Dewdney and Dewdney (Child support)

[2021] AATA 1533

Dewdney and Dewdney (Child support) [2021] AATA 1533 (15 April 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/PC020628

APPLICANT:  Mrs Dewdney

OTHER PARTIES:  Child Support Registrar

Mr Dewdney

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  15 April 2021

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the amount of child support payable by Mr Dewdney in the arrears period is $1,804.29.

CATCHWORDS

CHILD SUPPORT – opt-in arrears – calculation of unpaid amounts – 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

BACKGROUND

1. Mrs Dewdney and Mr Dewdney are the parents of [Child 1] (born May 2005), [Child 2] (born May 2008) and [Child 3] (born April 2013). There has been a child support assessment in place since 11 May 2005 and Mr Dewdney is the liable parent under the assessment.

2. On 6 November 2019 Mrs Dewdney applied to the Child Support Agency to recommence the collection of child support and on 2 December 2019 the Child Support Agency made the decision to accept this application effective from 6 November 2019.

3. On 17 December 2019 Mrs Dewdney applied to the Child Support Agency for collection of outstanding child support payments for the period from 5 October 2019 to 5 November 2019.

1. On 20 January 2020 the Child Support Agency made the decision to refuse to accept the application for collection of outstanding child support payments, however, as neither parent was notified of the outcome of this decision it was determined to be invalid.

2. On 4 November 2020 the Child Support Agency accepted Mrs Dewdney’s application for collection of outstanding child support and the decision was made that Mr Dewdney owed $733.48 in unpaid child support for the period from 5 October 2019 to 5 November 2019 (the original decision).

3. On 2 December 2020 Mr Dewdney objected to the arrears decision and on 5 January 2021 the Child Support Agency allowed the objection. A decision was made that Mr Dewdney owed $0 in outstanding child for the period from 5 October 2019 to 5 November 2019 (the objection decision).

4. On 15 January 2021 Dewdney applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

5. The Tribunal conducted a hearing into the application on 15 April 2021. Mrs Dewdney and Mr Dewdney gave evidence on affirmation by conference telephone. The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (342 pages). The Tribunal also received additional information from Mrs Dewdney prior to the hearing and a copy was distributed to the parties (A–A26).

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (the Act).

2. The issue which arises in this case is:

   ·     what is the amount of child support arrears, if any, Mr Dewdney is liable to pay during the period from 5 October 2019 to 5 November 2019?

CONSIDERATION

1. A payee can elect to end the collection of a child support liability under section 38A of the Act. The Child Support Agency must accept an election to end collection and the liability will cease to be enforceable from a specified terminating day.

2. Section 39 of the Act states a payee who made an election under section 38A can reapply at a later time to again have the liability enforced by the Child Support Agency. If the application is made in a specified manner, then it must be granted subject to the satisfaction of the Registrar.

3. If an application made under section 39 of the Act is accepted, the payee may also apply for any unpaid amounts to be treated as arrears amounts and collected by the Child Support Agency (subsection 39A(4)). If the specified period does not exceed three months, the Child Support Agency must grant the payee’s application (subsection 39A(5)).

4. The Tribunal notes that, according to evidence provided by the Child Support Agency, Mrs Dewdney has previously changed the mode of collection. The Tribunal is satisfied that Mrs Dewdney applied in the specified manner for the liability to become enforceable again on 6 November 2019 and this was a subsequent application.

5. Mrs Dewdney told the Tribunal that following separation the parents had maintained a joint bank account and agreed that she could use the account to manage payments towards the mortgage on the family home as well as general living expenses. Mrs Dewdney said as Mr Dewdney was contributing his salary to the joint account any money used that was for her benefit or for the children was to be considered as a credit towards his child support obligation. She said she later decided to apply for the collection of arrears through the Child Support Agency when she thought Mr Dewdney could afford it.

6. Mrs Dewdney said the Child Support Agency had determined that Mr Dewdney would pay only the mortgage on the family home and this would be in complete satisfaction of his child support liability. Mrs Dewdney said this was never the arrangement with Mr Dewdney. Mrs Dewdney submitted that SMS exchanges between her and Mr Dewdney showed that she expected him to pay the arrears but only when he could afford to do so.

7. In a submission to the Tribunal received on 3 February 2021 Mrs Dewdney provided a number of text message exchanges with Mr Dewdney in which they discuss transaction activity in their joint bank account. In one such exchange dated 16 November 2019 about a payment of $108.00 for [insurance] Mrs Dewdney states, “I will transfer money over to put it back in the green, but technically you’ll still owe me. Of course I won’t make you pay when you have no money.” In a further exchange dated 16 December 2019 Mrs Dewdney states, “You technically still owe around $1200 in child support too, which I wasn’t going to bother with, but since you’re rich enough … I don’t see why I should struggle”. Mr Dewdney responds, “I’m not sure where you’re coming from but maybe going through child support might be a better option.”

8. Mrs Dewdney reiterated that the arrangement with Mr Dewdney was that she would consider the full mortgage payments on the family home, where she and the children were living, as a credit towards child support as well as other expenses paid from the joint account. She said she had always believed Mr Dewdney would pay any outstanding child support amount.

9. Mr Dewdney told the Tribunal it was his understanding, as part of a verbal agreement with Mrs Dewdney, that at first he would only pay the mortgage on the family home and no other child support. He acknowledged this changed and the use of the joint bank account by Mrs Dewdney was to be considered as a contribution towards his child support liability.

