Geodfrey and Aziminia (Child support)
[2024] ARTA 929
•13 November 2024
Geodfrey and Aziminia (Child support) [2024] ARTA 929 (13 November 2024)
Applicant/s: Mr Geodfrey
Respondent: Child Support Registrar
Other Parties: Ms Aziminia
Tribunal Number: 2024/SC028258
Tribunal:Member M Martellotta
Place:Perth
Date:13 November 2024
Decision:The Tribunal affirms the decision under review.
CATCHWORDS
CHILD SUPPORT – non-agency payment – termination of assessment – garnishee towards child support arrears – application for payments to be credited against child support liability – no agreement – discretionary payments – credit of internet costs refused – 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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.
Statement of Reasons
BACKGROUND
Mr Geodfrey and Ms Aziminia are the parents of [Child A]. There was a child support case which commenced on 14 July 2020 and ended on 21 December 2023 when the child turned 18 years. The child during the assessment was assessed as being in Ms Aziminia’s 100% care.
On 9 February 2024 Child Support recovered by way of garnishee an amount of $9,021.52 towards arrears of child support Mr Geodfrey owed. Mr Geodfrey lodged an application seeking that the same amount, $9,021.52, be credited as a non-agency payment.
The application was refused on 27 February 2024. Mr Geodfrey’s objection was disallowed on 11 July 2024.
Mr Geodfrey lodged an application for review with the Tribunal. The matter was fixed for hearing to be heard on 6 November 2024 by telephone. On 17 October 2024 Mr Geodfrey applied to have the hearing rescheduled. The Tribunal refused the application.
On 6 November 2024 Mr Geodfrey and Ms Aziminia attended a hearing conducted by telephone. They each provided evidence and submissions.
Other evidence considered by the Tribunal included hearing papers prepared and exchanged by Child Support and documents provided by Mr Geodfrey, numbered A1–A64. Post hearing Mr Geodfrey provided further written submissions; the Tribunal has also taken those submissions into consideration (A65-A66).
From 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
ISSUE TO BE DETERMINED
The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (the Act) and the Child Support (Registration and Collection) Regulations 2018 (the Regulations).
Child support legislation is interpreted by Child Support with the aid of the Child Support Guide (the Guide). The Tribunal may be guided by policy but is not bound to follow it.[1] The Federal Court[2] has observed that in the absence of any contrary statutory indication, lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task. A lawful approach allows the adoption of appropriate policy as a guide but not so as to control the making of the decision and the Tribunal adopts that approach.
[1] Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634.
[2] G v MIBP [2018] FCA 1229.
10. The issue which arises in this case is whether payments made by Mr Geodfrey are to be credited against his child support liability.
CONSIDERATION OF EVIDENCE AND STATUORY PROVISIONS
11. The Act provides that certain direct payments made by a payer can be credited against their child support liability. These payments may include direct payments made to a payee (section 71 of the Act) or payment made to a third person by the payer (section 71A of the Act).
12. Section 71 of the Act refers to the payee of an enforceable maintenance liability who receives from the payer an amount intended by both payer and payee to be paid in complete or partial satisfaction of an amount payable under the liability in relation to the child support enforcement period.
13. Section 71A deals with payments made to a third party by the payer which partially or completely satisfy a debt owed by the payee, the payer or both which is intended by both to be paid in complete or partial satisfaction of an amount payable under the liability in relation to the child support enforcement period.
14. These payments are referred to as non-agency payments. In both cases the Act requires that payment is made by a payer of an enforceable maintenance liability and that it is the intention of both the payer and payee that the payment is paid in complete or partial satisfaction of the amount payable under the liability.
15. Section 71C of the Act and section 19 of the Regulations allows Child Support to credit certain payments towards a payer’s child support liability regardless of the intention of the parents at the time the payment was made (that is, regardless of whether or not the payments were intended to be in lieu of child support), except if, at the time the payment was made, the payer had at least regular care of any of the children to whom the relevant administrative assessment relates to. Child Support refers to these payments as “prescribed non-agency payments”. Such payments must be of the types specified under the Regulations.
16. The Child Support Registrar (and on review the Tribunal) may refuse to credit amounts under sections 71, 71A or 71C of the Act if satisfied that, in the circumstances of the particular case, the amount ought not to be credited (section 71D of the Act).
17. An enforceable maintenance liability is a registered maintenance liability enforceable under the Act.[3] When a child assessment is made, it gives rise to a registrable maintenance liability. A payee may elect not to have the liability registered at the time of making the application (private collect), but they can later elect to have it registered (Child Support collect). As noted in the background, there was a child support case which commenced on 14 July 2020 and ended on 21 December 2023. In this case at all relevant times the liability was registered as Child Support collect. The Tribunal so finds.
