Cherrill and Lillard (Child support)
[2024] ARTA 428
•12 November 2024
Cherrill and Lillard (Child support) [2024] ARTA 428 (12 November 2024)
Applicant: Mr Cherrill
Respondent: Child Support Registrar
Other Party: Ms Lillard
Tribunal Number: 2024/MC027671
Tribunal: General Member R Prasad
Place:Sydney
Date:12 November 2024
Decision:The Tribunal affirms the decision under review.
CATCHWORDS
CHILD SUPPORT – non-agency payments – mutual intention evidenced by mother’s lawyer’s letter – private agreement and no enforceable maintenance liability at time of payment – decision on care percentage given in separate decision – decision under review affirmed
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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.
Statement of Reasons
BACKGROUND
Mr Cherrill (the father) and Ms Lillard (the mother) are the parents of two children, aged 14 and 10 years old. A child support case was registered with Services Australia – Child Support (Child Support) on 18 February 2016. The Child Support records indicate that effective from 4 March 2023, the father has had 100% care of the older child and the mother has had 100% care of the younger child.[1] The father is required to pay child support in respect of the children.
[1] I note that the hearing also dealt with the care percentage in relation to the older child (2024/MC027784); however, I will make a separate decision in relation to care and will only deal with the non-agency payments here.
The father has made eight payments totalling $5,827.71 directly to the mother and on 1 November 2023, applied to Child Support for the payments to be credited towards his child support liability. In support of his application, the father provided a submission detailing when the payments were made and the amount of each payment.
On 4 December 2023, the mother advised Child Support that she did not agree with the father’s application, stating that the dates were incorrect, some of the payments were never received, the payments were definitely not in lieu of child support, and were not made by mutual intent. Child Support decided not to credit any of the payments as non-agency payments. The father objected to the decision on 21 December 2023, providing a copy of his bank statement and a letter from the mother’s lawyers dated 30 October 2023 (the lawyer’s letter).
On 16 February 2024, Child Support partly allowed the father’s objection and accepted some of the payments totalling $4,868.53 as non-agency payments (the objection decision).
On 18 March 2024, the father sought review of the objection decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the AAT).
The matter was heard on 23 September 2024. The Child Support Registrar elected not to be represented at the hearing but provided documentation (folios 1 to 388). The father appeared by MS Teams audio and provided documentation after the hearing (folios B1 to B14), as did the mother (folios A1 to A10). I note I only accepted those documents that were relevant to the decision under review.
From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
ISSUE
The issue before me is whether the payments totalling $5,827.71 can be considered to be non-agency payments and be credited against the father’s child support liability.
CONSIDERATION
What is required?
The Child Support (Registration and Collection) Act 1988 (the Act) allows payments by a payer of a child support liability to be made in lieu of the liability. These payments are known as non-agency payments or prescribed non-agency payments.
Section 71 of the Act provides that if the payee and payer of an enforceable maintenance liability or child support liability mutually agree that a direct payment made to the payee by the payer is a complete or partial satisfaction of the child support liability, the amount can be credited against the liability as a non‑agency payment. Section 4 provides that “enforceable maintenance liability” means a registered maintenance liability that is enforceable under the Act. Section 17 states that a “registered maintenance liability” includes a liability of a parent to pay for the maintenance of a child and it is a collection agency maintenance liability.
Section 71D of the Act provides that consideration be given to whether there are circumstances to suggest that the payment should not be credited.
What information has been provided?
The father’s non-agency payment application states that he made the following payments to the mother under the private collect arrangements of a binding financial agreement:
| Date | Amount |
| 28 February 2023 | $959.18 |
| 31 March 2023 | $959.18 |
| 1 May 2023 | $959.18 |
| 31 May 2023 | $959.18 |
| 30 June 2023 | $1,024.83 |
| 31 July 2023 | $666.50 |
| 31 August 2023 | $169.46 |
| 2 October 2023 | $130.20 |
In his application for review, the father stated that he had paid the child support amount of $959.18, which was not accepted to be a non-agency payment, on 28 February 2023 in advance for the month of March 2023 in accordance with paragraph 5 of the binding child support agreement dated 5 December 2018 (the agreement). Further, Child Support has refused to credit any child support payments made prior to 5 March 2023 as the payments pre-date their involvement; however, Child Support were claiming that he has a debt of $846.39 for the period that they acknowledge he has already paid in full because they claim they have no legal authority to recognise his payment.
At the hearing, the father advised that the parties had a private agreement up to 18 February 2016, when the mother applied to Child Support. The agreement was registered in the Family Court on 5 December 2018, and private collection continued. When he notified Child Support that he had care of the older child, Child Support started collecting child maintenance. The mother advised that there was no active case previously and the hearing papers indicate that letters were sent to the parties on 24 October 2023 advising that Child Support had accepted the mother’s application to collect ongoing child support payments from 5 March 2023.
