Duvernay and Duvernay (Child support)

[2020] AATA 2141

Duvernay and Duvernay (Child support) [2020] AATA 2141 (20 March 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC018130

APPLICANT:  Duvernay

OTHER PARTIES:  Child Support Registrar

Ms Duvernay

TRIBUNAL:Member S Letch

DECISION DATE:  20 March 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – non-agency payment - whether payment was made to a third party in lieu of child support - intention of both parents – no evidence of mutual intention by one parent - 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

1. This matter concerns an application by Mr Duvernay against an objection decision dated 26 November 2019. In that decision, the Child Support Agency (CSA) decided to refuse to credit non-agency payments (NAPs) of $17.50 (9 July 2019) and $448 (31 May 2019) paid by Mr Duvernay as “third party medical payments”. [1]

   [1] Mr Duvernay has more than regular care, excluding consideration of a different species of NAPs called “prescribed non-agency payments”, which do not require the existence of mutual intention.

2. The objection decision provides the following useful background (unedited):

   1.     Mr Duvernay and Ms Duvernay have had a registered child support case for [Child 1] and [Child 2] from 10 November 2015, with an enforceable maintenance liability from 15 April 2019.

   2. On 16 July 2019, Mr Duvernay reported non agency payments of

   -third party medical payment, paid on 9 July 2019 of $17.50

   -third party medical payment, paid on 31 May 2019 of $448.00

   3. Ms Duvernay did not agree for these payments to be accepted in lieu of child support

   4. On 26 July 2019 we made the decision to refuse non agency payments of

   -third party medical payment, paid on 9 July 2019 of $17.50

   -third party medical payment, paid on 31 May 2019 of $448.00

   5. Mr Duvernay objected to this decision on 21 August 2019 on the grounds: This is a legitimate

   expense that has been shared equally in the past. Considering Ms Duvernay's net income

   including all government payments and my child support is greater than my net income after

   deducting payments to child support, I believe that the expenses should be shared equally.

   Previous expenses have been shared equally and agreed to by Ms Duvernay.

   I miscalculated the [medical] costs for [Child 2] and Ms Duvernay's half should have been $224.

   [Child 1]'s remains the same at $17.50

   Mr Duvernay provided

   -Tax invoice from [specialist]for [Child 2]

   6. Ms Duvernay responded to the objection on 9 September 2019, Ms Duvernay advised the medical expenses are to do with [medical device] and that she had taken [Child 2] to the [specialist] a couple of weeks before and the [specialist] advised that she was border line and could get away with not needing [medical device] at this time [Child 2] wanted [medical device] and Ms Duvernay believes [Child 2] may have told Mr Duvernay this and Mr Duvenay took her to the [specialist] of his own accord and got her [medical device].

   Ms Duvernay advised she does not agree with [medical device] being child support.

3. The Tribunal conducted a hearing in which both parties participated by conference telephone.

4. Part V of the Child Support (Registration and Collection) Act 1988 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.

5. Mr Duvernay, in his written application to the Tribunal, advised the following as to why he thought the CSA decision was wrong:

   Previous [medical] costs have been paid equally by both parties.

   The expense was [justified].

   The use of the [medical device] has relieved the headaches being experienced by [Child 2].

   The cost caused financial hardship to myself.

6. The Tribunal accepts that Mr Duvernay intended the sums to be in lieu of child support. The matter turns on whether Ms Duvernay held the same intention.

7. The Tribunal observes this is not a question of whether Ms Duvernay should have intended the sums be in lieu of child support on the basis, for example, of any suggestion about what might be fair or otherwise reasonable; the question to be resolved is whether she actually held the requisite intent.

8. The Tribunal did not take Mr Duvernay’s submissions during the hearing as seriously suggesting Ms Duvernay had intended those sums to reduce Mr Duvernay’s enforceable child support liability. Ms Duvernay has been entirely consistent in her representations; the Tribunal had no hesitation accepting her evidence that she held no intention for those payments to reduce Mr Duvernay’s general child support liability. There is no other evidence which could contradict Ms Duvernay’s evidence about her intentions.

9. The Tribunal therefore determines that the amounts claimed should not be credited in the particular circumstances of this case. As the Tribunal has reached the same conclusion as the objections officer, the decision under review will be affirmed.

10. The Tribunal observes that if Mr Duvernay considers the child support assessment unfair in some way, he may approach the CSA and apply for a “change of assessment” which gives discretion to depart from the formula arrangements. In some limited circumstances, the effect of departure can be backdated up to a period of 18 months.

DECISION

The decision under review is affirmed.