Cox and Finch (Child support)

[2019] AATA 3837

Cox and Finch (Child support) [2019] AATA 3837 (18 June 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC016257

APPLICANT:  Mr Cox

OTHER PARTIES:  Child Support Registrar

Ms Finch

TRIBUNAL:Member F Hewson

DECISION DATE:  18 June 2019

CATCHWORDS

CHILD SUPPORT – opt-in arrears – whether there were unpaid amounts in the specified period – application for collection of unpaid amounts should be accepted – 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.

1. The decision of the Tribunal and the reasons for the decision were delivered orally on 18 June 2019.

2. The following paragraphs are the reasons for the Tribunal’s decision.

Reasons for decision

1. This review is about the whether the correct decision was made to accept Ms Finch’s application for collection of child support assessment and whether any arrears of child support are owed for the period before the application was accepted.

2. Mr Cox and Ms Finch are the parents of children in respect of whom there is a child support assessment.  Ms Finch applied to the Registrar for the child support to be collected on her behalf and, on16 January 2019, the application was accepted. The Registrar also decided that Mr Cox owed arrears of $670.75 for the period from 17 December 2018 to 14 January 2019.

3. Mr Cox lodged an objection to the decision and his objection was allowed by an objections officer on 20 March 2019. The objections officer was satisfied that Mr Cox made payments during the arrears period, which the parties agreed were for the benefit of the children and should be credited as child support. That meant no arrears of child support were owed by Mr Cox.

4. On 3 April 2019, Mr Cox lodged an application for review by this tribunal. The application was heard on 18 June 2019. The tribunal spoke to Mr Cox by conference telephone. Ms Finch also spoke to the tribunal by conference telephone. The Child Support Registrar did not attend the hearing. As well as the evidence of Mr Cox and Ms Finch, the tribunal also had regard to documents provided by the Department of Human Services – Child Support (the Department), a copy of which was also given to the parties.

Consideration

1. At the hearing, Mr Cox confirmed that he was not seeking review of the decision to accept Ms Finch’s application for collection of the child support liability by the Registrar. He indicated that he was seeking credit for payments, as set out in the documents at pages 11, 12 and 51.

2. Ms Finch agreed that no arrears of child support are owed for the period from 17 December 2018 to 14 January 2019. She disagreed that some of the payments referred to by Mr Cox, such as for make-up, should be regarded as in lieu of child support.

3. A payee may apply under subsection 25(1) of the Child Support (Registration and Collection) Act 1988 (the Act) for registration of a registrable maintenance liability that was not registered for collection. An application under subsection 25(1) is sometimes referred to by the Department as an application to "opt-in" for collection of child support payments by the Registrar. Where the application to opt-in is the first such application made by the payee, as in this case, the Registrar must accept the application.

10.  A payee may also apply under subsection 28A(3) of the Act for any unpaid amounts payable under the liability in relation to a specified period prior to the registration of the liability for collection (commonly a three-month period but not more than nine months) to be treated as arrears amounts. Where the Registrar grants an application under subsection 28A(3), the unpaid amounts become child support debts payable to the Registrar, despite having accrued during a period when the liability was not registered for collection (there is no provision for payments made in excess of the liability prior to registration for collection to be credited against any future liability).

11.  In this case, the original decision maker decided that Mr Cox owed arrears of $670.75 for the period from 17 December 2018 to 14 January 2019. This decision was set-aside by the objections officer who decided that Mr Cox made payments during the arrears period which both parents agreed were for the benefit of the children and should be credited as being in lieu of child support. This meant that no arrears were owed by Mr Cox for the arrears period. I am satisfied, having regard to the evidence before me, that it is not within my power to make a decision more favourable to Mr Cox.