Engman and Engman (Child support)

[2021] AATA 2910

Engman and Engman (Child support) [2021] AATA 2910 (28 June 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2021/SC021307, 2021/SC021309, 2021/SC021310, 2021/SC021662

APPLICANT:  Mr Engman

OTHER PARTIES:  Child Support Registrar

Ms Engman

TRIBUNAL:Member M Baulch

DECISION DATE:  28 June 2021

DECISION:

The decisions under review are affirmed.

CATCHWORDS

CHILD SUPPORT – non-agency payment – prescribed payment for school fees – payment not made prior to credit being applied for – 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. These applications for review are about whether or not any or all of the payments of $200, $500, 600 and $150 that Mr Engman says he paid for school fees should be credited against Mr Engman’s liability to pay child support to Ms Engman.

2. Mr Engman and Ms Engman are the separated parents of [the child].  Services Australia – Child Support (Child Support) has assessed Mr Engman as liable to pay child support to Ms Engman, with Child Support collecting the liability from Mr Engman on Ms Engman’s behalf.

3. On the following dates, Mr Engman requested that Child Support credit the following amounts against his child support liability (commonly referred to by Child Support as a “prescribed non-agency payment”):

   ·      5 February 2021 – an amount of $200 paid on 5 February 2021;[1]

   ·      25 February 2021 – an amount of $500 paid on 25 February 2021;[2]

   ·      15 March 2021 – an amount of $600 paid on 15 March 2021;[3] and

   ·      19 May 2021 – an amount of $150 paid on 19 May 2021.[4]

   [1] Review number 2021/SC021307

   [2] Review number 2021/SC021309

   [3] Review number 2021/SC021310

   [4] Review number 2021/SC021662

4. On 2 March 2021 (two decisions), 15 March 2021 and 28 May 2021, Child Support decided to refuse to credit any of the payments against Mr Engman’s child support liability on the basis that none of the payments had actually been made (the decisions under review).

5. Mr Engman objected to those decisions and on 21 April 2021 (three decisions) and 1 June 2021, those objections were disallowed.  Mr Engman has now applied to this tribunal for an independent review of Child Support’s decisions.

6. A hearing into the applications for review was held by the tribunal on 16 June 2021.  Mr Engman and Ms Engman both participated in the hearing by conference telephone and both gave sworn evidence during the hearing.  A representative of the Child Support Registrar (the Registrar) did not participate in the hearing.  Ms Engman was represented during the hearing by [Mr A], from [Lawyers], who made submissions on Ms Engman’s behalf.

7. On 16 June 2021, the tribunal deferred determining the applications for review to allow Ms Engman time to consider, and provide any comment on, material lodged by Mr Engman that the tribunal decided, on 16 June 2021, to accept notwithstanding that it had been lodged less than 14 days prior to the hearing (folios A7 to A9).

8. On 25 June 2021, [Mr A] provided a response on behalf of Ms Engman to folios A7 to A9 (at folio B1) and, on 28 June 2021, the tribunal determined the applications for review.

9. The tribunal had before it two bundles of relevant documents provided to it by Child Support pursuant to sections 37 and 38AA of the Administrative Appeals Tribunal Act 1975 (168[5] and 57[6] pages).  Also before the tribunal was material lodged by Mr Engman (folios A1 to A9) and Ms Engman (folio B1).

ISSUES

[5] 2021/SC021307, 2021/SC021309 & 2021/SC021310

[6] 2021/SC021662

1. The legislative provisions relevant to this decision are contained within the Child Support (Registration and Collection) Act 1988 (the Act).

2. The issue to be determined by me in these review applications is whether or not any or all of the amounts of $200, $500, $600 and $150 should be credited against Mr Engman’s enforceable child support liability.

CONSIDERATION

1. Where a parent has applied to Child Support for an assessment of child support, they may also apply to have that liability entered into by the Register and be collected on their behalf from the liable parent by Child Support.  Once this occurs, the liability is then “enforceable” by Child Support against the liable parent and, pursuant to section 30 of the Act, the liability becomes a debt due to the Commonwealth owed by the liable parent.

2. Section 71C of the Act provides for payments of the kind prescribed by regulation to be credited against the amount payable under the enforceable liability for a payment period, up to a maximum of 30% of the amount payable.  The payment must be a payment of the kind specified in regulation 19 of the Child Support (Registration and Collection) Regulations 2018 (paragraph 71C(1)(b) of the Act).  Regulation 19 states that specified payments are payments of the following kinds:

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

   ·      Fees charged by a school or pre-school for that child;

   ·      Amounts payable for uniforms and books prescribed by a school or pre-school for that child;

   ·      Fees for essential medical and dental services for that child;

   ·      The payee’s share of amounts payable for rent or a security bond for the payee’s home;

   ·      The payee’s share of amounts payable for utilities, rates or body corporate charges for the payee’s home;

   ·      The payee’s share of repayments on a loan that financed the payee’s home; and

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

   Paragraph 71C(1)(d) of the Act provides that the payment will not be credited if the liable parent has at least regular care of the child, or any of the children, to whom the child support assessment relates.  Subsection 4(1) of the Act defines regular care to have the meaning given by subsection 5(2) of the Child Support (Assessment) Act 1989 and means care of at least 14% but less than 35%.

3. Section 71D of the Act gives the Registrar, and therefore me, the discretion to refuse to credit payments under section 71C of the Act if satisfied that, in the circumstances of the particular case, the amount ought not to be credited even if the payment meets all the requirements discussed above.