[3] Section 4 of the Act.
18. According to Child Support records, on 9 February 2024 Mr Geodfrey wrote to Child Support stating that he had paid payments totalling $9,021.52 either to third parties or directly to the child. These payments included the following:
a)regular payments of between $100–$125 since July 2019 which he described as being to ensure a safe environment for the child; these appear to refer to house insurance payments paid to [Insurance company 1]. He attached bank statements for periods December 2019 to February 2024 highlighting insurance payments to [Insurance company 1] for a total amount that was not specified.
b)monthly payments of between $95–$100 for the child’s internet costs directly to the service provider. He attached a payment history for payments made between February 2023 to January 2024 totalling $1,755.
c)an urgent repair valued at $1,718,99. He attached a cheque foil dated 23 August 2019.
d)direct payments to the child by cheque of $200 a month between July 2023 to January 2024 totalling $1,600.
e)purchased a vehicle for $2,000, attaching a cheque foil dated 19 April 2023.
f)$550 to [a tutor], attaching cheque foils dated 27 July 2023, 4 September 2023 and 4 October 2023.
g)Passport Australia payment of $325.
h)laptop for the child costing $1,619.10, attaching a receipt dated 12 November 2023 and computer accessories for the child totalling $43.
i)$75 to [Statutory authority 1], attaching a receipt dated 10 February 2024 for bills dated 16 November 2023.
j)[Statutory authority 1] medical assessments totalling $477, attaching a receipt for $280 dated 16 February 2023.
k)$495 [grading fee] – attaching an invoice due 23 December 2023.
l)[an experience] dated 22 December 2023 for $1,005.
m)[ID card] costing $3888.88 in relation to security checks for the child’s enrolment in [a] course.
n)purchase of a watch, attaching a receipt of $385.
o)Purchase of Nike sports shoes, paid in cash totalling $136.
p)Payment for the child to participate in a [program] totalling $200.
q)$110 paid to the child to assist him the costs of lodging appeal submissions in relation to [an offence].
r)$100 paid in cash for medical prescriptions for the child.
s)$100 paid in cash for the child’s hair cuts.
t)$125 paid in cash for ‘meal support’ for the child.
19. Mr Geodfrey said that an amount equivalent to the amount garnished from his bank account should be credited. The Tribunal observes that some of the payments made by Mr Geodfrey reference dates before and after the commencement and conclusion of the child support case, which commenced on 14 July 2020 and ended on 21 December 2023.
20. Child Support contacted Ms Aziminia on 27 February 2024. She advised that she paid the mortgage on her home, explaining that the bank accounts provided by Mr Geodfrey showing mortgage payments is a joint account and she makes those payments.[4] Since separation, Mr Geodfrey has not contributed to the mortgage or costs and there was no agreement that any other payments he made either to the child or third parties were intended to be in lieu of his child support liability.
Were direct payments made by Mr Geodfrey to Ms Aziminia
[4] It does not appear Mr Geodfrey was relying upon mortgage payments.
21. The evidence does not identify that Mr Geodfrey made any direct payments to Ms Aziminia.
Were third party payments made by Mr Geodfrey
22. Mr Geodfrey provided evidence of payments made to third parties; these included some of the payments described in paragraph 18 of these reasons.
Enforceable maintenance liability
23. In order for direct payments to be credited there needs to be an enforceable maintenance liability in place at the time of the payments. As noted, the case commenced on 14 July 2020 and ended on 21 December 2023. It was registered as Child Support collect.
24. This meant that from 14 July 2020 to 21 December 2023, an amount payable under the assessment was a debt owed to the Commonwealth (Child Support).[5] These payments are usually paid or discharged by direct payments to Child Support but, as noted, the non‑agency payment provisions allow for certain direct payments made to a payee or third party to be credited against the amount payable despite section 30 of the Act. As noted in the case of Strauss and Strauss:[6]
It is clear that [sections 71 and 71A] relate only to payments which have been made either to the other party or to a third party in respect of a maintenance liability which is at that time registered under the Registration Act.
[5] Section 30 of the Act provides that when a registrable maintenance liability is registered then any amount payable is a debt owed to the Commonwealth.
25. The only payments relevant to consideration of Mr Geodfrey’s claim will be payments which were made at the time the maintenance liability was registered, which in this case is the period that began on 14 July 2020 and ended on 21 December 2023.
