Gedye and Blant (Child support)

[2022] AATA 3997

Gedye and Blant (Child support) [2022] AATA 3997 (17 October 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC023872

APPLICANT:  Ms Gedye

OTHER PARTIES:  Child Support Registrar

Mr Blant

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  17 October 2022

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – whether employer withholding should not apply – 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. Ms Gedye and Mr Blant are the parents of [Child 1] (born March 2020).  There has been a child support assessment in place since 18 December 2020 with collection by the Child Support Agency from 1 February 2021.  Mr Blant is the liable parent under the assessment.

2. On 4 February 2022 the Child Support Agency made the decision for employer withholding to apply to the case.

3. On 11 February 2022 Mr Blant applied to the Child Support Agency for employer withholding to no longer apply and on 11 February 2022 the Child Support Agency made the decision that child support would no longer be deducted from his wages.

4. On 22 February 2022 Ms Gedye objected to this decision and on 14 April 2022 the Child Support Agency disallowed the objection (the objection decision).

5. On 11 May 2022 Ms Gedye applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

6. The Tribunal conducted a hearing into the application on 25 August 2022.  Ms Gedye and Mr Blant gave evidence on affirmation by Microsoft Teams audio.  The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (124 pages).

7. Following the hearing, the Tribunal directed the Child Support Agency to provide further potentially relevant information pursuant to section 33 of the Administrative Appeals Tribunal Act 1975.  A copy was distributed to the parties for their comment (C1–C7).  No further comments were received from Ms Gedye or Mr Blant by the date requested.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (the Act).

2. When a child support liability is registered under the Act for collection, the amount payable is a debt due to the Commonwealth and must be paid to the Child Support Agency, not the payee. The Child Support Agency is required to collect amounts in relation to deductible liabilities by making deductions from the salary or wages of the payer of an enforceable maintenance liability (subsection 43(2) of the Act).  This is known as employer withholding.

3. The payer can elect that employer withholding is not to apply (section 44 of the Act) and instead make voluntary manual payments direct to the Child Support Agency.  The Child Support Agency must accept this election if satisfied the payer is likely to make timely payments under the enforceable maintenance liability.

4. The issue which arises in this case is whether or not the Child Support Agency has made the legally correct decision to accept the application made by Mr Blant for employer withholding to no longer apply to his case.

CONSIDERATION

1. Ms Gedye told the Tribunal that Mr Blant had a long history of not paying his child support in a timely fashion.  Ms Gedye pointed out that Mr Blant was in arrears at the time he elected for employer withholding not to apply and had continuously been in arears.

2. Ms Gedye said that around October 2021 she had asked the Child Support Agency to apply employer withholding to the case to ensure consistency in child support payments for [Child 1], but Mr Blant was allowed to continue paying manually.  She said this was on the basis of assurances from Mr Blant that he would pay his child support on time but then in January 2022 he defaulted again, and the Child Support Agency began deducting child support from his wages.  Ms Gedye said she agreed with this decision.

3. Ms Gedye submitted that by cancelling employer withholding on 11 February 2022, the Child Support Agency was not following policy as set out in the Child Support Guide.  Ms Gedye argued that as Mr Blant was not making his monthly child support payments on time and had been in significant arrears since the child support case commenced, the Child Support Agency should not have approved his election for employer withholding not to apply.  Ms Gedye said, furthermore, because the Child Support Agency had revoked an earlier election for employer withholding not to apply because Mr Blant did not pay on time, he should have been prevented from making another election for six months.

4. Ms Gedye said it was her view that by cancelling employer withholding, the Child Support Agency was aiding a continuous pattern of financial abuse perpetrated by Mr Blant.  She said this was a form of domestic violence.  Ms Gedye added that this went against the standards of ethics in the public service and indicated bias within the Child Support Agency.

5. Ms Gedye told the Tribunal the payment history provided by the Child Support Agency was selective and omitted the full picture but nonetheless showed Mr Blant was not paying child support on time. She said this was an ongoing pattern of behaviour.

