Hathaway and Hathaway (Child support)

[2020] AATA 3661

Hathaway and Hathaway (Child support) [2020] AATA 3661 (2 July 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/MC019037

APPLICANT:  Mr Hathaway

OTHER PARTIES:  Child Support Registrar

Ms Hathaway

TRIBUNAL:Member J Longo

DECISION DATE:  2 July 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – non-agency payment - whether payment made to a third party in lieu of child support - intention of both parents - 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. This application for review is about whether payments made by Mr Hathaway should be credited as payment towards his child support liability.

2. Mr Hathaway made payments totalling $6,734.42 which he then applied to Services Australia – Child Support (the Department) to be credited towards his child support liability on 11 February 2020.

3. On 26 February 2020 the Department refused to credit the amounts. On 5 March 2020 Mr Hathaway objected to the Department’s decisions. On 12 May 2020 a Departmental objections officer disallowed Mr Hathaway’s objection and refused to credit the non-agency payments.

4. On 14 May 2020 Mr Hathaway applied to the Administrative Appeals Tribunal (the tribunal) for review. On 2 July 2020 the tribunal conducted a hearing. Mr Hathaway spoke to the tribunal via conference telephone and gave sworn evidence. Ms Hathaway did not participate in the hearing, as she did not respond when contacted. The tribunal received documents (93 pages) 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”). 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.

2. Mr Hathaway and Ms Hathaway confirmed that the collection of child support by the Department commenced on 22 July 2019. There is no dispute that Mr Hathaway made payments as follows:

Date	Amount	Purpose
15 July 2019	$1,570	Payee Rent
16 July 2019	$165.60	Medical
17 July 2019	$81.36	Insurance
20 July 2019	$2,179.39	Utilities
31 July 2019	$1,334.07	Payee Utilities
20 July 2019	$96	Payee Mobile
16 August 2019	$165.50	Medical
20 August 2019	$96	Payee Mobile
16 September 2019	$165.50	Medical
20 September 2019	$96	Payee Mobile
16 October 2019	$165.50	Medical
20 October 2019	$96	Payee Mobile
16 November 2019	$165.50	Medical
20 November 2019	$96	Payee Mobile
16 December 2019	$165.50	Medical
20 December 2019	$96	Payee Mobile

1. Mr Hathaway stated that he provided evidence of the payments to the Department and the payments were made to third parties and not directly to Ms Hathaway. Mr Hathaway stated that Ms Hathaway asked him to make these payments because she was advised by the Department that she would not receive child support for at least a month after July 2019 and she was told by Centrelink that they would not assist in the payment of these expenses. Mr Hathaway stated that Ms Hathaway told him that there would be a waiting period for any Centrelink payments and so to maintain basic accommodation for the children, he would need to make these payments.

2. Mr Hathaway confirmed that there was never any discussion regarding the payments being in lieu of child support. At the time he made the payments, he didn’t know that the Department would collect his liability directly from his employer and he never discussed this with the Department. Mr Hathaway stated that the $96 payment was for a mobile telephone and internet and the $165.50 payment was for the cost of private health insurance. Apart from the payment of the monthly health insurance costs, he did not make any payments of medical costs.

3. The tribunal is not satisfied that Mr Hathaway and Ms Hathaway discussed these payments and that they would be considered as child support. In the absence of evidence that there was any mutual intention by Mr Hathaway and Ms Hathaway that the payments would be credited against his child support liability, the tribunal cannot find that the payments were in lieu of child support. Accordingly, the tribunal cannot accept that the payments were intended by both Ms Hathaway and Mr Hathaway to be credited against Mr Hathaway’s child support liability as non-agency payments under section 71A of the Act.

10.Section 71C of the Act also allows for some non-agency payments to be credited. It is not necessary for there to be a mutual intention between the parties that the payments are treated in this way. To be credited under section 71C, the payments need to be one of the types of payments prescribed under the Child Support (Registration and Collection) Regulations 2018 (the regulations).

11.The regulations prescribe the following payments that can be considered as non-agency 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 the payee’s home; and

·     costs to the payee of obtaining and running a motor vehicle, including repairs and standing costs.

1. In addition to the payments being prescribed under the regulations, the payer must have less than regular care of the children for the payments to meet the requirements under section 71C of the Act. In this case, based on the information recorded in the Department records of Mr Hathaway and Ms Hathaway’s care, Mr Hathaway had less than regular care of the children. However, the payments made by Mr Hathaway do not meet the types of payments prescribed by the regulations.

13.The tribunal notes that some payments were made prior to 22 July 2019. These cannot be taken into account as they are prior to the registration for collection by the Department and cannot be considered.

1. Mr Hathaway has claimed the cost of private health insurance as a non-agency payment to be credited against his child support liability. While fees for essential medical and dental services can be considered as prescribed non-agency payments, the tribunal finds that private health insurance does not fit the criteria for the cost of essential medical or dental services as it is not the payment for these services.

2. Mr Hathaway also claimed costs paid for a mobile phone which Ms Hathaway was using. While the payee’s share of amounts payable for the payee’s home can be considered as prescribed non-agency payments, the tribunal finds that mobile phone costs do not fit the criteria for the payment of costs payable for the payee’s home, as the payment is not for these expenses. Mr Hathaway also claimed an amount of $1,334.07 for utilities, however there is no evidence to substantiate this amount in the documents provided. In addition, Ms Hathaway provided evidence to the Department that her utility accounts from July 2019 were in her mother’s name. As the tribunal cannot be satisfied that the above payment was made while an enforceable child maintenance liability was in place, the tribunal cannot consider the $1,334.07 payment as a prescribed non-agency payment for the costs for the payee’s home.

3. The tribunal therefore determines that the payments totalling $6,734.42 made by Mr Hathaway cannot be credited as payment towards his child support liability as non-agency or prescribed non‑agency payments and therefore the decision of the Department is correct.

DECISION

The decision under review is affirmed.