Forst and Forst (Child support)

[2021] AATA 3187

Forst and Forst (Child support) [2021] AATA 3187 (1 July 2021)

Date:  1 July 2021

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2021/MC021488 & 2021/MC021489

APPLICANT:  Mr Forst

OTHER PARTIES:  Child Support Registrar

Ms Forst

TRIBUNAL:Member P Jensen

DATE OF DECISIONS:                   1 July 2021

DECISIONS:

The decisions under review are affirmed.

CATCHWORDS

CHILD SUPPORT – non-agency payment – payment made while no enforceable maintenance liability – 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 DECISIONS

1. Mr Forst and Ms Forst are the parents of three children. A child support case was registered from 7 April 2016 with what is commonly called the Child Support Agency or CSA. Mr Forst has always been the parent who has been assessed to pay child support in respect of the children. Initially, Ms Forst  elected to not have the CSA collect the ongoing child support payable.

2. On 3 February 2021, Mr Forst paid $300 in child support directly to Ms Forst .

3. On 9 February 2021, Ms Forstapplied to have the CSA collect the ongoing child support payable.

4. On 17 February 2021, Mr Forst paid $300 in child support directly to Ms Forst.

5. On 1 March 2021 the CSA decided to grant Ms Forst’s application to have it collect the ongoing child support payable, with effect from 9 February 2021. Mr Forst applied to have a portion of the payment made on 3 February 2021 credited against his liability to the CSA. The CSA decided to not credit any portion of that payment. Mr Forst objected to those two decisions. An objections officer disallowed his objections. Mr Forst applied to the Tribunal for further review. I heard the matters on 28 June 2021. Mr Forstand Ms Forst gave sworn evidence by conference phone.

6. Mr Forst also applied to have the whole of the payment made on 17 February 2021 credited against his liability to the CSA. The CSA decided to credit that payment pursuant to section 71 of the Child Support (Registration and Collection) Act 1988 (“the Registration Act”). Neither parent objected to that decision.

7. It is convenient to address Mr Forst’s concerns in broad terms before turning to a more detailed analysis. Put simply, Mr Forststated that up until 9 February 2021, he had paid Ms Forst more child support than she had been entitled to receive. He submitted that when Ms Forst successfully applied to have the CSA collect the ongoing child support from 9 February 2021, his overpayment up until 9 February 2021 should have been credited against his ongoing liability to the CSA from 9 February 2021. The difficulty with that submission is that, on his account of events, Ms Forst owes a debt to him (as a result of his overpayments of child support to her), and he owes a debt to the CSA (as a result of Ms Forst’s successful application to have the CSA collect the ongoing child support payable), but under the relevant child support legislation, any debt that Ms Forst owes to Mr Forst is not automatically offset against Mr Forst’s debt to the CSA.

8. On 7 April 2016, Ms Forst successfully applied for an administrative assessment of child support: section 25 of the Child Support (Assessment) Act 1989 (“the Assessment Act”). The administratively assessed rate of child support was payable by Mr Forst to Ms Forst: section 77 of the Assessment Act. Ms Forst could have applied to have the CSA collect the ongoing child support payable, but she did not do so. The payment and collection of child support was therefore a private matter between the parents. That arrangement presumably had its benefits, but it also carried risks: child support debts that arose between the parents due to the overpayment or underpayment of child support would not automatically be recovered by the CSA.[1]

   [1]If child support arrears had been owing when Ms Forst applied to have the CSA collect the ongoing child support payable, she could have applied to have at least a portion of those arrears collected, depending on the period over which the arrears accrued: section 28A of the Registration Act. There is no corresponding provision for the crediting of overpayments.

9. Ms Forst’s application to have the CSA collect the ongoing child support payable was made pursuant to section 25 of the Registration Act. The requirements of that section were clearly satisfied in this case. The CSA was required to register the ongoing child support payable for collection. The ongoing child support payable became a debt that Mr Forst owed to the CSA: section 30 of the Registration Act. However, paragraph 28(1)(c) of the Registration Act relevantly grants a discretion concerning the date from which to register the ongoing child support payable for collection. If the evidence had established that Mr Forst’s fortnightly payment of child support on 3 February 2021 had a prospective component, it might have been appropriate to register the ongoing child support payable for collection from a later date. For example, if the payment on 3 February 2021 had been in respect of the period from 3 February 2021 to 16 February 2021, it might have been appropriate to register the ongoing child support payable for collection from 17 February 2021.

10. On 2 March 2021, Mr Forst contacted the CSA and it made notes of the conversation:

    He always pays on Wednesday - however he is not certain if he is paying in arrears or in advance. He has never really discussed this with Ms Forst what period of time it is for.

11. At the hearing, Mr Forst confirmed that information. Given that uncertainty and the fact that Ms Forst’s application for collection was made approximately one week after one payment and one week before the next payment, the decision to register the ongoing child support payable for collection from the date on which the application was lodged was the preferable decision.

12. Mr Forst applied to have the payments that he made on 3 February 2021 and 17 February 2021 credited against his liability to the CSA pursuant to section 71 of the Registration Act. Such payments are called non-agency payments. One of the requirements of section 71 is that the payee (i.e. Ms Forst) intended the payment to be so credited. She told the CSA that she agreed to the payment made on 17 February 2021 being credited, but not the payment made on 3 February 2021, and there is no other evidence to suggest that she ever agreed to that payment being credited. The decision to not credit the payment made on 3 February 2021 as a non-agency payment was the correct decision.

13. Mr Forst also referred to a binding child support agreement that was registered with the CSA in 2020. It relevantly provides for the payment of periodic child support “as assessed by the Department of Human Services Child Support Agency”, and the payment of non‑periodic child support directly to third parties in respect of school fees, medical expenses, extracurricular activities and the like. Mr Forst noted that clause 15 of the binding child support agreement states:

    Any non-periodic child support payment made by Mr Forst which exceeds the proportion of the payment that he is obliged to make pursuant to this Agreement shall be credited against any relevant administrative assessment of child support for the children under the Act.

14. At the hearing, Mr Forst acknowledged that the payment made on 3 February 2021 was a payment of periodic child support. In my opinion, that acknowledgement was properly made. Clause 15 therefore does not apply to that payment.

15. For those reasons, the decisions to register the ongoing child support payable for collection by the CSA from 9 February 2021, and not credit the payment of $300 made on 3 February 2021 against Mr Forst’s child support liability to the CSA, will be affirmed.

DECISIONS

The decisions under review are affirmed.