Carey and Ridge (Child support)

[2021] AATA 2915

Carey and Ridge (Child support) [2021] AATA 2915 (23 June 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/AC021289

APPLICANT:  Mr Carey

OTHER PARTIES:  Child Support Registrar

Ms Ridge

TRIBUNAL:Member P Jensen

DATE OF DECISIONS:                   23 June 2021

DECISIONS:

The decisions under review are varied so that, in respect of the payments of $1,490.50 on 18 August 2020 and $1,565.00 on 11 November 2020, 15% of the payments are credited as prescribed non-agency payments pursuant to section 71C of the Child Support (Registration and Collection) Act 1988 and 85% of the payments are not credited as prescribed non-agency payments pursuant to section 71D of the Child Support (Registration and Collection) Act 1988.

CATCHWORDS

CHILD SUPPORT – non-agency payment – prescribed payment for school fees – whether discretion to refuse to credit should be applied – percentage of payment should be credited – decision under review varied

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 DECISIONS

1. Mr Carey and Ms Ridge are the parents of [Child 1] and [Child 2]. A child support case was registered in 2014 with what is commonly called the Child Support Agency or CSA. Mr Carey was recorded as providing 21% care and Ms Ridge was recorded as providing 79% care for the children. Mr Carey was administratively assessed to pay child support to Ms Ridge. Ms Ridge initially elected to collect the child support privately rather than have the CSA collect it on her behalf.

2. On 14 August 2017, Ms Ridge applied to have the CSA collect the ongoing child support payable. The CSA granted her application and Mr Carey’s ongoing child support payable consequently became a liability that he owed to the CSA. He could discharge the liability by making payments directly to the CSA. If certain requirements were satisfied, he could also discharge the liability by making payments to third parties. Such payments are called non‑agency payments, a subset of which are called prescribed non-agency payments.

3. A change in care occurred on 20 August 2018. Mr Carey was recorded as providing 28% care and Ms Ridge was recorded as providing 72% care. A further change in care occurred on 30 January 2020 but, for reasons which need not be explained here, the parents’ existing percentages of care remained in force for a further six months, after which Ms Ridge was recorded as providing 100% care for both children.

4. The children attend [a named] School. On 1 February 2021, Mr Carey applied to have the following four payments to [the] School credited as prescribed non-agency payments:

   ·    a payment on 17 March 2020 of $1,490.50;

   ·    a payment on 18 August 2020 of $1,490.50;

   ·    a payment on 24 September 2020 of $40.00; and

   ·    a payment on 11 November 2020 of $1,565.00.

5. The CSA decided to credit the payments that were made on 18 August 2020 and 11 November 2020 as prescribed non-agency payments. The CSA decided to not credit the other two payments. Ms Ridge promptly objected to the decisions to credit the payments that were made on 18 August 2020 and 24 September 2020. An objections officer allowed her objection and decided to not credit those two payments. Mr Carey promptly applied to the Tribunal for review of those decisions. I heard the matter on 23 June 2021. Mr Carey and Ms Ridge gave sworn evidence by conference phone.

6. Section 71C of the Child Support (Registration and Collection) Act 1988 (“the Act”) provides that, subject to section 71D of the Act, a payment must be credited as a non‑agency payment if certain requirements are satisfied. There is no dispute that those requirements are satisfied in respect of the payments that were made on 18 August 2020 and 24 September 2020. In particular, Mr Carey was recorded as providing less than 14% care when he made the payments and the payments fell within a prescribed category, namely “fees charged by a school or preschool for [the] child”: subregulation19(b) of the Child Support (Registration and Collection) Regulations 2018.

7. Section 71D of the Act states that a decision-maker may refuse to credit a payment as a non-agency payment “if satisfied that, in the circumstances of the particular case, the amount ought not be credited.”

8. The Child Support (Assessment) Act 1989 provides for a departure from the administrative assessment in certain circumstances. At the hearing, both parents referred to a departure decision that had been previously been made by the CSA. Neither parent could recall the details of the departure decision, and the CSA has not referred to it, or included a copy of it, in the hearing papers, but both parents agreed that the departure decision had reduced Mr Carey’s rate of child support payable — possibly for 2018 and 2019 — on the basis that he had been paying the school fees during those years. It appears that when the departure decision ended, neither parent lodged another departure application and Mr Carey continued to pay the children’s school fees in addition to his administratively assessed rate of child support payable.

9. During the course of the hearing, both parents raised issues that would normally be addressed via another departure application. On the narrower issue of whether to exercise the discretion contained in section 71D in respect of the two payments in question, Mr Carey ultimately submitted that it would be appropriate for him to be responsible for 75% of the school fees in additional to his administratively assessed rate of child support payable. Ms Ridge submitted that it would not be appropriate for her to contribute to the private school fees because she paid the children’s extra-curricular fees. I note that since 30 July 2020, Mr Carey has been paying over $18,000 per annum in child support to assist Ms Ridge in meeting the children’s ordinary costs, which would normally include in the costs of ordinary extra-curricular activities. During the hearing I noted that Mr Carey’s child support income constituted approximately 85% and Ms Ridge’s child support income constituted approximately 15% of the parents’ combined child support income: page 128 of the hearing papers. I queried whether it might be appropriate for the parents to contribute to the payment of the private school fees accordingly. Both parents opined that that would be unfair.

10. I consider the following matters to be of particular relevance to the exercise of the discretion contained in section 71D:

• Previously, Mr Carey’s rate of child support payable was reduced via a departure decision to take account of the fact that he was paying the children’s private school fees.

• Mr Carey had the option of lodging another departure application in respect of the private school fees that he was paying in 2020, but he did not do so.

• The payment that Mr Carey made in March 2020 could not be credited as a prescribed non‑agency payment because he was recorded as providing at least 14% care for the children when the payment was made.

• At the end of 2020, Mr Carey applied to have three sizable payments which were made in March, August and November 2020 credited as prescribed non-agency payments.

• Mr Carey’s child support income is approximately 85% and Ms Ridge’s child support income is approximately 15% of the parents’ combined child support income.

1. Taking those matters into account, I consider it appropriate to credit 15% of the payments that were made on 18 August 2020 and 11 November 2020, and not credit the other 85% of those two payments. A decision in those terms will be made on the basis that it will constitute a fair distribution of the school fees to 31 December 2020. If Mr Carey wishes to have payments in respect of the 2021 school fees taken into account for child support purposes, he could lodge further applications to have the payments credited as prescribed non-agency payments, but he might prefer to lodge a departure application, which might deal with matters more broadly and for a longer period, and which might avoid the need for ad hoc decisions by different decision-makers from time to time.

DECISIONS

The decisions under review are varied so that, in respect of the payments of $1,490.50 on 18 August 2020 and $1,565.00 on 11 November 2020, 15% of the payments are credited as prescribed non-agency payments pursuant to section 71C of the Child Support (Registration and Collection) Act 1988 and 85% of the payments are not credited as prescribed non-agency payments pursuant to section 71D of the Child Support (Registration and Collection) Act 1988.