the decision under review.

CATCHWORDS
Child support - Non agency payments - Whether travel costs were mutually intended to be in lieu of child support - Decision to credit part of a payment - Decision under review set aside and substituted

Child support - Non agency payments - Whether travel costs were mutually intended to be in lieu of child support - Decision not to credit the payments - 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. This application for review is about whether expenses incurred by Mr Carey to have contact with his daughter, in respect of whom there is a child support assessment, can be credited against his child support liability.

2. On 21 August 2017 Mr Carey applied to the Department of Human Services—Child Support (the Department) for expenses he incurred between 2014 and 2016, for a combined amount of $2,439.62, to be credited against his child support liability. On 5 September 2017 a decision was made to credit the payment of $232 only.

3. Also on 20 November 2017, Mr Carey applied to the Department for expenses he had incurred on 7 November 2017 and 8 November 2017, in the amounts of $354 and $232 respectively, to be credited against his child support liability. On 20 November 2017 a decision was made not to credit the payments.

4. Mr Carey lodged objections in relation to decisions of 5 September 2017 and 20 November 2017. On 14 March 2018 an objections officer disallowed both objections.

5. On 5 April 2018 (2018/MC013820) and 10 April 2018 (2018/MC013844) Mr Carey lodged applications for review by the Social Services and Child Support Divisions of the Administrative Appeals Tribunal (the Tribunal) of the objection decisions made on 14 March 2018. The applications were heard on 5 June 2018. Mr Carey spoke to the Tribunal by conference telephone. Ms Carey also spoke to the Tribunal by conference telephone. The Child Support Registrar did not attend the hearing. As well as the evidence of Mr Carey and Ms Carey the Tribunal also had regard to documents provided by the Department, a copy of which was given to the parties.

ISSUES

1. The relevant legislation in this case is in the Child Support (Registration and Collection) Act 1988 (the Act) and in the Child Support (Registration and Collection) Regulations 1988 (the Regulations).

2. When the Department registers a child support liability for collection the amounts payable become a debt due to the Commonwealth and are payable to the Child Support Registrar, pursuant to section 30 of the Act.  In some circumstances payments made directly to a payee or to a third party may be credited against a child support liability that is registered for collection by the Department (sections 71, 71A and 71C). The Department refers to these credits as ‘non-agency payments’ or ‘prescribed non-agency payments’. Section 71D of the Act provides that the Registrar may refuse to credit an amount under sections 71, 71A or 71C if satisfied that in the circumstances of the case the amount should not be credited.

3. In this case, the Tribunal must determine:

   ·     whether Mr Carey made the payments which he has asked to be credited against his child support liability;

   ·     whether the payments were made during a period when the maintenance liability was enforceable by the Department;

   ·     whether the payment is a non-agency payment or a prescribed non-agency payment;

   ·     whether both the payer and the payee intended that the payments were paid in complete or partial satisfaction of an amount under the maintenance liability;

   ·     whether the payment can be credited against Mr Carey’s registered and enforceable maintenance liability; and

   ·     if the payment can be credited against Mr Carey’s registered and enforceable maintenance liability, whether or not in the circumstances of this particular case, the amount ought to be credited.

CONSIDERATION

1. Section 71 of the Act concerns payments made to the payee. Section 71A concerns payments made to third parties. Both provisions require that the payment was made by the payer of a child support liability collectable by the Department and the payment was intended by both child support parties, at the time it was made, to be a payment in satisfaction of the child support liability.

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

3. The documents provided by the Department show that the child support case was registered in October 2009 and was enforceable by the Department from 5 March 2014. There is no dispute that the payments Mr Carey is seeking to have credited against his child support liability were made after that date.

4. On 21 August 2017 Mr Carey lodged non-agency payments as follows:

   ·     a payment made on 16 November 2014 in the amount of $109.40 for return flights between [specified cities];

   ·     a payment made on 8 December 2014 in the amount of $390.00 for return flights between [specified cities];

   ·     a payment made on 16 January 2015 in the amount of $38.19 for a flight between [specified cities];

   ·     a payment made on 17 January 2015 in the amount of $149.00 for a flight between [specified cities];

   ·     a payment made on 6 March 2015 in the amount of $429.00 for return flights between [specified cities];

   ·     a payment made on 11 July 2015 in the amount of $397.98 for return flights between [specified cities];

   ·     a payment made on 25 March 2016 in the amount of $567.27 for a flight between [specified cities];

   ·     a payment made on 25 May 2016 in the amount of $357.79 for return flights between [specified cities].

5. On 20 November 2017 Mr Carey lodged non-agency payments as follows:

   ·     a payment made on 7 November 2017 in the amount of $354 for return flights between [specified cities] (on 16 December 2017 and 16 January 2018);

   ·     a payment made on 8 November 2017 in the amount of $232 for return flights between [specified cities].

Can the payments in November 2017 be credited as non-agency payments against Mr Carey’s child support liability?

1. The tribunal discussed the non-agency payments with the parties at length in the hearing. In relation to the flights in November 2017, Mr Carey argued that the contemporaneous evidence in relation to the payment for flights for [Child 1], including emails between the parties, clearly shows that there was a mutual intention that the payments were to be included as child support. The agreement in relation to the return flights between [two of the specified cities] is contained in emails in August and October 2017. Mr Carey said he also has a copy of an email dated 25 October 2017, which is not included in the documents, which he said contains Ms Carey’s agreement to the payment for return flights to [City 1] being included as child support.