The mother advised that she has not agreed with any of the payments by the father to be in lieu of child support payments. She asserted that, among other things, while the father paid child support, the agreement still provided that she pay for school fees, camp fees, books, bags and uniforms as well as private health insurance. She stated that the father stopped paying child support and that was why she applied for Child Support to collect, which were small amounts until the agreement was registered. After the hearing, the mother provided submissions and supporting documents showing the payments she has made. The father also provided submissions and documents regarding these payments.
The father advised that Child Support papers for the decision regarding the care percentage of the older child (2024/MC027784) include the agreement, and wished that I take that into consideration. In particular, he noted that paragraph 10 of the agreement stated that the mother would be responsible for all other costs associated with the children. The agreement provides, among other things, that:
a. the father would pay periodic child support to the mother of $875 per child per month, with the amount indexed on 1 July each year from July 2019, on the first day of each month by direct deposit to the mother’s nominated account;[2]
b. the father pay the older child’s school fees for 2018 and any areas owing;[3]
c. the parties contribute to half of any major medical expenses for the children;[4]
d. the mother would be responsible for the remainder of the children’s education expenses, extra-curricular activities, school fees and health insurance premiums.
[2] Paragraphs 5 and 6 of the agreement.
[3] Paragraph 7 of the agreement.
[4] Paragraph 8 of the agreement.
The lawyer’s letter stated that the parties had entered into the agreement on 5 December 2018, which provided that the father had to pay the mother $1,024.83 each month for the younger child in the 2023-24 financial year and that in the 2022-23 financial year, he was to pay $959.18 for both children. The father had made five payments of $1,918.36 from July 2022 to November 2022, a payment of $1,786.90 in December 2022, a payment of $1,848.36 in January 2023, a payment of $0.16 in February 2023, and a payment of $959.18 in March 2023 as child support for both children. Since April 2023, the father had paid the mother $959.18 from April to June 2023, $1,024.83 in July 2023, $666.50 in August 2023 and $169.46 in September 2023 as child support payments for the younger child. The letter stated that the father was in deficit of $131.46 in December 2022, $70 in January 2023, $1,918.20 in February 2023, $959.18 in March 2023 and $497.04 in September 2023.
Can the payments be considered to be non-agency payments?
The father has made an application to credit payments totalling $5,827.71 for payments he made directly to the mother in accordance with the agreement. While the mother disputes that the payments were in lieu of child support, the lawyer’s letter indicates that the father made payments in respect of the agreement. I am therefore satisfied that there was mutual intention by the parties for the payments to be in satisfaction of the child support liability.
I must also be satisfied that the payments were in respect of an enforceable maintenance liability. Section 4 of the Act provides that “enforceable maintenance liability” means a registered maintenance liability that is enforceable under the Act. The parties had a private collection arrangement until the mother elected for Child Support to collect payments from 5 March 2023. Accordingly, the collection of child maintenance by Child Support did not commence until this date and accordingly the enforceable maintenance liability occurred from the date of collection.
As the payment of $959.18 made on 28 February 2023 was made prior to the enforceable maintenance liability, I am unable to be satisfied that the requirements of section 71 of the Act are met in relation to it.
However, the remaining payments were made in respect of the enforceable maintenance liability. I therefore determine that the remaining payments totalling $4,868.53 made by the father do satisfy the requirements of section 71 of the Act and can be credited towards his child support liability as non-agency payments. As these payments are to be credited, I must consider the requirements of section 71D.
The mother has asserted that the amounts ought not be credited as she has also made payments towards the children. I have considered the types of circumstances where I can refuse to credit an amount as set out at 5.3.1 of the Child Support Guide (the Guide), and the circumstances described include payments obtained through coercion or harassment, or expenses claimed that have already been taken into account in a change of assessment decision or in addition to a liability specified in an agreement. I note the Tribunal can have regard to the Guide, though it is not bound to follow it.[5] In G v Minister for Immigration and Border Protection [2018] FCA 1229, the Federal Court observed that it is clear from earlier authorities that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task. I consider it appropriate to have regard to the Guide and I am unable to be satisfied that the circumstances raised by the mother, suggest the amounts paid from 5 March 2023 ought not to be credited. Accordingly, I do not consider that any amount of the payments totalling $4,868.53 should be refused to be credited in accordance with section 71D of the Act.
[5] Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634.
DECISION
The Tribunal affirms the decision under review.
| Date of hearing: | Monday, 23 September 2024 |
| Representative for the Applicant: | Self represented |
| Representative for the Other party: | Self represented |
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