Dustin and Tatro (Child support)

[2021] AATA 3674

Dustin and Tatro (Child support) [2021] AATA 3674 (24 August 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/AC021962

APPLICANT:  Ms Dustin

OTHER PARTIES:  Child Support Registrar

Mr Tatro

TRIBUNAL:Member Y Webb

DECISION DATE:  24 August 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – non-agency payment – whether payments made to a third party in lieu of child support – intention of both parents - prescribed payment for school fees – whether the amount ought not to be credited in the circumstances of the case - 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 payments for child care by Mr Tatro totalling $7,037.66 should be accepted and credited against his child support liability as a non-agency payment (NAP) or a prescribed non-agency payment (PNAP).

2. This review relates to the twin children (the children) of Ms Dustin and Mr Tatro.  The children are three years old and at the relevant time the children were recorded as being in the 100% care of Ms Dustin for child support purposes.

3. The child support case is registered with Services Australia (Child Support Agency) and has been collectable by the Child Support Agency since 9 June 2020.

4. On 17 March 2021 Mr Tatro contacted the Child Support Agency to request that child care payments made between the period 27 July 2020 to 16 March 2021 be credited against his child support liability.

5. On 18 March 2021 Ms Dustin informed a Child Support Agency officer that she did not accept that there was any mutual agreement that the child care payments would be in lieu of child support.

6. On 6 May 2021 the Child Support Agency decided that the payments for child care made by Mr Tatro would be accepted as PNAPs.

7. On 19 May 2021 Ms Dustin objected to that decision.

8. On 7 July 2021 an objections officer of the Child Support Agency disallowed Ms Dustin’s objection on the basis that the payments met the criteria to be accepted as PNAPs and that the written agreement between Ms Dustin and Mr Tatro could not be considered as the agreement of 2 April 2021 was signed after all of the claimed payments had been made.

9. On 20 July 2021 Ms Dustin requested a review by the Administrative Appeals Tribunal (the Tribunal).

10. Ms Dustin attended the hearing on 24 August 2021 by way of a telephone conference and gave her evidence on affirmation. Mr Tatro could not be reached despite several attempts to call him and the review proceeded in his absence.

11. The Tribunal received a bundle of relevant papers from the Child Support Agency and these were marked as Exhibit C1.

12. Prior to the hearing Ms Dustin provided a copy of a parenting plan signed on 11 June 2021. This was marked as Exhibit A1-A7.

ISSUES

1. The issues for the Tribunal to determine are:

   (i)   whether Mr Tatro made payments during an enforceable maintenance liability period and if so, the amount of those payments; and

   (ii)     whether there was agreement between Ms Dustin and Mr Tatro that the payments were intended by both parents to be credited against Mr Tatro’s child support liability; or

   (iii)   whether the payment qualified as a PNAP and could be accepted as such.

CONSIDERATION

1. The legislation relevant to this decision is contained in the Child Support (Registration and Collection) Act 1988 (the Act).

2. When the Child Support Agency registers a child support liability for collection, the amounts payable become a debt to the Commonwealth and are payable to the Child Support Registrar pursuant to section 30 of the Act.In some circumstances the Child Support Agency may credit payments made directly to a payee or to a third party against a child support liability that is registered for collection by the Child Support Agency if they were intended as child support.  The Child Support Agency may also credit the value of non-cash payments or the provision of services in the same way.  These credits are referred to as NAPs and the relevant provisions are found in sections 71, 71AA, 71A, 71B, 71C and 71D of the Act.

3. Of relevance in this review is section 71A of the Act.  It relevantly provides (in summary) that an NAP can be accepted in the following circumstances:

   ·      the amount has actually been paid or transferred; and

   ·      the payments were made after the Child Support Agency started collecting child support; and

   ·      at the time that the payment was made it was mutually agreed by the payer and the payee that the payment was intended to count as child support.

4. Central to the crediting of payments under section 71A of the Act is that the payments were intended by both the payee (Ms Dustin) and the payer (Mr Tatro) to be a payment to be credited against Mr Tatro’s child support liability.  If that common intention is present, 100% of the payments can be so credited. 

5. In this case on 17 March 2021 Mr Tatro notified the Child Support Agency that he had made child care payments between 27 July 2020 and 16 March 2021 and he requested that these payments be credited as an NAP.  Mr Tatro provided a copy of his bank transactions showing 31 payments to the childcare centre between 27 July 2020 and 16 March 2021 which totalled $7,037.66.  The details of the bank transactions to “[a named]” childcare centre were:

Date	Amount
16 March 2021	$211.76
9 March 2021	$211.76
2 March 2021	$211.76
22 February 2021	$211.76
16 February 2021	$211.76
15 February 2021	$211.76
1 February 2021	$211.76
27 January 2021	$211.76
19 January 2021	$211.76
12 January 2021	$211.76
21 December 2020	$211.76
15 December 2020	$211.76
8 December 2020	$253.08
30 November 2020	$500.00
25 November 2020	$500.00
16 November 2020	$500.00
10 November 2020	$500.00
4 November 2020	$220.90
27 October 2020	$258.28
19 October 2020	$265.38
6 October 2020	$132.84
29 September 2020	$132.84
21 September 2020	$132.84
10 September 2020	$132.54
3 September 2020	$169.42
24 August 2020	$132.54
17 August 2020	$169.72
10 August 2020	$132.54
3 August 2020	$132.84
29 July 2020	$169.42
27 July 2020	$61.36
TOTAL	$7,037.66[1]

[1] There were some minor discrepancies in the dates of the payments to the child care centre as evidenced in the bank transaction statements compared with the dates of payment as recorded by the CSA.   However, the Tribunal has relied on the dates of payment as detailed in the bank transactions. In both cases the amount claimed totals $7,037.66.

