Gomer and Farran (Child support)

[2019] AATA 1698

Gomer and Farran (Child support) [2019] AATA 1698 (23 April 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/AC015827

APPLICANT:  Mrs Gomer

OTHER PARTIES:  Child Support Registrar

Mr Farran

TRIBUNAL:Member J Longo

DECISION DATE:  23 April 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – non-agency payment – prescribed payment of rent on former family home – whether discretion to refuse to credit an amount should be exercised – decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed 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. This application for review is about whether payments made by Mr Farran should be credited as payment towards his child support liability.

2. Mr Farran and Mrs Gomer are the parents of [Child 1]. Mr Farran is the parent liable to pay child support to Mrs Gomer.

3. Mr Farran made payments totalling $2,500; he then applied to child support for these payments to be credited towards his child support liability.

4. On 2 November 2018 the Department decided to refuse to credit the amount of $2,500 towards his child support liability. On 6 November 2018 Mr Farran objected to the Department’s decision. On 18 January 2019 an objections officer partly allowed Mr Farran’s objection and decided to credit the amount of $2,000 as a prescribed non-agency payment.

5. On 29 January 2019 Mrs Gomer applied to this tribunal for a review of the objection decision. On 23 April 2019 the tribunal conducted a hearing. Mr Farran and Mrs Gomer spoke to the tribunal and gave sworn evidence. The tribunal received documents (numbered 1 to 110) provided by the Department. Copies of these documents were provided to both parties by the Department prior to the hearing.

CONSIDERATION

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

2. Section 71A of the Act states that if a payer makes a payment to a third party in satisfaction of a liability and it is intended by both to be in complete or partial satisfaction of the payer’s child support liability, the amount can be credited against the payer’s liability as a non-agency payment.

3. The Department information provided to the tribunal shows that [Child 1] was in Mrs Gomer’s care at the time of Mr Farran’s application for the non-agency payments.

4. It is not in dispute, and the tribunal finds accordingly, that Mr Farran and Mrs Gomer never discussed the payments by Mr Farran totalling $2,500, being rent for the [property], to be made in lieu of Mr Farran’s child support liability. The details of these payments are as follows:

   18 May 2018: $1,000 Rent payment to [A company]

   1 June 2018: $1,000 Rent payment to [A company]

   15 June 2018: $500 Rent payment to [A company]

5. Mrs Gomer stated that she disagreed with the decision to credit these payments as non-agency payments because she was not residing at the property. During the period from 7 May 2018 to 10 June 2018, she had moved to her mother’s house because of domestic violence. Mrs Gomer doesn’t know who was residing at the property and believes no-one was residing in the property during this period. Mrs Gomer referred to a sworn statement provided to the Department from her mother which confirms she was residing at her mother’s home. Mrs Gomer stated that she stayed at her mother’s house with [Child 1] and her [other] children went to live with their father during the period. Mrs Gomer referred to a sworn statement provided to the Department from her [children’s] father which confirms they were residing with him during the period.

6. During the period, as all the utilities were in her name, she placed these on hold while she was not residing at the [property] so she could transfer these services to her new property. Mrs Gomer confirmed she still had the keys to the property and that she returned to the property to collect some possessions and then on 10 June 2018 to move her belongings to her new property. Mrs Gomer stated she was granted an interim intervention order from 7 May 2018 which was subsequently withdrawn. Mrs Gomer stated that there was nothing preventing her from staying at the property but she was afraid that Mr Farran would take [Child 1], notwithstanding the intervention order, as there were no custody orders in place and so decided not to remain at the property.

7. Mr Farran stated that he required permission to enter the property during this period and collect his belongings and he was not residing there or able to use the premises. When he was escorted by police to do this, all of Mrs Gomer’s belongings were still in the property. In relation to the hearing at court, the prosecutor stated that she was still in the [property] and was ordered to vacate by 10 June 2018. Mr Farran stated that he returned to reside at the property on 13 June 2018. Mr Farran stated that he didn’t have access to the property due to the intervention order but was required to pay rent. He has relied upon the information provided at Court in relation to his non-agency payments claim. Mr Farran stated that Mrs Gomer was required to return the keys but this did not occur and the locks needed to be changed.

8. Section 71C of the Act also allows for some non-agency payments to be credited and it is not necessary for there to be mutual intention between the parties. At the time of these payments, the rental payments on behalf of Mrs Gomer met the criteria. Payments of this type can be considered under section 71C of the Act regardless of the intentions of the parties. Thus, the payments by Mr Farran totalling $2,000 towards the rent of the [property] in which Mrs Gomer was residing can be considered under section 71C of the Act.

9. In addition to the payments being prescribed under the regulations, the payer must have less than regular care of the children for the payment to meet the requirements under section 71C of the Act. In this case, Mr Farran had less than regular care of [Child 1] in accordance with Department information, therefore paragraph 71C(1)(ba) of the Act is met. This means the amount can be credited as a non-agency payment.

10. However, section 71D of the Act gives a discretion to refuse to credit an amount under section 71C in the circumstances of the particular case. This provision gives the tribunal an unfettered discretion to refuse to credit the payments. The tribunal could not locate any particular case law indicating the types of considerations in deciding whether to exercise the discretion under this section. The Agency policy guide provides little guidance other than to provide a list of examples which are of no relevance to this case.

11. Mrs Gomer stated that the payments ought not to be credited against the child support liability because she was not residing at the property. Mr Farran states that her belongings were in the property and he was not permitted to be there due to the intervention order. Mrs Gomer confirmed that there was nothing preventing her from remaining in the property.

12. In determining whether the discretion under section 71D of Act should be exercised, the tribunal noted that Mr Farran was unable to use the property until after 10 June 2018. The tribunal also took into account Mrs Gomer’s evidence that there was nothing preventing her from residing at the property and that she accessed the property on two occasions during this period. The tribunal is mindful that the legislative scheme intentionally provides for payments to third parties to be credited as child support unless the particular circumstances warrant another outcome. In the particular circumstances of this case, considering the factors set out above and the history of the matter, the tribunal has decided not to exercise its discretion under section 71D. In the circumstances, the payments of rent totalling $2,000, ought to be credited as prescribed non-agency payments.

DECISION

The decision under review is affirmed.