Hesney and Roberts (Child support)

[2018] AATA 3282

Hesney and Roberts (Child support) [2018] AATA 3282 (24 July 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/MC014129

APPLICANT:  Mr Hesney

OTHER PARTIES:  Child Support Registrar

Ms Roberts

TRIBUNAL:Member C Breheny

DECISION DATE:  24 July 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS

Child support - Application for collection of unpaid amounts during a specified period - All amounts paid - 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. Ms Roberts and Mr Hesney are the separated parents of [Child 1], [Child 2] and [Child 3]. A child support case has been registered with the Department of Human Services – Child Support (the Department) since 19 August 2016. Mr Hesney is the parent liable to pay child support to Ms Roberts and child support was privately collected since that time.

2. On 16 August 2017 Ms Roberts applied to the Department for collection of child support on the basis that Mr Hesney had stopped paying child support. Ms Roberts asked that the Department collect child support arrears for a period of 31 days, from 16 July 2017 to 15 August 2017. Notices issued on 11 September 2017 indicate that the Department accepted Ms Roberts’ application and that Mr Hesney owed opt-in arrears of $124.04 for the period 16 July 2017 to 15 August 2017.

3. On 13 December 2017 Mr Hesney objected to the decision stating that he did not owe any child support arrears. He was granted an extension of time to lodge the objection on 9 March 2018. On 12 May 2018 an objections officer of the Department decided to allow the objection and determined that all payments made by Mr Hesney should be accepted in full as “non-agency payments” and that he did not owe any opt-in arrears.

4. On 21 May 2018 Mr Hesney applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal for an independent review of the objections officer’s decision. A hearing into the application for review was held on 24 July 2018. Mr Hesney attended the hearing in person and gave evidence on affirmation. Ms Roberts could not be contacted at the appointed time and did not participate in the hearing. A representative of the Child Support Registrar did not attend the hearing. 

5. I had before me the Statement and Documents provided by the Department under subsection 37(1) of the Administrative Appeals Tribunal Act 1975, received on 20 June 2018 (documents numbered 1–191).

6. I note here that Mr Hesney was agreeable to withdrawing the application for review. He did however continue to express concerns about possible opt-in arrears still outstanding. I have thus concluded that I should make a decision in this matter.

ISSUES AND CONSIDERATION   

1. The relevant legislation is the Child Support (Registration & Collection) Act 1988 (the Act).

2. Subsection 25(1) of the Act provides that a payee may apply for the registration of a registrable maintenance liability that was previously not registered because of an election made by the payee under subsection 24A(2) of the Act to not enforce the liability.

3. A payee who makes an application for collection under subsection 25(1) of the Act may also apply under subsection 28A(3) for any unpaid amounts payable under the liability in relation to a specified period to be treated as arrears amounts. 

4. The Registrar must accept the payee's application for collection of the amounts the payer (in this case Mr Hesney) has not paid in the three months immediately before the date the liability first becomes enforceable, provided that the Registrar is satisfied that the amounts have actually not been paid (section 28A and subsection 28A(4) of the Act refer). The Registrar is then required to make variations to the particulars entered in the Child Support Register (paragraph 28A(6)(b) of the Act), and section 30 of the Act provides that the effect of registration is that any amounts payable under a child support assessment are debts due to the Commonwealth by the payer.

5. In this case Ms Roberts made her first application to “opt-in” for collection of the child support liability on 16 August 2017. She also applied to have arrears collected in respect of a period of 31 days from 16 July 2017 to 15 August 2017 (folio 18).

6. The Department’s decision to accept Ms Roberts’ application to enable the maintenance liability to become enforceable (i.e. to opt-in for collection) is not an issue in this matter. The issue is whether there are arrears payable.

Mr Hesney’s evidence

1. Mr Hesney stated that he has always paid child support on a monthly basis around the middle (i.e. around the 15^th) of each month. He paid Ms Roberts directly and the payment covered child support for the entire month.

2. He made one payment of $2,000 on 14 July 2017, a payment of $2,300 on 25 August 2017, a payment of $500 on 22 September 2017 and a payment of $500 on 3 October 2017 (folio 115). He also made a further payment of $1,080 on 15 December 2017.

3. The payment made on 14 July 2017 was thus for the month of July and the payment made on 25 August 2017 was for the month of August. He therefore did not owe any opt-in arrears. He was also not required to pay any child support from 18 September 2017 to 13 November 2017, as he was unemployed (and the Department had accepted his income estimate of $0), yet he still made some payments to Ms Roberts.

Ms Roberts’ evidence

1. Ms Roberts did not participate in the hearing. Documentary evidence indicates that she agreed Mr Hesney made a payment of $2,300 on 25 August 2017 (folio 52). She accepted that $2,000 was for child support, but $300 was Mr Hesney’s 50% share of renovation costs to the house they still jointly owned.

2. Ms Roberts confirmed that all other payments were made as stated by Mr Hesney (folio 115). Ms Roberts also indicated that she was not particularly concerned about the opt-in arrears of $124.04 and would not pursue this matter further (folio 143).

The Department’s decisions

1. On 11 September 2017 a decision was made that Mr Hesney owed opt-in arrears of $124.04 for the period 16 July 2017 to 15 August 2017 (being 31 days). At the time Mr Hesney’s child support liability was $25,026 per annum or $68.51745 per day (folio 63).

2. The decision-maker calculated that the child support liability for the 31 day period amounted to $2,124.04.[1] The decision-maker did not take into consideration the payment made by Mr Hesney on 14 July 2017, as it was outside the claimed arrears period, but took into account the payment of $2,000 made on 25 August 2017, as Ms Roberts was happy to reduce the arrears amount by that payment (folio 52). As a result, it was decided that Mr Hesney owed opt-in arrears of $124.04 for the period 16 July 2017 to 15 August 2016.