1. The Tribunal finds that the payments were made on the dates listed above and that these dates were after the Child Support Agency started collecting child support on 9 June 2020. 

2. On 18 March 2021 the Child Support Agency contacted Ms Dustin to ascertain whether there was an agreement between her and Mr Tatro that the child care payments would be in lieu of child support.  Ms Dustin stated that there was no mutual agreement that the payments would be credited in lieu of child support.

3. Ms Dustin confirmed at the hearing that she did not agree to credit the payments in lieu of child support.

4. The Tribunal finds that there was no arrangement or mutual agreement between Ms Dustin and Mr Tatro that the $7,037.66 paid in child care fees to the child care centre was in lieu of child support.  Hence the payment cannot be accepted pursuant to section 71A of the Act.

5. The Tribunal then considered whether the payments met the criteria to be credited as PNAPs.  Section 71C of the Act provides that payments made by a parent for purposes specified in the Child Support (Registration and Collection) Regulations 2018 (the Regulations) can be credited against the child support liability.  This can occur regardless of the consent of the other parent.  An amount of up to 30% of the current liability can be credited.  If the amount of the payment is more than 30% of the enforceable maintenance liability in a given month, the excess amount can be applied against the liability in a later month providing the conditions for payment are again met.

6. Subsection 71C(1) details the prerequisites for crediting this type of payment.  The prerequisites are summarised as follows:

   ·      There is an enforceable maintenance liability;

   ·      There has been a payment to the payee or another person;

   ·      The payment is a kind specified in the Regulations;

   ·      The payments have not previously been credited against the child support liability; and

   ·      The payer does not have at least regular care of any of the children to whom the relevant administrative assessment relates, either at the time the payments were made or the time the Registrar applies this section.

7. One of the prerequisites specified in section 71C is that the payment must be of a kind specified in the Regulations.  Regulation 19 of the Regulations specifies the types of payments that can be credited under section 71C. They are:

   Specified payments

   For the purposes of paragraph 71C(1)(b) of the Act, payments of the following kinds in relation to an enforceable maintenance liability are specified:

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

   (b)      fees charged by a school or pre‑school for that child;

   (c)amounts payable for uniforms and books required by a school or pre‑school 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.

8. In relation to the childcare payments totalling $7,037.66 the Tribunal finds that all of the pre-requisites for crediting detailed above have been met.

9. Ms Dustin contended that the Child Support Agency should not have credited the payments as PNAPs. Ms Dustin advised that she and Mr Tatro had a hand-written agreement which was signed on 2 April 2021 and which included the statement: “Child care fee still under Mr Tatro’s responsibility”.  However, that agreement does not refer to payment for any fees prior to the date of signing and Mr Tatro’s payments all related to a period prior to 2 April 2021.  Hence, the Tribunal is satisfied that the agreement of 2 April 2021 does not apply to the payments made between 27 July 2020 and 16 March 2021.

10. Prior to the hearing Ms Dustin also provided a copy of a parenting plan prepared with the assistance of [a Mediation agency] dated 31 May 2021 (amended 4 June 2021) but signed on 11 June 2021 which included the statement: “Mr Tatro agrees to pay child care fees as well as child support back payments dating from 01/07/2020” and “Mr Tatro shall pay 100% of the actual expenses incurred for child care provided by an approved registered provider”.

11. However, the Tribunal is satisfied that this parenting plan signed on 11 June 2021 was signed by Ms Dustin and Mr Tatro after all of the claimed payments had been made and after Mr Tatro had lodged his claim in relation to the payments and after the Child Support Agency had already accepted the PNAP’s claim on 6 May 2021. 

12. The Tribunal then considered whether section 71D of the Act should apply.  Section 71D states:

    Registrar may refuse to credit amount in special circumstances

    The Registrar may refuse to credit an amount under section 71, 71A or 71C if satisfied that, in the circumstances of the particular case, the amount ought not to be credited.

13. The Tribunal referred to the Child Support Guide at 5.3.1 in relation to the application of section 71D of the Act. 

14. The Guide, in referring to the discretion to refuse to credit an amount, stated that the Registrar may refuse to credit a NAP or PNAP in circumstances where “the payer is claiming credit under the CSRC Act section 71C for an expense which they have undertaken to pay in addition to their liability as specified in an agreement between the parents (this does not have to be a child support agreement)”. The Tribunal does not consider that the agreement signed on 2 April 2021 or the parenting plan signed on 11 June 2021 justify the application of section 71D because neither of the agreements were signed when Mr Tatro made his claim and all of his claims related to child care payments which pre-dated the agreements. 

15. Therefore the Tribunal is satisfied that the Child Support Agency correctly accepted the payments totalling $7,037.66 relating to the child care payments made in the period 27 July 2020 to 16 March 2021 as PNAPs.

DECISION

The decision under review is affirmed.