10. Mr Dewdney argued that, in addition to five mortgage payments made during the arrears period, there were several other payments from the joint bank account that should be credited towards his child support liability. Mr Dewdney said these had been itemised in evidence to the Child Support Agency and totalled $925.56. They included transfers from the joint account for such things as water bills, [insurance], telephone bills and food.

11. The Tribunal notes in evidence an itemised list of payments made from the joint bank account provided by Mr Dewdney to the Child Support Agency on 2 December 2020. The list includes:

    ·     four mortgage payments of $526.91 each made on 4 October 2019, 11 October 2019, 18 October 2019 and 25 October 2019 totalling $2,107.64;

    ·     four payments towards water bills of $40.00 each made on 7 October 2019, 14 October 2019, 21 October 2019 and 28 October 2019 totalling $160.00;

    ·     one payment for [insurance] of $108.34 on 15 October 2019;

    ·     payments to [Mobile phone provider] of $39.99 made on 7 October 2019 and of $85.00 made on 21 October 2019 totalling $124.99;

    ·     PayPal payments made on 7 October 2019, 11 October 2019, 16 October 2019, 21 October 2019 (two), 22 October 2019, 25 October 2019, 29 October 2019 and 4 November 2019 totalling $302.87;

    ·     payments for supermarket shopping on 7 October 2019 for $49.01, 9 October 2019 for $5.60, 10 October 2019 for $221.97 (Mrs Dewdney identified this as shopping), 14 October 2019 for $64.51, 25 October 2019 for $5.50 and 28 October 2019 for $6.70 totalling $353.29;

    ·     payments for fuel on 10 October 2019 and 29 October 2019 totalling $32.84;

    ·     three payments at McDonald’s on 14 October 2019, 25 October 2019 and 28 October 2019 totalling $25.60; and

    ·     one payment to [Childcare provider] of $39.60 on 24 October 2019 for childcare.

12. Mr Dewdney told the Tribunal there was also an additional payment of $526.91 towards the home mortgage on 1 November 2019 which was not on the list. He said all payments towards the mortgage were payments made weekly in advance.

13. Mrs Dewdney said she accepted the five mortgage payments, totalling $2,634.55, in lieu of child support even though a small portion fell outside the arrears period. Mrs Dewdney told the Tribunal she also accepted the payments made for water, [insurance], [Mobile phone provider], all PayPal payments and [Childcare provider]. Mrs Dewdney said she did not agree the supermarket payments made on 9 October 2019, 14 October 2019 or 28 October 2019 were hers nor any of the fuel or McDonald’s payments. Mr Dewdney said he was happy to accept those payments identified by Mrs Dewdney were not hers.

14. Mrs Dewdney told the Tribunal that although there were payments coming out of the joint account that were to be considered in lieu of child support, she had also been contributing funds into the account during the arrears period. Mrs Dewdney said she had identified transfers to the joint account from her personal account in bank statements provided to the Child Support Agency which should be considered before calculating the amount of arrears owed by Mr Dewdney.

15. The Tribunal notes in evidence provided to the Child Support Agency by Mrs Dewdney on 5 May 2020 a copy of bank statements for the joint account held in the names of Mrs Dewdney and Mr Dewdney. In the period from 5 October 2019 to 5 November 2019 Mrs Dewdney has highlighted eight deposits totalling $2,610.00 which she told the Tribunal were transfers from her personal ANZ account.

16. Mr Dewdney told the Tribunal he agreed Mrs Dewdney was contributing funds back into the joint account during the arrears period and accepted the amounts she had identified totalling $2,610.00. Mr Dewdney pointed out, however, that Mrs Dewdney had withdrawn $5,000.00 from the joint account on 9 September 2019, which was how she had the funds in the first place to then contribute back to the same account. Mrs Dewdney responded by saying that the parents were still together at the time she withdrew the funds and as it was a joint account she was still entitled to that money. The Tribunal is satisfied with the explanation provided by Mrs Dewdney. Any disagreement about funds in the joint account prior to the arrears period should be resolved by the parents during property settlement.

17. The Tribunal finds that Mrs Dewdney applied for arrears to be collected for the period from 5 October 2019 to 5 November 2019. As this period does not exceed three months her application must, therefore, be granted.

18. Mrs Dewdney and Mr Dewdney agree that payments of $2,634.55 towards the mortgage, $160.00 for water bills, $108.34 for [insurance], $124.99 for [Mobile phone provider] bills, $302.87 for PayPal payments, $276.48 for shopping and $39.60 for childcare were made during the arrears period. These amounts total $3,646.83. The parents also agree that Mrs Dewdney transferred $2,610.00 to the account during the arrears period. The Tribunal therefore finds the difference, being $1,036.83, is the contribution made by Mr Dewdney during the arrears period from 5 October 2019 to 5 November 2019.

19. The Child Support Agency has calculated that Mr Dewdney’s child support liability during the arrears period was $2,841.12. Neither parents disputed this amount and the Tribunal, upon review, finds it to be correct.

20. The Tribunal is satisfied that the amount of child support owed by Mr Dewdney in the arrears period from 5 October 2019 to 5 November 2019 is $1,804.29.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the amount of child support payable by Mr Dewdney in the arrears period is $1,804.29.