Dengale and Chaatouf (Child support)

[2024] AATA 3244

Dengale and Chaatouf (Child support) [2024] AATA 3244 (10 July 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/SC027742

APPLICANT:  Mr Dengale

OTHER PARTIES:  Child Support Registrar

Mrs Chaatouf

TRIBUNAL:Member M Martellotta

DECISION DATE:  10 July 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS
CHILD SUPPORT – non-agency payment – father’s payments directly to mother before active child support case restarted – no direct communication or intention by mother – payments not made for any prescribed purpose – 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 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. This review is about whether all or part of an amount of $3,750 is to be credited as non-agency or prescribed non-agency payments against Mr Dengale’s child support liability.

2. On 20 July 2023 Mr Dengale asked Services Australia - Child Support to credit payments he said had been made directly to Mrs Chaatouf. The application was refused on 3 August 2023. Mr Dengale objected. On 2 March 2024 Child Support disallowed the objection.

3. Mr Dengale lodged an application with the Tribunal on 5 April 2024. The Tribunal held a hearing on 10 July 2024.  Mr Dengale appeared and provided affirmed evidence and presented submissions.

4. Mrs Chaatouf did not appear at the hearing. At the time and date fixed for hearing the Tribunal made several unsuccessful attempts to contact Mrs Chaatouf.[1] The Tribunal notes that Mrs Chaatouf was sent a notice of the hearing date and time on 19 June 2024, and she was sent a hearing reminder on 9 July 2024. The Tribunal was satisfied that Mrs Chaatouf was provided notice of the hearing. The Tribunal decided to proceed to hear and decide the application in her absence.[2]

   [1] Mrs Chaatouf had contacted the Registry on an earlier occasion to inquire about the application.

   [2] See the AAT Child Support Review Practice Directions – item 29. Paragraph 40(1)(b) Administration Appeals Tribunal Act 1975.

5. Other evidence considered by the Tribunal included hearing papers prepared and distributed by Child Support (85 pages and C1).

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 Child Support with the aid of the Child Support Guide (the Guide). The Tribunal may be guided by policy but is not bound to follow it.[3] The Federal Court[4] has observed that in the absence of any contrary statutory indication, 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. A lawful approach allows the adoption of appropriate policy as a guide but not so as to control the making of the decision and the Tribunal adopts that approach.

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

   [4] G v MIBP [2018] FCA 1229.

3. The issue which arises in this case is whether payments made by Mr Dengale are to be credited against his child support liability.

CONSIDERATION OF EVIDENCE AND STATUTORY PROVISIONS

1. The Act provides that certain direct payments made by a payer can be credited against their child support liability.

2. Relevant to this matter, paragraph 71(1)(a) of the Act refers to the payee of an enforceable maintenance liability who receives from the payer an amount intended by both payer and payee to be paid in complete or partial satisfaction of an amount payable under the liability in relation to the child support enforcement period.  These payments are referred to as non-agency payments.

3. Section 71C of the Act and Regulation 19 of the Regulations allow 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 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”. Such payments must be of the types specified under the Regulations.

4. The Child Support Registrar (and on review, the Tribunal) may refuse to credit amounts under section 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. An enforceable maintenance liability is a registered maintenance liability enforceable under the Act.[5] When a child assessment is made, it gives rise to a registerable maintenance liability. A payee may elect not have the liability registered at the time of making the application (private collect) but they can later elect to have it registered (Child Support collect).

   [5] Section 4 of the Act

6. On 3 August 2023 Child Support decided not to credit the following payments against Mr Dengale’s child support liability:

Date of payment	Type	Amount	Date of payment	Type	Amount
11/02/2022	Direct Payment	$200	06/05/2022	Direct Payment	$200
25/2/2022	Direct Payment	$200	13/05/2022	Direct Payment	$200
04/03/200	Direct Payment	$200	20/05/2022	Direct Payment	$200
11/03/2022	Direct Payment	$200	27/05/2022	Direct Payment	$200
21/03/2022	Direct Payment	$150	03/06/2022	Direct Payment	$200
25/03/2022	Direct Payment	$150	10/06/2022	Direct Payment	$350
01/04/2022	Direct Payment	$200	17/06/2022	Direct Payment	$200
08/04/2022	Direct Payment	$200	24/06/2022	Direct Payment	$200
22/04/2022	Direct Payment	$150
29/04/2022	Direct Payment	$200
03/05/2022	Direct Payment	$150

1. Mr Dengale submitted that the payments he made ought to be credited against his child support liability.  At hearing Mr Dengale provided the following evidence:

   a)Previously there was an “active” registered maintenance liability whereby Child Support was collecting.

   b)In mid-2021 Mrs Chaatouf without warning travelled to Africa and left the children in his care.

   c)Mrs Chaatouf returned and stayed at the former matrimonial home before leaving with the children in July 2021. He has not directly spoken to Mrs Chaatouf since then.

   d)From July 2021 until July 2022 there was no “active” child support case. Child Support was not collecting on behalf of Mrs Chaatouf.

   e)During that period, he decided to pay Mrs Chaatouf directly. At first, he made cash payments but after speaking with a friend on their advice he started making the deposits into her bank account.

   f)It was his intention that those payments were for child support.

   g)In July 2022 he was contacted by Child Support who advised that they were resuming collection on behalf of the payee.

