Carwardine and Copleston (Child support)

[2021] AATA 4492

Carwardine and Copleston (Child support) [2021] AATA 4492 (30 September 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC022023

APPLICANT:  Miss Carwardine

OTHER PARTIES:  Child Support Registrar

Mr Copleston

TRIBUNAL:Member M Martellotta

DECISION DATE:  30 September 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – non-agency payment – prescribed payment for orthodontic treatment – 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. Miss Carwardine and Mr Copleston are the parents of a child for whom there has been a child support case registered since 21 January 2000.

2. This review concerns the question of whether an amount of $5,240 paid for dental expenses is to be credited as a prescribed non-agency payment. (PNAP).

3. On 21 April 2021, Services Australia - Child Support (the Agency) decided to credit a payment of $5,240 made by Mr Copleston for orthodontic treatment received by the child. Miss Carwardine’s objection to that decision was disallowed on 15 July 2021.

4. Miss Carwardine made an application to the tribunal for review of that decision.  On 30 September 2021, Miss Carwardine and Mr Copleston participated in a hearing conducted by conference telephone.  They each provided evidence on affirmation. The Agency provided 56 pages of documents relevant to their decision.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (the Act) and the Child Support (Registration and Collection) Regulations 2018 (the Regulations).

2. Child support legislation is interpreted by the Agency with the aid of the Child Support Guide (the Guide).  The tribunal is not bound by law to apply the policy as set out in the Guide, but, provided the policy is consistent with the legislation, it is required to have regard to it and in the ordinary course follow it.[1] 

   [1] See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

3. The issue which arises in this case is whether payments for orthodontic treatment made by Mr Copleston are to be credited as a PNAP against his child support liability.

CONSIDERATION

1. Provisions of the Act provide that certain direct payments made by a payer can be credited against their child support liability. 

2. Section 71C of the Act and regulation 19 of the Regulations allows the Agency to credit certain payments towards a payer’s child support liability regardless of the intention of the parents at the time the payment was made (that is, regardless of whether or not the payments were intended to be in lieu of child support), except if, at the time the payment was made (emphasis added) the payer had at least regular care of any of the children to whom the relevant administrative assessment relates to. The Agency refers to these payments as “prescribed non-agency payments”. 

3. Such payments must be of the types specified under the Regulations. The Regulations provide that fees for essential medical and dental services for that child[2]as a specified payment.

   [2] Reg 19(d)

4. The Child Support Registrar (and on review the tribunal) may refuse to credit amounts under sections 71A or 71C of the Act if satisfied that, in the circumstances of the particular case, the amount ought not to be credited (section 71D of the Act).

5. Based upon the Agency record which is not in contention the tribunal finds that:

   a)The Agency has registered a child support case for agency collection since 21 January 2000.

   b)From 13 July 2019 until 23 March 2020 the child was in Mr Copleston’s 100% care and Miss Carwardine’s 0% care.

   c)From 24 March 2020 the child has been in Miss Carwardine’s 100% care and Mr Copleston’s 0% care.

6. At hearing the following was not in contention and the tribunal finds that the child received orthodontic treatment for a period commencing on 24 March 2020. The following payments were made by Mr Copleston on the following dates:

Date payment made	Amount $
24 March 2020	3,040
12 November 2020	220
11 January 2020	440
13 January 2021	500
17 February 2021	600
19 March 2021	440
Total	5,240

1. Miss Carwardine submits that the decision made by the Agency is the wrong decision because:

   a)She never agreed to the treatment.

   b)The treatment received by the child was not essential.  If it was, she would have arranged for the child to have received the treatment under the public health system.

   c)At the time the treatment plan was entered, Mr Copleston was the full-time carer of the child and as such section 71C of the Act has no application.

   d)According to her written submissions Miss Carwardine states that according to her research a malocclusion Class 2 Division II would not interfere with any bodily function and so is not essential.

2. Mr Copleston submits that the decision by the Agency to credit the amount paid by him was the right decision because:

   a)When the child came into his care he did not know where Miss Carwardine was so he could not consult with her about the treatment and in any event he has since been unable to discuss the matter with her due to their poor relationship.

   b)The child when in his care was complaining of pain whilst eating.  He took her to a dentist who referred her for orthodontic review.  The advice was that the child had an overbite which required braces, and this was essential for her wellbeing.

   c)The child’s mental wellbeing was also affected by the overbite and the treatment was not just for cosmetic purposes as stated by Miss Carwardine but was essential.

3. The tribunal contacted [Dr A] who is the orthodontist who treated the child.  [Dr A] confirmed that whilst there were aesthetic benefits, the treatment provided was not cosmetic but was for functional and corrective reasons to treat an overbite.

4. The tribunal is satisfied that the orthodontic treatment was essential and not just for cosmetic purposes. The tribunal is also satisfied that at the time Mr Copleston made the various payments for the treatment, the child was in Miss Carwardine’s 100% care.  This means that at the time payments were made, Mr Copleston (the payer) did not have at least regular care of the child. The tribunal was otherwise satisfied that the other exemptions to the application of PNAP do not have application in this matter.[3]

   [3] See general commentary at 5.3.1 of the Guide.

5. In terms of the discretion to refuse to credit an amount, the tribunal was guided by the relevant policy of the Agency and concluded that the circumstances of this case did not warrant exercise of the discretion.

DECISION

The decision under review is affirmed.