Grehan and Grehan (Child support)

[2018] AATA 1473

Grehan and Grehan (Child support) [2018] AATA 1473 (13 March 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2017/SC013105

APPLICANT:  Mr Grehan

OTHER PARTIES:  Child Support Registrar

Ms Grehan

TRIBUNAL:Member K Timbs

DECISION DATE:  13 March 2018

DECISION:

The Tribunal affirms the decision under review.

CATCHWORDS

Child support - Application for the collection of a registrable maintenance liability - Liability previously collected privately - No discretion to refuse the application - 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. Mr Grehan and Ms Grehan are the parents of [Child 1] and[Child 2]. At relevant times, the Department of Human Services made child support assessments for them (on behalf of the Child Support Registrar) in accordance with a binding child support agreement. Mr Grehan is the parent liable to pay child support.

2. On 1 October 2017, Ms Grehan applied for registration of that liability for collection by the Registrar. On 5 October 2017, the Department accepted the application and registered the debt on the Child Support Register.

3. On 17 October 2017, Mr Grehan objected to that decision. An Objections Officer of the Department disallowed the objection on 4 December 2017.

4. On 13 December 2017, Mr Grehan applied for review of that decision. The Tribunal heard the application for review on 2 March 2018.

RELEVANT LAW

1. The Registrar makes assessments of child support for child support periods under the Child Support (Assessment) Act 1989 (the Assessment Act) and registers and collects child support liabilities under the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).

2. The Assessment Act requires the Registrar to assess the annual and daily rates of child support payable by the liable parent (payer) to the carer entitled to receive child support (payee) for each day in a child support period (sections 69 and 93). The Registrar uses the child support formula or another provision in Part 5 to make an administrative assessment.

3. An administrative assessment may be modified by decisions “to depart from the administrative assessment of child support” by the Registrar (under Part 6A) or by a court (under Division 4 of Part 7). Those decisions and orders may determine the annual rate of child support or vary an element of the formula (sections 98S and 118).

4. In addition, Part 6 of the Assessment Act provides for parties to enter into child support agreements that relevantly include “provisions under which a party is to pay child support … in the form of periodic amounts” (section 84(1)(a)) or “any other matter that may be included” in departure orders made by a court (section 84(1)(c)). If the Registrar accepts a child support agreement, those provisions have effect as if they were provisions of a departure order made by a court (section 94(2)) and the Registrar must make the assessment under Part 5 in accordance with the provisions of the agreement as if they were a departure order.

5. When the Registrar makes an assessment, he must notify both parents. The amount specified as the daily rate of child support in the notice is then payable by the payer to the payee for each day in the relevant child support period (section 77 of the Assessment Act). However, the assessment is also a registrable maintenance liability under the Registration and Collection Act (section 17). If the Registrar registers an assessment on the Child Support Register, the amounts payable are debts due to the Commonwealth, rather than to the payee (section 30 of the Registration and Collection Act).

6. After the Registrar makes a child support assessment, he must register the liability (section 24) unless the payee elects to collect the liability privately (section 24A). A payee who makes such an election may later apply for registration of the child support assessment (section 25). If so, the Registrar must accept the application and register the assessment (section 28A). There is no discretion to refuse it on the first occasion the party makes such an application.

CONSIDERATION

Evidence and submissions

1. The Tribunal considered documents relevant to the decision under review provided by the Department and heard evidence from Mr Grehan and Ms Grehan at hearing. The Tribunal also considered written and oral submissions from Mr Grehan’ legal representatives (discussed below).

Registration of child support assessment

1. Mr Grehan applied for acceptance of the child support agreement on 24 March 2015. On 7 July 2016, the Registrar accepted the application and made an assessment in accordance with its provisions. At hearing, Ms Grehan confirmed she elected not to register the liability at that time. It follows that Registrar was obliged under section 28A of the Registration and Collection Act to accept her application for registration of the liability made on 1 October 2017. The Tribunal will affirm the decision under review for that reason.

2. Mr Grehan’ legal representatives said he was concerned he would have to pay child support twice because the agreement provided that he must pay child support “directly to the payee by deposit into the payee’s nominated bank account” (the payment method provision). They argued the requirement was enforceable as part of the agreement because it is a “provision … under which a party is to pay child support … in the form of periodic amounts” as provided for in section 84(1)(a) of the Assessment Act.

3. The Tribunal agrees that a plain English reading of the words in section 84(1)(a) might include a payment method provision. However, as noted above, all such provisions included in agreements have effect as orders made by a court to depart from the administrative assessment of child support under Division 7 of Part 4 of the Assessment Act. Under that Part, a court may determine an annual rate of child support (a periodic amount of child support) and, if so, the Registrar must amend an assessment in accordance with the order (section 119). There is no power under that Part to make orders for the method of payment of periodic amounts of child support. It follows section 84(1)(a) does not refer to provisions in agreements that provide for a specific method of payment of child support. Rather, it is limited to provisions that specify the amount of child support to be paid for a particular period. The submission that the payment method provision is enforceable against Mr Grehan is therefore misconceived.

4. For the same reason, the payment method cannot be included in an agreement under section 84(1)(c). The “other matter(s) that may be included” in departure orders made by a court (other than determination of the annual rate) are provisions that vary the elements of a formula assessment.

5. The payment method provision is not otherwise enforceable and the effect of section 30 is that Mr Grehan is not at risk of having to pay child support twice. As discussed above, the Registrar has a statutory duty to accept Ms Grehan’ application for registration and to register the assessment. That is the case whether or not the parties have previously agreed the debts arising from it would be paid in a specific manner.

DECISION

The Tribunal affirms the decision under review.