Crowe and Dallas (Child support)

[2020] AATA 1756

Crowe and Dallas (Child support) [2020] AATA 1756 (24 January 2020)

DECISION  AND REASONS FOR DECISION

DIVISION:  Social Services & Child Support Division

REVIEW NUMBER:  2019/SC017537

APPLICANT:  Ms Crowe

OTHERPARTIES:  Child Support Registrar Mr Dallas

TRIBUNAL:  Member S Letch

DECISION DATE:  24 January 2020

DECISION:

The decision under review is varied so that the amount of $3,094.05 is to be credited as a non-agency payment in respect of Mr Dallas’child support liability.

CATCHWORDS

CHILD SUPPORT – non-agency payment - whether payment made in lieu of child support - intention of both parents – a payment was credited twice - 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 DECISION

1. This matter concerns a decision by an objections officer of the Child Support Agency (CSA) on 25 September 2019. Earlier, on 10 July 2019, the CSA decided to accept Mr Dallas’ claim for “non-agency payments” (NAPs) to be credited against his child support liability in the total sum of $3,360.

1. On objection, the CSA decided the total sum was, in fact, $3,920. This was despite Ms Crowe observing that an amount of $825.95 had earlier been accepted in 18 April 2018, and that Mr Dallas was effectively claiming some of the payments twice. The objections officer dealt with that issue by advising Ms Crowe this was a separate decision for which there were separate objection rights (in the result, the Tribunal disagreed with that approach; in the Tribunal’s assessment, the CSA ought not have “double counted” amounts in the second decision when deciding with the quantum of the NAPs to be credited in July 2019).

1. The Tribunal conducted a hearing on 24 January 2020. Ms Crowe participated by conference telephone; the Tribunal received no contact from Mr Dallas and was not able to contact him at the time of the scheduled hearing, which proceeded in his absence.

1. Ms Crowe told the Tribunal that she was effectively seeking a decision from the Tribunal which retrospectively changed the “enforceable period” (where the CSA was collecting on her behalf) during which Mr Dallas paid the NAPs to a “non-enforceable” or “private collection” period. This would have the effect of Mr Dallas not being able to claim NAPs against his child support liability as such payments must be made during an enforceable period.

1. Ms Crowe did not dispute that she had asked the CSA to collect child support for the period 28 February 2017 to 15 July 2018. However, she indicated the CSA had not properly advised her about the issues which might arise, including Mr Dallas’ option to claim NAPs. However, the fact of Mr Dallas being the subject of an enforceable maintenance liability for the period 28 February 2017 to 15 July 2018 cannot be undone.

1. A payment can be credited as a non-agency payment pursuant to section 71 of the Child Support (Registration and Collection) Act 1988 (the Act) if both parents intended the payment to be credited against the payer’s child support liability and certain other requirements are met.

1. It not being in dispute that the period Mr Dallas made payments directly to Ms Crowe; she does not dispute that they were intended to meet Mr Dallas’ ongoing child support liability. There is no basis under section 71D of the Act for the payments to be disregarded.

1. As alluded to earlier, the Tribunal finds that the CSA has effectively “double credited” instalments paid by Mr Dallas in the total sum of $825.95 which, after crediting in April 2018, were credited again in July 2019. The Tribunal will therefore vary the sum to be credited as non-agency payments to $3,094.05 in respect of the decision under review.

1. As the Tribunal has reached a different conclusion to the objections officer, the decision will be varied.

DECISION

The decision under review is varied so that the amount of $3,094.05 is to be credited as a non-agency payment in respect of Mr Dallas’ child support liability.