Higgs and Shay (Child support)

[2018] AATA 3492

Higgs and Shay (Child support) [2018] AATA 3492 (12 June 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/HC013672

APPLICANT:  Mr Higgs

OTHER PARTIES:  Child Support Registrar

Ms Shay

TRIBUNAL:Deputy President J Walsh

DECISION DATE:  12 June 2018

DECISION:

The decision under review is varied so that the amount of unpaid child support for the period 12 June to 11 September 2017 is $1,669.61.

CATCHWORDS
Child support - Whether there were unpaid amounts of child support during a specified three months arrears period - Terms of a private agreement - The quantum of the unpaid amounts - Decision under review varied

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

1. The applicant father seeks review of an objection decision dated 5 February 2018 which determined he owed $2,027.96 in child support for the period 12 June to 11 September 2017. The CSA’s original decision had been to calculate $3,227.96 as owed for this period. However, the objection decision took account of six payments of $200 each the father had made to the mother in the relevant period, resulting in a reduction in the amount the CSA determined he owed. Neither parent disputes that it was appropriate to recognise those six $200 payments.

2. The father’s case is that the parents had a private agreement that he would pay the mother $200 per fortnight plus certain other outlays for things such as swimming, ballet and health insurance. The mother accepted there was an agreement in respect of the $200 payments. However, she denied that payments the father made for additional nominated items were intended to be in lieu of child support. 

3. The father’s liability for the relevant period here was $12,974 per annum, based on a provisional adjusted taxable income of $344,002. He made and had accepted an income estimate of $132,389 per annum with effect from 15 September 2017 in the child support assessment. However, income estimates cannot be applied retrospectively, so that his liability before this was assessed by reference to the higher income level. It was the child support administrative assessment, and not the private agreement, which governed the father’s liability for the relevant period: see section 77 of the Child Support (Assessment) Act 1989.

4. At hearing on 1 June 2018, the father relied on an email from the mother dated 15 September 2016 detailing the terms of the private agreement. He claimed he had made relevant payments (for example, for health insurance premiums) which ought to be taken into account. The mother denied she intended such additional payments should be so treated.

5. Because the father had failed to provide any supporting evidence of relevant expenditure, I gave him additional time after the hearing. I also allowed the mother time to respond to any evidence the father provided.

6. The father’s liability of $12,974 per annum under the child support assessment equates to $497.29 per fortnight. In my view, a fair reading of the terms of the private agreement (which are found in the mother’s email headed ‘RE: Child Support’) indicates that the mother was proposing that the father pay her $200 per fortnight and, in addition, he was to meet the expenses for the nominated additional items. This was the scope of the private agreement.

7. It follows I accept the father’s contention that allowance should be made for any such expenditure for nominated items in the relevant period. His material shows he paid $247.65 for Medibank private health cover on 12 June, 12 July and 14 August 2017. He also paid $113.35 for ballet fees in the relevant period. I note the Medibank payments were for family cover. The father explained at hearing that the single rate (which would cover him only) was just over $160 per month. In the circumstances, I allow $85 per month as referable to the children’s cover.

8. Accordingly, it is appropriate to recognise a further $358.35 paid by the father (3 x $85 + $113.35) in the relevant period. The decision under review is to be varied accordingly.    

DECISION

The decision under review is varied so that the amount of unpaid child support for the period 12 June to 11 September 2017 is $1,669.61.