Drew and Dawkins (Child support)

[2024] ARTA 442

Drew and Dawkins (Child support) [2024] ARTA 442 (25 November 2024)

Applicant/s:  Mr Drew

Respondent:  Child Support Registrar    

Other Parties:       Ms Dawkins

Tribunal Number:   2024/BC028330; 2024/BC028520 

Tribunal:  General Member S Letch

Place:Brisbane

Date:25 November 2024

Decision:The Tribunal affirms the decisions under review.

CATCHWORDS

CHILD SUPPORT – non-agency payments – half of school fees paid by father – legal advice that payments would be credited – claims accepted, the reversed, with large overpayment sought – legislative test, not general fairness or broad discretion – father’s level of care more than 14% and no intention by mother – 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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.

Statement of Reasons

1. This matter concerns a decision by Child Support to refuse to credit “non-agency payments” (NAPs) claimed by Mr Drew.

2. It is convenient by way of background to set out some extracts from the objections officer’s decisions dated 26 July 2024 and 4 September 2024:

   We have made the decision to refuse to accept a non-agency payment totalling $1,051 as a prescribed or a non-agency payment.

   The effect of the objection decision is: no effect on the assessment.

   DECISION UNDER REVIEW             

   We made the decision to refuse to accept a non-agency payment totalling $1,051, which was Mr Drew’s half of the school fees paid on 29 February 2024.

   Mr Drew has objected to this decision stating he received legal advice supporting him that these payments should be credited as child support. Mr Drew advised he had an arrangement with Ms Dawkins that they will pay half the costs for schooling needs as part of their ongoing child support.

   REASONS FOR THE DECISION

   On the 26 April 2024, we made the decision to refuse to accept a non-agency payment totalling $1,051, which was Mr Drew’s half of the school fees.

   At the time the decision was made the level of care on our records were reflected as Ms Dawkins providing 77% and Mr Drew 23% for [Children 1 and 2] which was effective from 31 March 2023.

   Mr Drew objected to this decision stating he received legal advice supporting him that these payments should be credited as child support. Mr Drew advised he had an arrangement with Ms Dawkins that they will pay half the costs for schooling needs as part of their ongoing child support.

   When Mr Drew claimed the school fee payment, he did provide evidence from [School] confirming payment was made.

   Prescribed non-agency payment

   We can accept the total of $1,051 made on 29 February 2024, which covered Mr Drew’s half of the children’s school fees under section 71C of the Child Support (Registration & Collection) Act 1988 where the following applies:

   - the amount has actually been paid or transferred.

   - at the time the payment was made, Mr Drew had less than regular (14%) care of [the children].

   Mr Drew has more than 14% care of [the children].

   Non-Agency Payment:

   We can credit payments as a Non-Agency Payment under section 71A of the Child Support (Registration & Collection) Act 1988 where the following applies:

   - The amount has actually been paid or transferred.

   - The payment was made towards an enforceable maintenance liability.

   - The payment was intended as child support.

   Note: As mutual intention was not established, the payment does not meet the criteria under section 71A of the Act for acceptance as a non-agency payment.

   Note: Again, as mutual intention was not established and the level of care was above 14% to Mr Drew, the payment does not meet the criteria under section 71C of the Child Support (Registration & Collection) Act 1988.

   Based on this, we are satisfied Mr Drew has not met either criteria to accept as non-agency under both 71A and 71C of the Child Support (Registration & Collection) Act 1988.

   Therefore, we will continue to reflect our decision made on 26 April 2024, to refuse to accept a non-agency payment totalling $1,051 as a prescribed or a non-agency payment.

   The objection is disallowed.

   …

   DECISION UNDER REVIEW

   Type of decision being objected to: Non-Agency Payments (NAPs)

   Decision being objected to:

   The decision to accept various third-party payments totalling $4,644.61 for school fees, uniforms, and childcare costs paid between 15 May 2023 and 28 November 2023 as
   non-agency payments.

   …

   Ms Dawkins has objected to this decision because she and Mr Drew are each responsible for paying 50% of the children’s school fees and childcare costs, she does not agree that this should have been credited as child support.

   …

   REASONS FOR THE DECISION

   On 18 December 2023 we made the decision to accept non-agency payments totalling $4,644.61.

   At the time this decision was made the care of [the children] was reflected as 51% to Ms Dawkins and 49% to Mr Drew from 28 April 2023.

   Ms Dawkins has objected to the decision because she and Mr Drew are each responsible for paying 50% of the children s school fees and childcare costs, she does not agree that this should have been credited as child support.

   We can credit payments as a Non-Agency Payment under section 71A of the Child Support

   (Registration & Collection) Act 1988 where the following applies:

   - The amount has actually been paid or transferred.

   - The payment was made towards an enforceable maintenance liability.

   - The payment was intended as child support.

   Ms Dawkins does not agree that the payments were intended as child support.

   We can accept the total of $4,644.61, which Mr Drew paid for school fees, uniforms and childcare costs under section 71C of the Child Support (Registration & Collection) Act 1988, (Prescribed non-agency payments), where the following applies:

   - the amount has actually been paid or transferred.

   - at the time the payment was made, Mr Drew had less than regular (14%) care of [Child 1 and Child 2 (misspelled)] [sic]

   Mr Drew has more than 14% care of [the children].

   As mutual intention was not established and the level of care was above 14% to Mr Drew, the payment does not meet the criteria under section 71A or 71C of the Child Support (Registration & Collection) Act 1988.

