Chesney and Adlard (Child support)

[2021] AATA 2423

Chesney and Adlard (Child support) [2021] AATA 2423 (11 June 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC021151

APPLICANT:  Ms Chesney

OTHER PARTIES:  Child Support Registrar

Mr Adlard

TRIBUNAL:Member P Jensen

DECISION DATE:  11 June 2021

DECISION:

The decision under review is set aside and, in substitution, the Tribunal decides that there were no unpaid amounts of child support payable in respect of the period from 8 September 2020 to 7 December 2020.

CATCHWORDS

CHILD SUPPORT – opt-in arrears – whether there were unpaid amounts – application for collection of unpaid amounts should be not accepted – decision under review set aside and substituted

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 DECISION

1. Ms Chesney and Mr Adlard are the parents of four children. It appears that a child support case was registered in 2010 and it subsequently ended when the parents reconciled. Another child support case was registered in July 2017 and it remains in force.

2. The payment of child support can be a private matter between the parents. Alternatively it can be registered for collection by Services Australia - Child Support (“the CSA”), in which case it becomes a debt that is owed to the CSA.

3. In July 2017, Ms Chesney elected to collect the child support payable privately. In October 2017 she elected to have the CSA collect the ongoing child support payable. She also successfully applied to have the CSA collect “any unpaid amounts [of child support] payable” in respect of the preceding three months pursuant to section 28A of the Child Support (Registration and Collection) Act 1988 (“the Act”).

4. In March 2019, Ms Chesney elected to collect the child support privately. The CSA noted (with minor typographical errors in the original):

   [Ms Chesney] advise that both parties have come to an agreement that [Mr Adlard] will conver her rent cost as child support payments. [Ms Chesney] advise that she had spoken wiht [Mr Adlard] and she would like to opt out of collection as [Mr Adlard] have agreed to pay her rent instead.

5. The CSA did not contact Mr Adlard about the agreement.

6. On 8 December 2020, Ms Chesney made applications to have the CSA collect the ongoing child support payable and to have the CSA collect the child support arrears in respect of the preceding three months pursuant to section 28A of the Act. On 11 December 2020 the CSA made two decisions:

   ·   a decision to collect the ongoing child support payable from 8 December 2020; and

   ·   a decision to collect child support arrears of $8,443.47 in respect of the period from 8 September 2020 to 7 December 2020 (“the period in question”).

7. Mr Adlard promptly objected to the second decision. An objections officer allowed his objection. The objections officer calculated that Mr Adlard had been required to pay $11,264.46 in child support during the period in question and he had paid $10,273.06, leaving a balance owing of $991.40. The objections officer decided to collect that amount. Ms Chesney promptly applied to the Tribunal for further review. I heard the matter on 11 June 2021. Ms Chesney and Mr Adlard gave sworn evidence by conference phone.

8. Ms Chesney’s evidence raised a number of potential issues in respect of her general dealings with Services Australia, which includes the CSA and Centrelink. She said that she and Mr Adlard reconciled in or around September 2019 and they remained partnered until 8 December 2020. She acknowledged that she did not inform the CSA or Centrelink of the reconciliation, and she had continued to receive parenting payment at the higher single rate rather than the lower partnered rate. On 8 December 2020 the CSA noted that “[Ms Chesney] advised that the parents did not reconcile during the private collect period”: page 71 of the hearing papers. In any event, as I noted during the hearing, the current application for review does not involve a review of Ms Chesney’s general dealings with Services Australia. I am therefore not considering whether a child support terminating event occurred as a result of a reconciliation[1] or whether Ms Chesney owes a parenting payment debt to the Commonwealth.[2] The CSA has not made a decision to terminate the child support case, and the current application for review is confined to the question of the arrears owing, if any, in respect of the period in question.

   [1]See subsection 12(5) of the Child Support (Assessment) Act 1989.

   [2]See sections 1068A, 1068B and 1223 of the Social Security Act 1991.

9. Mr Adlard stated that the parents most recently separated in or around September 2016, and they have remained separated. The effect of Mr Adlard’s evidence was that the CSA’s file note which is reproduced at paragraph 4, above, does not accurately reflect the agreement that the parents had reached; they had agreed that he would pay Ms Chesney’s necessary costs, including her accommodation costs and the children’s school costs, and such payments would fulfill his child support obligations. The agreement was not reduced to writing and Mr Adlard’s evidence suggested that it was a rather ill-defined agreement. Nevertheless, having heard from both parents, I accept that such an agreement was reached and it remained in force up until Ms Chesney applied to have the CSA resume its collection of the child support payable.

10. During the period in question, Ms Chesney was living in a house in Queensland which was owned by Mr Adlard. (Notwithstanding Ms Chesney’s statement that she and Mr Adlard were partnered, she also said that Mr Adlard was living in New South Wales.) There is no dispute that the minimum home loan repayments in respect of the house in which she was living were $1,878 per month, which equates to $5,634 during the period in question.[3]

    [3]I have ignored the cents for the purposes of these calculations.

11. Ms Chesney agreed that Mr Adlard paid the water, electricity, gas and internet fees in respect of the house in which she was living. The water fees were approximately $430 per quarter: page 160 of the hearing papers. The electricity fees were approximately $275 per quarter: page 167 of the hearing papers. The hearing papers do not include any evidence of the gas and internet fees.

12. During the hearing the parents agreed that the children’s 2020 school fees were $7,220, of which $1,805 was referrable to the period in question.

13. Mr Adlard also made a number of payments directly to Ms Chesney during the period in question. The payments totalled $5,402.

14. In summary, Mr Adlard paid more than $5,634 + $430 + $275 + $1,805 + $5,402 = $13,546 in respect of the period in question pursuant to the parents’ agreement concerning the way in which he would meet his child support obligations. He paid more than the administratively assessed amount of child support payable in respect of the period in question, which was $11,264. When Ms Chesney applied to have the CSA collect the ongoing child support payable, there were no child support arrears owing in respect of the preceding three months.

DECISION

The decision under review is set aside and, in substitution, the Tribunal decides that there were no unpaid amounts of child support payable in respect of the period from 8 September 2020 to 7 December 2020.