6. The additional evidence received from the Child Support Agency following the hearing shows the child support payment history from 4 February 2021.  The Tribunal notes that on 5 October 2021, the month in which Ms Gedye said she requested employer withholding to apply, Mr Blant made a payment of $416.50, leaving an outstanding balance of $45.74.  On 15 December 2021 Mr Blant made a payment of $436.06, leaving an outstanding balance of $312.52.  On 18 January 2022 Mr Blant made a payment of $462.50, leaving an outstanding balance of $214.94.  On 9 March 2022, as a result of employer withholding, a payment of $579.86 was received from his employer leaving an outstanding balance of $294.72.  On 16 March 2022 Mr Blant made a payment of $370.00, and on 7 April 2022 he made a payment of $44.61, leaving an outstanding balance of $0.  On 15 April 2022, 14 May 2022, 15 June 2022 and 15 July 2022 payments were made by Mr Blant, leaving balances of close to $0 on each occasion.

7. Ms Gedye said she had been advised in correspondence from the Child Support Agency that Mr Blant was to make child support payments on the 7th of every month.  Ms Gedye pointed out this had never been the case.  Ms Gedye said given his history, there was no basis to form the view that Mr Blant was likely to make timely payments and the decision to end employer withholding should never have been made by the Child Support Agency.

8. Ms Gedye said it was her understanding that employer withholding should have been applied to the case from the outset, particularly given the continuous arrears.  Ms Gedye reiterated that the Child Support Agency was not following policy by allowing Mr Blant to pay manually.  Ms Gedye said there was no reason for employer withholding not to be in place as most paying parents were linked in this way.

9. Mr Blant told the Tribunal he did not agree with employer withholding and wanted to pay child support voluntarily rather than being obliged to pay through deductions from his wage.  Mr Blant said there were a number of reasons he had previously been in arrears including back payments arising from the delay in processing the application for collection and other payments he was making to Ms Gedye arising from a court order.

10. Mr Blant agreed that initially his child support payments were to be made on the 7th of every month but after obtaining permanent employment on a full-time basis in March 2021, he had asked the Child Support Agency if he could make payments in the middle of the month instead.  Mr Blant said he did not default on his child support payment in January 2022 as described by Ms Gedye as the Child Support Agency had overlooked a payment he made on 18 January 2022.  Mr Blant said the Child Support Agency had acknowledged this error and then made the decision for employer withholding to end.

11. The Tribunal notes in evidence from the Child Support Agency a record of events on 24 February 2022 in relation to the payment history of Mr Blant.  The record states that contact had been recorded in August 2021, with Mr Blant to make child support payments by the 15th of the month.  The record goes on to state that on 15 December 2021 a payment was received from Mr Blant which was slightly higher than the amount expected and on 18 January 2022 a payment was received that was in line with the amount expected.  The Tribunal further notes in evidence a record of a conversation between Mr Blant and a child support officer on 28 February 2022 in which the child support officer states it was not appropriate to link Mr Blant to employer withholding as he made timely payments in December and January.  The child support officer goes on to confirm the Child Support Agency was aware he would make payments on the 15th of every month.

12. Mr Blant said he believed employer withholding had been imposed by the Child Support Agency on 4 February 2022, which was the first time this had occurred, because Ms Gedye had complained.  Mr Blant pointed out that since employer withholding had been removed on 11 February 2022, he had been making payments in accordance with the payment plan agreed to by the Child Support Agency.

13. The Tribunal finds that a decision was made by the Child Support Agency on 4 February 2022 to impose employer withholding and this was the first time it had been applied to the case.  On 11 February 2022 Mr Blant elected for employer withholding not to apply and the Child Support Agency made the decision to accept this request on 11 February 2022.

14. Subsection 44(1) of the Act states that if the payer of an enforceable maintenance liability elects that employer withholding is not to apply then the application must be granted if the Child Support Agency is satisfied the payer is likely to make timely payments.