4. The payments in question are said to be for school fees for [the child] and there is no dispute that category of payment is a type prescribed by the Regulations.  Nor is it disputed that Mr Engman did not have regular care of [the child] at the time the payments are said to have been made.

5. The issue at the centre of this matter is whether or not any of the payments in question have actually been made.

Amounts of $200, $500 and $600 (2021/SC021307, 2021/SC021309 & 2021/SC021310)

1. These payments are represented by three personal cheques dated 5 February 2021, 25 February 2021 and 15 March 2021 that were drawn by Mr Engman and made payable to [Education provider]. 

2. Within one of the bundles of documents are two letters from [Primary School], dated 19 February 2021 and 5 March 2021, stating that the school would not be accepting the cheques and they were returned to Mr Engman.  The reason given was that Ms Engman had not consented to the school “cashing” the cheques in satisfaction of part of [the child]’s school fees.  Mr Engman’s evidence during the hearing was the third cheque was returned to him in the same way.

3. Mr Engman’s evidence was that none of the cheques had been presented by the school’s bank and no funds had been drawn from his account in satisfaction of the three cheques.

4. Mr Engman submitted that the fact that Ms Engman had not consented to the cheques being cashed meant that they could still be credited under section 71C of the Act as her consent to the payments was not required.  While Mr Engman is correct that the intention of the parties regarding a payment is not relevant for section 71C of the Act to apply (while intention is relevant for sections 71 and 71A of the Act), the absence of such intention is not sufficient for a payment to be credited in circumstances were a payment has not actually been made.

5. I found that all three cheques were returned to Mr Engman and no funds have been withdrawn from his bank account.  I consequently determined that Mr Engman did not make three payments of $200, $500 and $600 for school fees for [the child]. 

6. As the payments have not been made, they cannot be credited against Mr Engman’s enforceable maintenance liability pursuant to section 71C of the Act.

Amount of $150 (2021/SC021662)

1. This payment is represented by a bank cheque dated 19 May 2021 that was made payable to [Education provider].  Details of a bank transaction show that an amount of $150 was withdrawn from a bank account on 18 May 2021.  While there are no details of the account holder on the transaction information, I consider it reasonable to infer that the account is held by Mr Engman and the withdrawal of $150 on 18 May 2021 represented funds paid by him to his bank for the purposes of having a bank cheque for $150 prepared.

2. Mr Engman’s evidence during the hearing was that he held the bank cheque in his possession until 27 May 2021, when he posted it to the school.  A receipt from [Education provider], issued to Mr Engman, is dated 3 June 2021 (at folio A9) and records the payment being for school fees for [the child]. 

3. It was my view that Mr Engman did not make a payment of $150 for school fees for [the child] until the cheque was received by the school.  The evidence indicates that this occurred on 3 June 2021.  Although the funds were withdrawn from Mr Engman’s bank account on 18 May 2021, those funds would be retained by his bank until the cheque was presented; on his own evidence, Mr Engman retained possession of that cheque until 27 May 2021.

4. I found that at the time Mr Engman applied for this payment to be credited (on 19 May 2021), at the time the original decision was made (on 28 May 2021), at the time the objection decision was made (on 1 June 2021) and at the time Mr Engman applied to this tribunal (on 2 June 2021), Mr Engman had not made a payment of $150 for school fees for [the child]. 

5. [Mr A], on behalf of Ms Engman, has submitted that a payment made on 3 June 2021 falls outside the permissible period of review (at B1).  At hearing, Mr Engman submitted that the only reason the payment had not been received by the school before the objection decision was made, was because Child Support moved too quickly to determine his objection.

6. The High Court has held, in Shi v Migration Agent Review Authority [2008] HCA 31, that it is open to a tribunal to take into account conduct and events that occurred after the original decision was made, and that the tribunal was not confined to the evidence that was before the original decision-maker, unless the legislative scheme requires the decision to be made by the tribunal with reference to a particular point in time. In that decision Kiefel J stated at [143] and [145] (with footnotes omitted):

   Where the decision to be made contains no temporal element, evidence of matters occurring after the original decision may be taken into account by the Tribunal in the process of informing itself.  Cases which state that the Tribunal is not limited to the evidence before the original decision-maker, or available to that person, are to be understood in this light.  It is otherwise where the review to be conducted by the Tribunal is limited to deciding the question by reference to a particular point in time.

   … In each case what is entailed in a decision is to be ascertained by reference to the statute providing for it.

   In this instance, I was satisfied that there is a temporal element when considering the application of section 71C of the Act.  Only payments made during a period when a liability is enforceable can be considered under section 71C of the Act.  Further, paragraph 71C(1)(ba) of the Act makes that clear when it refers to “the time the payment is made”. 

7. Ultimately, at the time of the two events that together enliven this tribunal’s jurisdiction (the objection decision and the application to this tribunal), Mr Engman had not made a payment of $150 for school fees.

8. As the payment had not been made at the relevant time, I decided that it cannot be credited against Mr Engman’s enforceable maintenance liability pursuant to section 71C of the Act.

9. I noted that there is now evidence that Mr Engman has since made a payment for school fees and I considered that it is always open to him to make a fresh request to Child Support seeking to have that payment credited.  The decision on such a request is a matter for Child Support to determine and both Mr Engman and Ms Engman will have rights of review (first by objection and then to this tribunal) if they are unhappy with any outcome.

10. Having concluded that none of the payments can be credited against Mr Engman’s enforceable maintenance liability, I therefore decided, for these reasons, to affirm the decisions under review.

DECISION

The decisions under review are affirmed.