   [1] 16 July to 31 July = 16 days x $68.51745 x 31 = $1,096.28; 1 August to 15 August = 15 days x $68.51745 = $1,027.76.

3. Mr Hesney’s enforceable, ongoing child support liability was thus entered as $1,096.28 for the period 16 August 2017 to 31 August 2017, plus $124.04 opt-in arrears. As a result, Mr Hesney owed $1,220.32 as at the date of the decision made on 11 September 2017 (folio 186).

4. The objections officer accepted that Mr Hesney made a payment on 14 July 2017 for the entire month of July and that the payment made on 25 August 2017 covered the entire month of August. Neither of those payments however were made during the claimed arrears period (from 16 July 2017 to 15 August 2017).

5. The payment made on 25 August 2017 ($2,000) could be accepted as a non-agency payment, as it was made during a time that child support was enforceable by the Department.

6. The objections officer relied on paragraph 28(1)(c) of the Act, which provides that a registered maintenance liability (if it is registered under subsection 25(2) such as in this case) becomes enforceable under the Act on such day as is determined, in writing, by the Registrar (being a day not later than 60 days after the day on which the Registrar receives the relevant duly completed form from the payee of the liability).

7. The objections officer determined that the liability should become enforceable from 1 August 2017, which is earlier, but not later, than the date that Ms Roberts lodged her application form. By doing so the objections officer accepted that Mr Hesney had paid child support for the month of July 2017 and had no outstanding arrears for that month, however child support now needed to be collected from Mr Hesney from 1 August 2017 onwards.

8. As noted above Mr Hesney’s initial liability was registered for collection from 16 August 2017 onwards ($1,096.28 to 31 August 2017). The objections officer thus added $989.22, being the remaining liability for August (from 1 August to 15 August 2017). This amounts to a total liability for August of $2,085.50, being Mr Hesney’s monthly child support liability at that time. The objections officer also credited the amount of $124.04 (being the initial arrears amount that had been added to Mr Hesney’s child support liability) and credited the amount of $2,000 paid on 25 August 2017 as a non-agency payment. In this way Mr Hesney’s payment made on 25 August 2017 was allocated against his liability for the entire month of August (as he wished it to be), rather than allocated partly against his liability from 16 July 2017 to 31 July 2017 and partly against his liability from 1 August 2017 to 15 August 2017, as the original decision-maker determined.

Conclusion

1. The Department’s decisions in this case have been somewhat unusual, complicated by Ms Roberts’ claim for opt-in arrears for a short period of 31 days, which fell between payments made by Mr Hesney. One payment was made before and one payment after the arrears period.

2. The parties did not dispute that the payments were made, that they were payments for child support and that they covered one calendar month.

3. In deciding that Mr Hesney’s child support liability should become enforceable from 1 August 2017 the objections officer accepted that child support liability was paid in full as at 31 July 2017, with no outstanding arrears. The payment made on 25 August 2017 was then allocated to Mr Hesney’s monthly child support liability (of $2,085.50) for the entire month of August. The objections officer thus correctly added $989.22 (for 1 August to 15 August 2017) to Mr Hesney’s child support liability on 12 May 2018 (folio 190). This was then offset by $2,000 (payment made on 25 August 2017).

4. All of the payments made by Mr Hesney were thus allocated as he wished them to be (July payment for the month of July, August payment for the month of August) and he incurred no disadvantage from the decision made by the objections officer.

5. For completeness I will note, had Mr Hesney’s payments been allocated as determined by the objections officer from the beginning, his child support liability and payments would have been recorded as:

Date	Child support liability	Payments made	Balance outstanding
1 August to 15 August 2017 16 August to 31 August 2017	$989.22 $1,096.28	$2,085.50
25 August 2017	$2,000	$85.50
1 September 2017 to 17 September 2017	$1,164.80	$1,250.30
22 September 2017	$500	$750.30
18 September 2017 to 12 November 2017	$0 liability	$750.30
3 October 2017	$500	$250.30
13 November 2017 to 30 November 2017	$823.20	$1,073.50
15 December 2017	$1,080	$6.50 credit
1 December to 31 December 2017	$1,392	$1,385.50
1 January to 31 January 2018	$1,392	$2,778.50
9 February 2018	$1,393	$1,385.50
1 February to 28 February 2018	$1,392	$2,777.50
15 March 2018	$1,500	$1,277.50
1 March to 31 March 2018	$1,392	$2,669.50
10 April 2018	$1,500	$1,169.50
1 April to 30 April 2018	$1,392	$2,561.50
1 May to 6 May 2018[2]	$403.65	$2,965.15
10 May 2017	$1,500	$1,465.15

[2] Mr Hesney’s child support liability from 7 May 2018 due to an increase in his income (folio 163).

1. This indicates that Mr Hesney had caught up with his child support liability when he made his payment of $1,080 on 15 December 2017. The final balance of $1,465.18 is the balance of Mr Hesney’s child support liability as at 12 May 2018, after the objections officer made their decision to add the increased liability for August 2017 and credit Mr Hesney’s payment (folio 190). Any currently outstanding arrears thus seem to be largely due to a missed payment, which should have been made about mid-January 2018 and not because of Ms Roberts’ application for collection and opt-in arrears.

2. Based on these deliberations I am of the view that the objections officer’s decision was the most appropriate decision in this case and I therefore affirm the decision under review.

DECISION

The decision under review is affirmed.