Gofton and Colborn (Child support)

[2021] AATA 2429

Gofton and Colborn (Child support) [2021] AATA 2429 (10 June 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/BC021161

APPLICANT:  Mrs Gofton

OTHER PARTIES:  Child Support Registrar

Mr Colborn

TRIBUNAL:Member A Byers

DECISION DATE:  10 June 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – collection method – application for employer withholding to cease – whether application ought to have been accepted – 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. Mr Colborn is the parent liable to pay child support to Mrs Gofton for their children [Child 1] and [Child 2].  The children are in Mrs Gofton’s sole care.

2. As will be clarified below, the present matter is not without confusion.  According to the Child Support Agency (CSA), it decided on 13 January 2021 to accept Mr Colborn’s election not to have his enforceable child support liability collected directly from his wages.  In the alternative, Mr Colborn agreed to pay his child support directly to the CSA by the seventh day of each month.

3. On 1 April 2021 an objections officer disallowed Mrs Gofton’s objection.  

4. On 6 April 2021 Mrs Gofton sought review of the objections officer’s decision and the Tribunal heard the matter by conference telephone on 10 June 2021.  The parties gave sworn evidence.  The CSA provided the ‘Section 37(1) Statement and Documents’, comprising folios 1 to 62 (marked Exhibit 1).   

CONSIDERATION

1. Although no details have been provided in the hearing papers, I presume that, according to CSA records, it was collecting Mr Colborn’s child support in accordance with section 43 of the Child Support Registration and Collection) Act 1988.[1]Under section 43 where the payer of an enforceable child support liability is an employee, the CSA is (as far as practicable) to collect the child support by withholdings from the payer’s salary or wages.  To give effect to this requirement, section 45 empowers the CSA to instruct an employer to deduct the child support figure from the payer’s salary or wages.  Section 46 then imposes a duty on an employer to make the deductions and remit them to the CSA.

   [1] All references are to this Act unless otherwise stated.

2. Under section 44 the payer can elect that employer withholding cease.  Provided the CSA is satisfied that the payer is likely to make timely payments to the CSA (and certain other preconditions apply that are not presently relevant), it must give effect to the election.

3. The confusion in the present matter is that, according to Mr Colborn, his employer has never deducted money from his wages for child support.  Instead Mr Colborn himself has made the payments directly to the CSA.

4. When Mr Colborn contacted the CSA on 13 January 2021, the child support account balance at 7 December 2020 was $0.  That is, Mr Colborn’s child support payments were up to date and his child support payable on 7 December 2020 was paid.  Mr Colborn’s evidence is that his intention in contacting was to explain he was unable to meet his child support payment for 7 January 2021 and to seek an extension of time for payment.  His reason for being unable to meet the payment was financial difficulty stemming from the fact his partner was temporarily unable to work due to illness.

5. The officer Mr Colborn spoke to plainly understood he was electing, in accordance with section 44, to have employer withholding stopped and to make payments directly to the CSA thereafter.  As explained below, the file note made (with abbreviations expanded) reveals the problem that has occasioned Mrs Gofton’s review application:

   Decision on Election for employer withholding not to Apply

   Election received from Mr Colborn
   Reason for election for employer withholding not to apply:
   ‐ Doesn't want the employer involved.

   Details of employment:
   ‐ [Employer]

   Evidence for decision:
   Are Payments up to date ‐ No
   Reasons(s) why an election might be accepted with outstanding arrears:
   ‐ payment arrangement in place to address arrears.
   Are future payments likely to be made in a timely manner? ‐ Yes
   Details of how the payments will be made to Child Support:
   ‐ Bpay
   …
   Based on the above factors, my decision is that the election is accepted.
   Reason(s) for accepting this election:
   ‐ Customer advise he would make the payment and if he has any issues he will contact CS to advise.

   Mr Colburn has been advised that:

   * The next payment of $865 is due on 07/03/2021

10.  The CSA officer was evidently aware that the usual child support payment due from the employer by 7 January 2021 had not been remitted.  However, as the officer thought employer withholding was in place, it is unclear why they did not query the non-payment.  The answer is apparent if, as Mr Colborn states, there never was a withholding arrangement in place.

11.  The arrears payment arrangement the CSA officer referred to has not been included in the hearing papers.  In any event, I understand Mr Colborn was required to pay $150 on the 13^th of each month in addition to the child support normally payable on the seventh of each month.  Mr Colborn indicated he was to pay four additional instalments to make up the shortfall, the last due on 13 June 2021 (which he fully intends to pay).

12.  Mrs Gofton pointed out that the above arrangement omitted to address the child support payment due on 7 February 2021.  However, Mrs Gofton said, despite this, the CSA subsequently sent the parties a notice (which again is unfortunately not included in the hearing papers) to the effect Mr Colborn was to separately pay the February instalment.  Mr Colborn concedes he has not made this payment separately and I understand his reason for not doing so is he was following the CSA officer’s instruction.

13.  As Mrs Gofton pointed out, the February 2021 instalment remains outstanding and I indicated to Mr Colborn that this needed to be paid and that, if there was any problem meeting the payment, he needed to contact the CSA.

14.  Assuming there was a formal employer withholding requirement in place prior to 13 January 2021, in my view the decision under section 44 to accept Mrs Gofton’s election to pay directly was appropriate.  In this regard, it appears as a matter of fact that Mr Colborn had already been meeting his child support liability by direct payments and there was no indication at the time he was not committed to meeting his future liability as and when due.  I accept the subsequent non-payment of the February 2021 instalment was due to confusion generated by the CSA and not a failure on Mr Colborn’s part.

15.  The decision under review will accordingly be affirmed.  As I think Mrs Gofton is aware, a resumption of employer withholding would in any case not “unscramble the egg” regarding the February 2021 instalment (or the delay in meeting the January 2021 instalment under the repayment arrangement with the CSA).  As noted, the February 2021 instalment is a matter Mr Colborn will address separately.   

DECISION

The decision under review is affirmed.