   Based on this, we are satisfied Mr Drew has not met either criteria to accept non-agency payments under either 71A or 71C of the Child Support (Registration & Collection) Act 1988.

   Therefore, we have made the decision to refuse to accept non-agency payments totalling $4,644.61 as a non-agency payment or prescribed non-agency payment.

   We will disallow the non-agency amounts totalling $4,644.61.

   The objection is allowed.

3. Mr Drew participated in the hearing by conference telephone. Ms Dawkins advised the Tribunal in advance of the hearing she would not participate in the hearing.

4. In summary, Mr Drew told the Tribunal that he had been told by a number of different “agents” that all he needed do was to provide receipts and that his child support account would be “credited”. He followed that advice, and a decision was made to accept his claims. Many months later, Child Support reversed that decision and sought a very large overpayment exceeding $3,000 without any negotiation or agreement. He feels as though he has been “dudded” by agreeing to make payments which would normally be expected to be met from the usual amount of child support. The care of the children is shared; even so, because his income is higher, he is expected to pay more child support. Mr Drew said the property settlement is due to be finalised shortly; Ms Dawkins will receive a large lump sum. Mr Drew said that Ms Dawkins has indicated she is going to purchase a horse; Mr Drew said his financial position is constrained by his mortgage and being a single parent. He works hard, including doing overtime (as [an occupation]).

5. Mr Drew did not seriously suggest that Ms Dawkins intended the payments he made to be in lieu of child support; he said the relationship is not an agreeable one and suggested that Ms Dawkins’s ambition is to maximise child support – she would never concede she intended the payments he made to reduce his child support liability.  

Application of the law

1. It is important to observe that the legislative test to be applied here is not one of general fairness or the exercise of some other broad discretion; the requirements to credit a non‑agency payment are very carefully prescribed.

2. Part V of the Child Support (Registration and Collection) Act 1988 (the Act) provides for NAPs to be credited where, amongst other things, both the payer and payee intended for payments to be in partial or complete satisfaction of child support liability.

3. Ms Dawkins has consistently maintained to Child Support that she did not intend for any of the payments the subject of this review to be in lieu of child support. Mr Drew does not seriously dispute that Ms Dawkins did not intend the sums he paid to be in lieu of child support. I have no reason to doubt her representations to Child Support that she understood there to be an agreement or understanding that school and related fees would be shared at the time. Whilst I understand Mr Drew’s submission, in the absence of the requisite intent on Ms Dawkins’s part, the payments claimed by Mr Drew cannot be credited pursuant to section 71A of the Act.

4. Section 71C of the Act allows for a credit to occur for certain categories of payments regardless of the intention of the parties. The types of payments which can be taken into account are carefully prescribed. The Child Support Guide, at section 5.3.1, accurately summarises the relevant law:

   Prescribed non-agency payments

   The Registrar can credit certain payments towards a payer’s child support liability regardless of the intention of the parents at the time the payment was made (CSRC Act section 71C), except if:

   ·      the liability is an overseas maintenance liability (CSRC Act section 71C(6))

   ·      the liability is a recovery order, or for spousal or de facto maintenance (CSRC Act section 71C(5)(a))

   ·      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 (CSRC Act section 71C(1)(ba)), or

   ·      at the time the payment was made, the child support liability was being fully or partially met by a lump sum credit (CSRC Act section 71C(2)) (refer to 5.3.3).

   Credit can be given up to a maximum of 30% of the liability, provided:

   ·      the balance of child support is paid as it becomes due and payable

   ·      the payer has less than 14% care of all of the children to whom the relevant administrative assessment relates at the time the credit is being applied (CSRC Act section 71C(1)(d)), and

   ·      the child support liability is not already being met by a lump sum credit (CSRC Act section 71C(5)(b)).

   The balance can be paid in cash or in the form of a non-agency payment credited under CSRC Act sections 71 or 71A, or from money credited from another source such as a tax refund or payment from a third party.

   The Registrar can only credit amounts paid on or after 1 July 1999.

   The types of payments that can be credited in this way are prescribed by regulation (CSRC Act section 71C(1)(b) and CSRC Regs section 19). They are:

   ·      child care costs for the child who is the subject of the enforceable maintenance liability

   ·      fees charged by a school or preschool for that child

   ·      amounts payable for uniforms & books required by a school or preschool for that child

   ·      fees for essential medical and dental services for that child

   ·      the payee’s share of amounts payable for the payee’s home, and

   ·      costs to the payee of obtaining & running a motor vehicle, including repairs & standing costs.

   If the payer satisfies the conditions and the prescribed non-agency payment is accepted, the Registrar can credit up to 30% of the current liability from the date of notification of the payment. If the amount of the payment is more than 30% of the enforceable maintenance liability in a given month, the excess amount will be retained as an ‘uncredited’ amount. This uncredited amount can be applied against the payer’s enforceable maintenance liability in a later month provided the conditions for payment are again met, and can be carried over to a different child support enforcement period as long as it relates to the same liability.

5. I am satisfied that Mr Drew was recorded as having more than 14% care (or “regular care”) of the children at all material times. Accordingly, there is no basis to credit the payments claimed by Mr Drew as prescribed non-agency payments.

6. As this is the same conclusion as the objections officers, the decisions under review will be affirmed.

DECISION

The Tribunal affirms the decisions under review.

Date(s) of hearing:	Monday, 25 November 2024
Representative for the Applicant:	Self-represented
Representative for the Other party:	Not attended