26. Post hearing Mr Geodfrey provided further written submissions which appear to be in response to evidence provided by Ms Aziminia at hearing. Those submissions do not raise any new or relevant evidence. Mr Geodfrey amongst other things, re-addresses his account of discussions facilitated by the family priest at the time of separation, re-states his intention to support the child in their various endeavours, provided further detail about his payment for internet services and expresses his concern that the legislation and accepted practice of the system is gender biased.
Mutual agreement
27. Mr Geodfrey stated that he and Ms Aziminia have not communicated since the end of their relationship in mid-2019. They have not had any direct communication about the circumstances in which he has paid the payments that he wants credited. He said he made many of these payments on the advice of his priest.
28. Ms Aziminia confirmed that she and Mr Geodfrey do not communicate. She said that there has never been any discussion or agreement that the payments made by Mr Geodfrey were intended to be lieu of child support. She said that Mr Geodfrey has unilaterally taken on the payments he has made, including payments he has made directly to the child or to third parties for services or goods received by the child.
Conclusions
29. Mr Geodfrey in both written and oral submissions explained that he undertook many of the payments either in response to direct requests made by the child, or on the advice of his family priest and also because of his perception that the child was not being adequately supported by the mother.
30. The only payments relevant are those which occurred when there was an enforceable maintenance liability, and which come within the definition in section 71A. As noted, some of the payments relied upon by Mr Geodfrey fall outside of that period. Also, in the Tribunal’s analysis many of the payments made by Mr Geodfrey do not come within the definition of section 71A because they cannot be characterised as payments made by Mr Geodfrey to a third person to satisfy a debt either owed by Ms Aziminia, himself or both of them. As noted, many were discretionary payments that Mr Geodfrey made directly to the child to facilitate various endeavours and requests made by the child.
The Tribunal in any event is not satisfied that any of the payments were intended by both Ms Aziminia and Mr Geodfrey to be paid in complete or partial satisfaction of an amount payable under the liability, in relation to the child support enforcement period. Both parents’ evidence was that they have not communicated with each other for some years and that there was no agreement or intention that the amounts paid by Mr Geodfrey were to be credited against his child support liability.
32. This means that section 71A of the Act has no application. The Tribunal is also satisfied that section 71 has no application.
Any other basis for the payments to be credited
33. The Tribunal further considered whether there was any basis for the payments to be considered prescribed non-agency payments. The payment must be a payment of the kind specified in section 19 of the Regulations (paragraph 71C(1)(b) of the Act). Section 19 of the Regulations specifies the following payments:
·child care costs for the child who is the subject of the enforceable maintenance liability;
·fees charged by a school or preschool for that child;
·amounts payable for uniforms and books required by a school or preschool 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;
·costs to the payee of obtaining and running a motor vehicle, including repairs and standing costs.
34. The Tribunal considered if any of the payments made by Mr Geodfrey are prescribed.
35. Mr Geodfrey said that he paid for the child to have extra tuition for [a school subject]. He said that this was provided by a tuition service. Ms Aziminia said that she met the costs of the child undertaking [another subject’s] tuition.
36. Ms Aziminia said that the child completed year 12 in [November] 2023. She said that after finishing school the child was considering various possible career options. His father suggested [Career option 1] as a possibility and undertook to meet costs associated with their [child] undertaking a course.
37. Mr Geodfrey confirmed that in consultation with their priest he suggested [Career option 1] as a possible career. He said he has paid for costs associated with perquisite requirements for enrolment; this included security checks, health checks, fees paid to [Statutory authority 1] and [grading] and [other costs].
38. One of the prescribed payments relate to school fees. In that regard, the Tribunal notes the Guide,[7] which provides:
Fees charged by a school or preschool for a child who is the subject of an enforceable maintenance liability.
This can include school fees and levies, but not payment for non-compulsory camps, excursions, additional tuition or boarding costs. A school is an institution that mainly provides primary or secondary education.
It includes an institution providing technical and further education where the payment is for a course of secondary education.
[7] 5.3.1.
39. The Tribunal concludes that neither the tutoring or the perquisite costs associated with the child seeking enrolment into a [Career option 1] course are payments relating to fees charged by a school or preschool.
40. Mr Geodfrey also references payments made for medical and optometrist consultations related to the perquisites for the child’s enrolment in a [Career option 1] course. The Regulations refer to fees for essential medical and dental services. The Guide[8] refers to essential consultation fees for services provided by medical and dental services and related treatments. The costs incurred in this regard relate to the child’s assessment for his application to an [Career option 1] course. The Tribunal concludes on that basis the costs do not relate to essential medical and dental services.
