Galbraith and Provisor (Child support)

[2021] AATA 5029

Galbraith and Provisor (Child support) [2021] AATA 5029 (25 November 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/MC022480

APPLICANT:  Mr Galbraith

OTHER PARTIES:  Child Support Registrar

Ms Provisor

TRIBUNAL:Member A Byers

DECISION DATE:  25 November 2021

DECISION:

The decision under review is varied so that:

1. Mr Galbraith’s total child support liability in the opt-in arrears period 7 April to 6 July 2021 was $1,179.71; and

2. when Ms Provisor lodged her application on 7 July 2021, Mr Galbraith’s unpaid child support in this period totalled $1,087.71.

CATCHWORDS

CHILD SUPPORT – opt-in arrears – calculation of amount unpaid – decision under review varied

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. Mr Galbraith is the parent liable to pay child support to Ms Provisor for [their child].  This follows a decision of the Child Support Agency (CSA) to accept Ms Provisor’s application for an administrative assessment of child support from 29 April 2020.

2. Ms Provisor initially elected to have Mr Galbraith’s child support liability registered for collection by the CSA but subsequently elected to have a private collection arrangement with Mr Galbraith.  However, at Ms Provisor’s request on 7 July 2021, the CSA decided to resume collection of child support from Mr Galbraith from this date.

3. Ms Provisor also indicated she wanted the CSA to collect arrears of unpaid child support for the period (the opt-in arrears period) of three months prior to her application (7 April to 6 July 2021).  The CSA decided to collect arrears and calculated that Mr Galbraith’s collectable unpaid child support for this period totalled $1,080.22.[1]  This involved total child support calculated at $1,172.22 less $92 the parties agreed was a payment in the nature of child support paid on or about 29 June 2021.

   [1] Ms Provisor initially indicated she wanted arrears collected for a period of nine months, which is possible only if exceptional circumstances are present.  Ms Provisor confirmed at hearing that she is only seeking arrears of three months and this review is accordingly restricted to this period.

4. On 24 September 2021 an objections officer disallowed Mr Galbraith’s review application. 

5. On 7 October 2021 Mr Galbraith sought review of the objections officer’s decision by the Tribunal and the matter was heard by conference telephone on 25 November 2021.  Both parties gave sworn evidence and the following material was before the Tribunal prior to hearing:

   -     the ‘Section 37(1) Statement and Documents’ comprising 228 pages (marked Exhibit 1).     

6. Mr Galbraith provided further documentation just prior to and post hearing which is not admitted due to a lack of relevance.

CONSIDERATION

1. The legislation relevant to this matter is contained in the Child Support (Registration and Collection) Act 1988.  Further references are to this Act unless otherwise stated. 

2. In general terms Division 3 of Part III sets out a regime whereby a person may again elect to have collection of a payer’s child support liability enforced by the CSA and in limited circumstances to have arrears collected.  Section 39 provides, as far as is relevant:

   39Application for variation to enable liability to again become enforceable under Act

   (1)If a registered maintenance liability is not enforceable under this Act because of an election made under section 38A or a decision by the Registrar under section 38B, the payee may apply to the Registrar for the liability to again become enforceable under this Act.

   …

   (5)The Registrar must grant the application unless the Registrar is satisfied that:

   (a)the payer of the liability has been complying with his or her child support obligations in relation to the payee; or

   (b)the payer of the liability has satisfactorily explained and rectified a failure to comply with his or her child support obligations in relation to a payee; or

   (c)there are special circumstances that exist in relation to the liability that make it appropriate to refuse the application.

3. Subsection 39(6) requires the CSA to specify a date (not later than 60 days after the payee’s application) on which the payer’s liability again becomes enforceable.  The date specified will (as in the present case) typically be the date of the application.

10.  Section 38A provides for a joint or unilateral election by a payee that the payer’s child support liability no longer be enforced.  Where an election under section 38A is reversed, subsection 39A(5) empowers the CSA to collect arrears owing for the period of three months before the application date. 

11.  As there is no enforceable maintenance liability during the opt-in arrears period, my view is that there does not need to be an express agreement between parents that monies paid either to a parent or third party during this period is child support.  However, as a bare minimum there should be an understanding that the payments are to cover a financial burden in respect of a child that the parent entitled to child support would otherwise have to meet or share.  

