Dinman and Dinman (Child support)

[2022] AATA 3525

Dinman and Dinman (Child support) [2022] AATA 3525 (13 July 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC023659

APPLICANT:  Mr Dinman

OTHER PARTIES:  Child Support Registrar

Ms Dinman

TRIBUNAL:Member R Anderson

DECISION DATE:  13 July 2022

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – non-agency payment - prescribed payment for school fees - payment correctly refused - 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.

REASONS FOR DECISION

BACKGROUND

1. Mr Dinman and Ms Dinman are the separated parents of [Child 1].  The child support assessment was initially registered with Services Australia – Child Support (the Agency) on 25 June 2012.  It is Mr Dinman who is the parent liable to pay child support to Ms Dinman in respect of [Child 1].  The Agency had been responsible for collection of child support from Mr Dinman from the outset.  The child support assessment was terminated on 20 December 2021.

2. According to Agency records, Mr Dinman submitted an application on 21 October 2021 to have a range of payments made directly to third parties for the benefit of [Child 1] between 8 March 2016 and 29 April 2021 credited against his child support liability as non-agency payments. The records indicate that the majority of payments claimed were in respect of private school fees.

3. As Ms Dinman did not agree that any of the payments were intended to be in lieu of child support and the Agency was not satisfied that the payments for private school fees had been made by Mr Dinman, the application was refused by the Agency on 23 December 2021.

4. On 18 January 2022, Mr Dinman objected to the decision of 23 December 2021 and an objections officer decided to disallow the objection on 23 March 2022. Consequently, on 11 April 2022, Mr Dinman lodged an application with this tribunal for an independent review of the objections officer’s decision.

5. The matter was heard on 28 June 2022.  Mr Dinman advised that he was unwell but told the tribunal that he was happy to proceed with the hearing.  Mr Dinman and Ms Dinman both participated by conference telephone and gave oral evidence to the tribunal on affirmation.  At hearing both parties confirmed receipt of documents provided by the Agency numbered 1 to 152. 

6. On 28 June 2022, the tribunal decided to defer making a decision in this matter to allow 14 days for Mr Dinman to provide additional information in support of his case. On 13 July 2022, as no further information was provided, the tribunal proceeded to make a decision.

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 whether the payments submitted by Mr Dinman should be credited against his enforceable maintenance liability (child support liability).

3. Both parties agreed that there was no discussion in regard to whether any of the payments submitted by Mr Dinman were intended to be in lieu of child support.  Therefore, as discussed at hearing, as no mutual intention existed, section 71 and section 71A of the Act cannot apply and consideration is limited to section 71C of the Act. The tribunal finds accordingly.

CONSIDERATION

1. Mr Dinman initially submitted to the Agency that payments totalling $35,750 should be credited against his child support liability in respect of payments for [Child 1]’s private school fees.  In addition he submitted that a payment of $560 for childcare costs made on 30 January 2017 and a direct payment in the amount of $220 made on 30 March 2017 also be credited against his child support liability.

2. Evidence in support of payments made was limited to those listed in the table below.  The tribunal notes that the Agency records have duplicated some payments and recorded payments in respect of [Child 1]’s school fees totalling $13,017.67.  Mr Dinman did not take the opportunity to provide further evidence of other payments after the hearing.  As such, the tribunal is limited to consideration of the following payments:

Date paid	Paid from where?	Paid to who?	Amount $
04/03/16	[Company 1]	[School 1]	631.34
30/03/16	[Company 1]	Maintenance- unclear whether paid directly to Ms Dinman or to the kindergarten.	560
09/06/16	[Company 1]	[School 1]	658.33
19/08/16	[Company 1]	[School 1]	658.33
30/01/17	[Company 1]	soccer	220
29/03/17	[Company 1]	[School 1]	801
24/08/17	[Company 1]	[School 1]	801
21/03/18	[Company 1]	[School 1]	849
17/10/18	[Company 1]	[School 1]	849
08/08/19	[Company 1]	[School 2]	948
17/02/20	[Company 1]	[School 2]	964
03/02/21	[Company 1]	[School 2]	1,828
28/04/21	[Company 1]	[School 2]	1,928
Total payments	11,696

1. The tribunal noted that there is a significant discrepancy between the payments supported by evidence in the amount of $11,696 and the application amount of $36,530.  There is a further discrepancy again when compared to the school fees recorded in the transactions report from the Catholic Education Diocese of [locality].  Furthermore, the payments have all been made from the business account of [Company 1] (the Company).