15. Ms Gedye has argued that Mr Blant has a long history of not making timely payments of child support and was in arrears at the time he elected for employer withholding not to apply.  Ms Gedye believes the decision to end employer withholding was incorrect and contrary to policy set out in the Child Support Guide.  Mr Blant disagrees and submits that he was making his child support payments in keeping with an arrangement with the Child Support Agency and employer withholding had been applied on 4 February 2022 in error.

16. The Child Support Guide at 5.2.2 states in relation to elections to pay directly:

    Payer likely to make timely payments when electing employer withholding does not apply

    If a payer makes an election for Employer Withholding not to apply and the Registrar is satisfied that the payer is likely to make timely payments under the enforceable maintenance liability, the Registrar must accept the payer's election (CSRC Act section 44(1)).

    To determine whether a payer is likely to make timely payments under the enforceable maintenance liability, payers can be divided into 5 groups:

    ·First election by new payers before any payments due

    ·First election by payers, other than new payers, who do not have arrears

    ·First election by payers, other than new payers, who have arrears

    ·Subsequent election where previous election revoked because the payer did not make timely payments

    ·Subsequent election where the Registrar rejected the previous election

17. At the time Mr Blant made his election on 11 February 2022 for employer withholding not to apply there was an outstanding balance, according to the summary provided by the Child Support Agency, of $579.86.

18. As the election made by Mr Blant was the first election and he had arrears, the Child Support Guide, again at 5.2.2, states in relation to such payers:

    Includes payers, whether or not already linked to employer withholding, who:

    ·have not previously made an election

    ·were due to start making payments by a date which has already occurred, either for this enforceable maintenance liability or any other current or previous liability, and

    ·have arrears.

    The Registrar will be satisfied that a payer who has arrears is nevertheless likely to make timely payments, if the payer:

    ·made a reasonable proposal for paying off the arrears and the payer is keeping to the agreed arrangement, and

    ·is paying the normal monthly amount (that is, the monthly amount after excluding arrears) when each falls due.

19. Although not bound by policy as set out in the Child Support Guide, the Federal Court has held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation.

20. The Tribunal notes in evidence from the Child Support Agency that on 11 February 2022 Mr Blant agreed to make payments in monthly instalments to address his child support debt.  The payment history shows that by 7 April 2022 his child support balance was $0 and Mr Blant has been making his normal monthly payments since then.  The payment history also shows Mr Blant made child support payments on 15 December 2021 and on 18 January 2022.

21. The Tribunal is satisfied that Mr Blant was likely to make timely payments of child support when he elected for employer withholding not to apply and the evidence provided shows this was subsequently the case.

22. Ms Gedye has also pointed out that because employer withholding did not apply to the case initially and this was then revoked by the Child Support Agency because Mr Blant did not pay on time, he should not be able to make another election for six months.

23. In circumstances where employer withholding does not apply and the payer does not make timely payments under the liability, then employer withholding must be applied (subsection 44(5) of the Act).  The payer may not elect for employer withholding not to apply if, within six months, employer withholding started to apply because of a decision made under subsection 44(5) (subsection 44(7B) of the Act).

24. The Child Support Agency made the decision on 4 February 2022 for employer withholding to apply.  It could be argued that Mr Blant was, therefore, prevented from making an election under subsection 44(1) of the Act for six months from that date.  This could hold true if the decision made on 4 February 2022 to impose employer withholding was made under subsection 44(5) of the Act.  The Child Support Agency has acknowledged that Mr Blant was making timely payments under his liability and the decision for employer withholding to apply was made in error.

25. The Tribunal is satisfied that subsection 44(7B) of the Act does not apply in the circumstances of this case and there was nothing preventing Mr Blant from making his election on 11 February 2022.

26. The Tribunal finds that Mr Blant met the requirements under subsection 44(1) of the Act and his election for employer withholding not to apply must, therefore, be granted.

DECISION

The decision under review is affirmed.