Were direct payments made by Mr Dengale to Mrs Chaatouf?

1. Mr Dengale submits that he made the payments directly to Mrs Chaatouf by depositing the amounts into her bank account. 

2. According to statements made to Child Support, Mrs Chaatouf stated that she had no knowledge about the payments. She and Mr Dengale do not communicate. She understands from their children that they will ask their father for money.  Mrs Chaatouf did not confirm that the deposits were received into her account, however bank receipts provided by Mr Dengale indicate that he paid the deposits into an account ending in the number XXX3169 which he states to be Mrs Chaatouf’s bank account.

Mutual agreement

1. In response to questions asked by the Tribunal Mr Dengale stated that he and Mrs Chaatouf did not specifically communicate about the nature of the payments he was making.  Mr Dengale submitted that a mutual intention should be implied because Mrs Chaatouf gave him her bank account details, he was making regular payments and Mrs Chaatouf did not return the money to him and has used the money.  Mr Dengale refuted suggestions made by Mrs Chaatouf to Child Support that the payments he made were at the children’s request. He said that if the children ask him for money or for something he always does that separately to his child support payments.

2. Mrs Chaatouf’s statement to Child Support that she and Mr Dengale did not communicate and did not discuss the purpose of the deposits he made into her bank account is consistent with Mr Dengale’s evidence at hearing and with statements he made to Child Support.

Enforceable maintenance liability

1. As the Tribunal understands his evidence, Mr Dengale states that he was making the payments to Mrs Chaatouf under a private arrangement which he said was in place between July 2021 until July 2022 which he wants credited.  Contrary to Mr Dengale’s evidence, the record does not reflect that at the time of payments that there was no enforceable maintenance liability in place[6]. The Child Support records also confirm that the children of the assessment were at the time of payments in her 100% care.

   [6] This was further confirmed by Child Support.

2. As noted, if Mr Dengale wants payments credited then there needs to be an enforceable maintenance liability in place at the time of the payments.

3. According to the Child Support records the start date of the liability was 3 February 2016. An active case was registered as Child Support collect from 14 November 2017. This meant that an amount payable under the assessment was a debt owed to the Commonwealth (Child Support).[7] These payments are usually paid or discharged by direct payments to Child Support but as noted, the non-agency payment provisions allow for certain direct payments made to a payee (or third party) to be credited against the amount payable despite section 30. As noted in the case of Strauss and Strauss:[8]

   It is clear that [sections 71 and 71A] relate only to payments which have been made either to the other party or to a third party in respect of a maintenance liability which is at that time registered under the Registration Act.

   [7] Section 30 of the Act provides that when a registrable maintenance liability is registered then any amount payable is a debt owed to the Commonwealth.

4. This is also not a case which on its fact concerns an application for collection of arrears  or unpaid amounts during a specified period.[9]

Conclusions

[9] Section 28A.

1. The Tribunal is satisfied and finds that the amounts claimed by Mr Dengale were paid into Mrs Chaatouf’s bank account. The Tribunal is also satisfied that at the time the payments were received there was an enforceable maintenance liability registered since 14 November 2017. The Tribunal, however, concludes that the amounts received were not intended by both Mrs Chaatouf and Mr Dengale to be paid in complete or partial satisfaction of an amount payable under the liability, in relation to the child support enforcement period.

2. In reaching this conclusion, the Tribunal notes that it is common ground that Mr Dengale and Mrs Chaatouf did not directly communicate about the purpose of the payments being made by Mr Dengale.  Mr Dengale stated he did not discuss this arrangement with Mrs Chaatouf, but it was his personal intention that the payments were to be treated as child support payments. Whilst Mr Dengale asks the Tribunal to infer mutual intention, the Tribunal is not satisfied that such an inference is possible given the evidence that neither party discussed the purpose of the payments, which were  unilaterally made by Mr Dengale.

3. The Tribunal concludes and finds that there was no mutual intention that the payments were to be lieu of child support. This means that section 71 of the Act has no application.

Any other basis for the payments to be credited

1. The Tribunal further considered whether there was any basis for the payments to be considered prescribed non-agency payments. The payment must be a payment of the kind specified in section 19 of the Regulations (paragraph 71C(1)(b) of the Act). Section 19 specifies the following payments:

   a)child care costs for the child who is the subject of the enforceable maintenance liability;

   b)fees charged by a school or preschool for that child;

   c)amounts payable for uniforms and books required by a school or preschool for that child;

   d)fees for essential medical and dental services for that child;

   e)the payee’s share of amounts payable for rent or a security bond for the payee’s home;

   f)the payee’s share of amounts payable for utilities, rates or body corporate charges for the payee’s home;

   g)the payee’s share of repayments on a loan that financed the payee’s home;

   h)costs to the payee of obtaining and running a motor vehicle, including repairs and standing costs.

2. Mr Dengale confirmed at hearing that the payments were not made for any prescribed purpose. This means that section 71C of the Act cannot have any application.

DECISION

The decision under review is affirmed.

[8] [1998] FamCA 2