2. Subsection 71C(1) of the Act provides, relevantly, that when an enforceable maintenance liability is in place and the payer (Mr Dinman) makes a payment of a type prescribed in the Child Support (Registration and Collection) Regulations 2018 (the Regulations) directly to the payee (Ms Dinman) or another person/entity, that payment can be credited against the amount payable under the liability if certain other criteria are met, despite no mutual intention of the parties existing.

3. The conditions under subsection 71C(1) are not mutually exclusive and must all be met before an amount can be credited against a payer’s enforceable maintenance liability. Furthermore, the decision to credit a payment against a payer’s enforceable maintenance liability is subject to section 71D of the Act.  Section 71D is a discretional provision which enables a decision maker to decide not to credit a payment against a payer’s enforceable maintenance liability if satisfied that in the circumstances of the case it ought not be credited.

4. “Enforceable maintenance liability” is defined in section 4 of the Act as a “registered maintenance liability”.  Relevantly, under section 17 of the Act, subparagraph 17(1)(a)(i) defines registered maintenance liability as a liability of a parent of a child to pay a periodic amount to the other parent for the maintenance of the child.  Clearly from 25 June 2012, an enforceable maintenance liability existed in respect of the liability of Mr Dinman to pay monthly child support payments, as assessed by the Agency, to the Agency for payment to Ms Dinman to use to maintain [Child 1].

5. Relevantly, section 19 of the Regulations provides that fees charged by a school for the child (subsection 19(b) of the Regulations) are specified payments. Specified payments do not include payments for soccer and general maintenance needs.

6. The tribunal then turned its mind to whether Mr Dinman had made the payments. In respect of the payments of $560 and $220 made on 30 March 2016 and 30 January 2017 respectively, as noted above, they cannot be considered under section 71C of the Act as they do not fall under specified payments in the Regulations.  As also noted above, no mutual intention existed, therefore section 71 and section 71A of the Act cannot apply.  Accordingly, the tribunal is satisfied that the payments of $560 and $220 made on 30 March 2016 and 30 January 2017 respectively cannot be credited against the child support liability of Mr Dinman, regardless of who made the payments.

7. Ms Dinman gave oral evidence that when [Child 1] initially commenced her education there was a verbal agreement with Mr Dinman’s father that the school fees would be paid.  Mr Dinman gave oral evidence that he had said that he would be responsible for [Child 1]’s school fees.  While he also paid child support, Mr Dinman gave oral evidence that when he received a notice of arrears in 2021 he decided that he had paid enough in school fees and that they should be offset against his arrears.

8. In response to a question from the tribunal, Mr Dinman stated that the Company is owned and operated by his brother.  While Mr Dinman contracts to the Company, he does so through his own sole trader business.  He further clarified that his father also operates his own sole trader business and does not contract to the Company.  Mr Dinman maintains that the payments made from the Company in respect of costs for [Child 1] are a loan from the Company to him.  The tribunal allowed an additional 14 days after the hearing for Mr Dinman to provide the balance sheets of the Company and any relevant loan agreements in support of his assertion.  No further contact was made by Mr Dinman nor was any further evidence received. 

9. The tribunal carefully considered the oral and written evidence before it, noting the discrepancies in the amounts initially claimed, the lack of supporting evidence for some of the school fees listed in the transaction statements from the Catholic Education Diocese of [locality] and the lack pf supporting evidence that a loan existed between Mr Dinman and the Company.  On balance, the tribunal decided that there was not sufficient evidence to make a finding that Mr Dinman had made the payments as set out in the table above.  Rather, they had been made by his brother through the Company.  There was no evidence that Mr Dinman maintained any liability to repay his brother or that any repayments had been made, despite some of the payments being made some six years ago.

10. As the tribunal is not satisfied that Mr Dinman made the payments, the tribunal finds that the condition under paragraph 71C(1)(a) of the Act is not met. Accordingly, regardless of whether the remaining criteria are met, all of the criteria under section 71C(1) cannot be met. Therefore, the tribunal finds that the payments to [School 1] and [School 2] from the Company business account in the amount of $10,916 cannot be credited against the child support liability of Mr Dinman under section 71C of the Act.

DECISION

The decision under review is affirmed.