12.  As noted, on 7 July 2021 Ms Provisor applied for the CSA to again collect Mr Galbraith’s child support liability.  Ms Provisor also asked the CSA to collect arrears of unpaid child support for the opt-in arrears period of three months prior to her application (7 April to 6 July 2021).  The CSA decided to collect child support on Ms Provisor’s behalf and to collect arrears owing for the opt-in period. 

13.  Using CSA assessments, the following table sets out Mr Galbraith’s child support liability for the opt-in arrears period, including respective care percentages:

Period  Days   Care %           Care %           Daily rate       Totals

Mr Galbraith  Ms Provisor

07.04.21 to 30.04.21       24       28%                72%                $9.16085        $219.86

01.05.21 to 25.06.21       56       28%                72%                $13.31691      $745.75*

26.06.21 to 30.06.21       5         0%                  100%              $19.93703      $99.69

01.07.21 to 06.07.21       6         0%                  100%              $19.06913      $114.41^#

Totals  91  $1179.71

* the rate increase on 1 May 2021 resulted from the tax year of assessment changing from 2018/19 to 2019/20

# the rate decrease from 1 July 2021 resulted from the resumed use of Ms Provisor’s adjusted taxable income for 2019/20 following the expiry of an earlier estimate

14.  It will be noted the calculated total of $1,179.71 differs marginally from the CSA’s calculated figure (of $1,172.22).  I do not know how the CSA arrived at this figure, which (depending on the methodology used) seems on its face to depart from the conversion of daily rates to a period prescribed in regulation 15 of the Child Support (Registration and Collection) Regulations 2018.

15.  Mr Galbraith said his chief reason for seeking a review is his view that he and Ms Provisor had reconciled and were members of a couple from 20 February to 9 May 2021.  In this regard, the Child Support Guide at 2.10.1 explains that the CSA will make a “suspension determination” to the effect that child support is not payable during a period where parents reconcile (as members of a couple).  Where the period is six months or more the child support case is terminated.

16. Section 5 of the Child Support (Assessment) Act 1989 defines “member of a couple” as follows:

member of a couple means:

(a)  a person who is legally married to another person and is not living separately and apart from the other person on a permanent or indefinite basis; or

(b)  a person who is living with another person as the partner of the other person on a genuine domestic basis although not legally married to the other person; or

(c) a person whose relationship with another person (whether of the same sex or a different sex) is registered under a law of a State or Territory prescribed for the purposes of section 2E of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section, and is not living separately and apart from the other person on a permanent or indefinite basis.

17.  Only paragraph (b) has potential relevance in the present matter.  A requirement is that the parents be living with each other.  As I understand Mr Galbraith, he considers he and Ms Provisor were members of a couple from 20 February to 9 May 2021 because there were occasions of intimacy and socialising and attempts were made to revive the relationship through counselling.  However, as it is common ground that the parties were not living together in the opt-in arrears period, they were not members of a couple for child support purposes.

18.  Mr Galbraith also contends that he has made some payments in the nature of child support during the opt-in arrears period.  As noted, the parties agree Mr Galbraith made a payment of $92 as child support on or about 29 June 2021. 

19.  Mr Galbraith has supplied bank statements showing several transfers into Ms Provisor’s account.  Of these only one entry is inside the opt-in arrears period, namely, a payment of $200 styled “bills” made on 28 April 2021.  At hearing it was evident this payment had nothing to do with child support and Mr Galbraith does not contend to the contrary. 

20.  Although I understood Mr Galbraith to suggest he has made other payments covering food and other items associated with family outings, shoes and clothing, there is no evidence of these payments and no indication they were not payments made commensurate with his having 28% of [the child]’s care until 26 June 2021.  In the circumstances I find that Mr Galbraith made one child support payment of $92 in the opt-in arrears period.  This leaves unpaid child support arrears for this period of $1,087.71. 

21.  Accordingly, the CSA’s decision to grant Ms Provisor’s application for the resumption of collection of Mr Galbraith’s child support liability and to collect arrears for the period 7 April to 6 July 2021 is correct.  However, the decision to collect unpaid arrears of $1,080.22 for the arrears period will be varied so that the collectable figure is $1,087.71.

DECISION

The decision under review is varied so that:

1. Mr Galbraith’s total child support liability in the opt-in arrears period 7 April to 6 July 2021 was $1,179.71; and

2. when Ms Provisor lodged her application on 7 July 2021, Mr Galbraith’s unpaid child support in this period totalled $1,087.71.