[8] ibid
41. Mr Geodfrey said that in the lead‑up to the medical examination, he paid $100 in cash for prescriptions for the child to deal with [some medical issues]. Ms Aziminia said she did not have any direct knowledge of those issues. There was no medical or other evidence providing detail about any prescribed treatment. Mr Geodfrey said he made the payment in cash. In the absence of independent evidence, the Tribunal is not satisfied that a payment of $100 was paid for essential medical costs.
42. It was agreed at hearing that Mr Geodfrey pays a contribution towards his share of the building and contents insurance. The evidence was that this is a policy held in joint names and relates to the former matrimonial home which remains registered in joint names. This is not a prescribed payment as it is not a payment being made by Mr Geodfrey of Ms Aziminia’s share of the home insurance.
43. Mr Geodfrey’s evidence is that he pays for the internet service at the former matrimonial home. His evidence is that between February 2023 to January 2024, he made payments totalling $1,755. He said the account is in his sole name. Ms Aziminia stated that Mr Geodfrey when residing in the property wanted a landline. He has a bundle which includes his personal mobile phone costs and his payment of that bundle includes the internet at the former matrimonial home. Ms Aziminia stated that she has otherwise met the mobile costs of the child.[9] The Guide[10] notes that payments may include the home phone portion of any phone or internet package, but it can only be paid in relation to a home in which for payee lives and is jointly or solely responsible.
[9] Mr Geodfrey provided further detail about the internet service in his post written submissions.
[10] Ibid.
44. Mr Geodfrey provided account statements for unlimited internet and payments of $135. Excluding one payment paid after the liability ended, the Tribunal concludes that an amount of $1,620 is a payment identified by the Regulations.
45. Mr Geodfrey also refers to a payment of $2,000 he paid towards the purchase of a car. At hearing he clarified that he paid that amount directly to the child who asked him to help him buy a car. Mr Geodfrey said he is not sure if the child bought a car. Ms Aziminia said that she transported the child to and from school. When he got his licence, he had use of her car and he did not buy his own vehicle. The Tribunal concludes that this is not a prescribed payment.
46. The Tribunal concludes that Mr Geodfrey’s other claimed payments are otherwise not prescribed by the Regulation.
47. The Tribunal has concluded that the only payment made by Mr Geodfrey which comes within payments prescribed by the Regulations is his payment of internet costs in the amount of $1,620. The Tribunal is satisfied that at the time the payments were made, Mr Geodfrey was the payer of an enforceable maintenance liability in relation to payment period and that at the time he did not have regular care of the child. [11]
[11] Subsection 71C(a) –(ba).
48. On the presented evidence it is not apparent that Mr Geodfrey has had previous payments credited as non-agency payments and, on that basis, whether any past payments exceed the amount payable under the liability for all past periods. The Tribunal notes that subparagraph 71C(1)(d) requires that at the time the Registrar applies section 71C the payer does not have at least regular care of the child to whom the assessment relates – the Tribunal observes that in this case the assessment has ended on 21 December 2023. The Tribunal also notes that it appears arrears have been accumulating since about 2021 and at the conclusion of the case arrears of $9,021.24 was outstanding. [12]
[12] The Tribunal notes that provisions in subsection 71C(3) which is subject to subsection 71C(4). These provisions do not allow an amount to be credited unless the payer has paid the remainder of the liable amount payable for the period. Subject to a situation where the payer subsequently pays the amount.
49. Where the conditions in section 71C(1) are met then the Registrar is required to credit the excess amount in accordance with the provision. However subsection 71C(1) is subject to section 71D.
50. Section 71D provides that there is a discretion to refuse to credit an amount if the decision‑maker is satisfied that in the circumstances of the particular case the amount ought not to be credited.
51. Mr Geodfrey’s application for an amount to be credited was made in response to Child Support recovering arrears owed on the assessment following the termination of the assessment when the child turned 18 years.[13] Ms Aziminia’s evidence is that when Mr Geodfrey left the former matrimonial home, he stated that that he wanted to retain ongoing responsibility for the internet costs. Mr Geodfrey told the Tribunal that he advised Child Support that he would continue to make those payments to support his [child’s] education. Ms Aziminia said that contrary to claims made by Mr Geodfrey she has continued to cover many of the child’s expenses despite arrears of child support accumulating.
[13] P122
52. On balance when taking into account the circumstances of this particular case as noted above, the Tribunal concludes that it is a proper exercise of the discretion to refuse to credit the payment of internet costs.
DECISION
The decision under review is affirmed.
| Date of hearing: | Wednesday, 6 November 2024 |
[6] [1998] FamCA 2.
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