2. Mr Carey argued that the change in Ms Carey’s view about whether the payments should be credited as child support after the fact, because of the late payment of child support payments and because [Child 1] didn’t return to [City 2] did not change that fact and was not relevant to whether the payment had been intended as child support. He argued that, in any case, there was a blanket agreement, based on previous decisions and actions.

3. In relation to the payment made on 7 November 2017 for [Child 1]’s return flights between [two specified cities], Ms Carey confirmed that she had agreed that the payment was in lieu of child support. She said [Child 1] did not return to [City 2] as she had intended, because she remained with Mr Carey, and she did not, therefore, agree that the payment for the return flight should be credited as child support. In relation to the payment made on 8 November 2017, Ms Carey said the flight was so that [Child 1] could travel with Mr Carey to visit his family. She said she did not dispute the evidence of Mr Carey that she agreed to the flight to [City 1] being treated as child support in an email (not contained in the documents) dated 25 October 2017. She reiterated that she had agreed on the expectation that [Child 1] would return to [City 2]. Ms Carey said there was never any agreement between her and Mr Carey that all flights would be treated as child support.

4. The evidence before the tribunal includes email exchanges between Mr Carey and Ms Carey in relation to [Child 1]’s flights between [specified cities]. On 20 August 2017, Mr Carey asked Ms Carey to confirm that “this too you intend to be a ‘non-agency payment’”. On the same date Ms Carey responded, stating: “Yes, I will confirm this flight as a non-agency payment”. The dates for the flights were agreed by email on 29 October 2017. [Child 1] flew to [City 3] as intended on 16 December 2017. Mr Carey subsequently advised of a change in the care of [Child 1] and, from 24 December 2017, he was assessed as having a percentage of care for [Child 1] of 91% and became entitled to receive child support from Ms Carey.

5. The tribunal found that Mr Carey made payments for flights for [Child 1] on 7 and 8 November 2017, as set out above. It also found that in advance of Mr Carey making those payments, Ms Carey confirmed that she would agree to the payments being treated as child support. The tribunal was satisfied that the payments met the requirements of section 71A of the Act and, subject to section 71D of the Act, can be credited as non-agency payments.

6. Section 71D of the Act provides that the Registrar 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. The tribunal concluded that in the particular circumstances of this case, taking into account that [Child 1] did not make the return journey to [City 2], the flight to [City 1] was not for the purpose of [Child 1] having contact with Mr Carey and, from 24 December 2017, Mr Carey has been assessed as the parent entitled to child support, only half of the payments made on 7 November 2017 should be credited as child support against Mr Carey’s liability. This amounts to $177. In relation to the payment made on 8 November 2017, the tribunal concluded that the decision to credit this payment was not before the tribunal because it is not a decision Mr Carey could object to, and Ms Carey did not object to the decision.

Can the payments for flights from 2014 to 2016 be credited as non-agency payments against Mr Carey’s child support liability?

1. In relation to the payment for flights for [Child 1] from 2014 to 2016, Mr Carey said he did not apply for them to be credited as non-agency payments until August 2017 because he felt overwhelmed following Ms Carey’s move interstate and it was not until 2017 that he got to the point where he could pursue the matter. He said he had no documentary evidence that there was agreement with Ms Carey that the amounts would be credited as child support. He said there was no specific verbal agreement. He said there was rarely email contact between him and Ms Carey between 2013 and 2016. The tribunal noted that in September 2016 Mr Carey applied for a $528 payment to be credited, but it was almost another year before he claimed the earlier payments. Mr Carey said he had hoped to achieve a broader financial reconciliation in relation to the child support liability, but he had abandoned the idea of achieving this. He said the little he could do, administratively, was to go back over the period of child support collection and claim the flights accordingly.

2. In relation to the payments made for flights for [Child 1] to have contact with Mr Carey from 2014 to 2016, Ms Carey said she never agreed to a blanket arrangement for all flights to be treated as child support. She said it was her expectation that there would be communication in relation to the particular travel arrangements. In relation to occasions she had agreed to flights being credited as child support she said, “I felt for him. I listened to what he was going through”. She said there was a time she was aware that Mr Carey was having financial difficulty and she helped if she could, she said, however, that she also had to take into account her situation.

3. The evidence before the tribunal includes a table submitted by Mr Carey which includes details of the flights booked by Mr Carey for [Child 1], including booking reference numbers, the date of the flight and the date of booking/payment. Mr Carey argued that agreement that the flights would be included as child support could be inferred from Ms Carey’s actions, having agreed on other occasions. Ms Carey disagreed that there had ever been a blanket agreement about the flights. She said it was her expectation that there would be communication about each flight and she may or may not agree to the payment being credited. It was Mr Carey’s evidence that there was no specific written or verbal agreement about the flights being credited as child support. The tribunal was of the view that Mr Carey’s requests in August and October 2017 for email confirmation of Ms Carey’s agreement about the payments made in November 2017, discussed above, indicates that whatever understanding they had, there was an expectation that there would be explicit agreement to the payments, rather than reliance on a pre-existing agreement.  

4. The tribunal found that Mr Carey made payments for flights for [Child 1] from 2014 to 2016, as set out above. It was not satisfied, however, that it was intended by both Mr Carey and Ms Carey that the payments would be in complete or partial satisfaction of an amount payable under the child support assessment. The payments, therefore, do not meet the requirements of section 71A of the Act and cannot be credited as non-agency payments.

DECISION

In relation to application MC013820 the tribunal decided to set aside the decision under review and substitute its decision that an amount of $177 is to be credited against Mr Carey’s child support liability, in respect of a payment made by him on 7 November 2017.

In relation to application MC013844 the tribunal decided to affirm the decision under review.