Hopper and Bligh (Child support)

[2019] AATA 5517

Hopper and Bligh (Child support) [2019] AATA 5517 (28 August 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC016746

APPLICANT:  Mr Hopper

OTHER PARTIES:  Child Support Registrar

Ms Bligh

TRIBUNAL:Member M Baulch

DECISION DATE:  28 August 2019

DECISION:

The tribunal set aside the decision under review and, in substitution, decided that the amount of $770.30 owed by Mr Hopper under an enforceable maintenance liability as at 19 November 2018 is to be discharged pursuant to paragraph 38A(3)(b) of the Child Support (Registration and Collection) Act 1988.

CATCHWORDS

CHILD SUPPORT – opt-out of arrears – whether an election was made by the payee to opt-out arrears owed by the liable parent – election was made appropriately – arrears are to be opted out – decision under review set aside and substituted

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 the child support assessment applying to Mr Hopper and Ms Bligh in respect of their two children, who were born in 2012 and 2015.

2. The Child Support (Assessment) Act 1989 provides for an administrative assessment of the child support payable by one separated parent to the other.  It uses a statutory formula which contains variables such as the parents’ incomes, the number of children, their ages and the percentages of care.

3. On 19 November 2018 Ms Bligh contacted the Department of Human Services – Child Support (the Department) and requested that the administrative assessment of child support be ended.  She also requested that the amount of $770.30 owing under that assessment that was still outstanding, which the Department was to collect on her behalf, be discharged.

4. On 19 November 2018 the Department decided to end the child support assessment and on 20 November 2019 the Department further decided to discharge arrears owed by Mr Hopper of $770.30.

5. On 26 November 2018 Ms Bligh contacted the Department indicating, amongst other things, that she no longer wished to discharge the arrears of $770.30 and was advised that she needed to make an objection, which she did on 15 February 2019.

6. On 3 June 2019 that objection was allowed, and it was determined that the arrears would not be discharged, the effect being that Mr Hopper was required to pay the Department the amount of $770.30 (the decision under review).  Mr Hopper has now applied to this tribunal for an independent review of the Department’s decision.

7. A hearing into the application for review was held by the tribunal on 28 August 2019. Mr Hopper and Ms Bligh both participated in the hearing by conference telephone and both gave sworn evidence during the hearing. A representative of the Child Support Registrar did not participate in the hearing. The tribunal had before it relevant documents provided to it by the Department pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, which were labelled folios 1 to 161, copies of which both parties confirmed they had received prior to the tribunal hearing. 

ISSUES

1. The statutory provisions relevant to this review are found within the Child Support (Registration and Collection) Act 1988 (the Act).

2. The issue which arise in this case is whether or not the amount of $770.30 owed by Mr Hopper under a child support assessment which ended on 19 November 2018 can be enforced by the Department.

CONSIDERATION

1. Unless the payee of a registered maintenance liability has elected, in their child support assessment application, that the liability is not enforceable (that is, the child support is collected privately and not by the Department) the Department must collect that liability on the payee’s behalf (sections 23 and 24 of the Act).  In this instance, no such election was made at the start of the child support case and Mr Hopper’s child support liability was being enforced (or collected) by the Department from the start of the child support assessment applying on 4 April 2018.

2. At a later date, the payee of the liability may make an election that the Department no longer enforce (or collect) the liability on their behalf (subsection 38A(1) of the Act).  In doing so, they can also request that any amount outstanding on the day the liability ceases to be enforceable be discharged.  Subsection 38A(2) of the Act says that an election under section 38A must be made in the manner specified by the Child Support Registrar.

3. The Child Support Guide, at 6.2.1, states the following:[1]

   Generally, the Registrar will accept information in other than written form wherever it is practical to do so. Exceptions to this policy occur where:

   ·there are legal or other requirements that the information be taken in writing

   ·there are specific circumstances that suggest information should be taken in writing.

   There is no requirement for a person to make an election under section 38A in writing. I find that the statements made by Ms Bligh during the telephone call to the Department on 19 November 2018 were sufficient to constitute an election under section 38A to discharge the arrears of $770.30 owing when the child support case was ended.

   [1] Guide Support Guide, Guides to Social Policy Law, Department of Social Services, version 4.42

4. Paragraph 38A(3)(b) of the Act says that when such an election is made, the Department must, within 28 days, vary the Child Support Register such that the amount owing when the liability ceased to be enforceable ceased to be a debt due to the Commonwealth.   The Department did this on 20 November 2018 and the outstanding arrears were removed from the Child Support Register.

5. There is mention within the file notes of a “cooling off period”.  A letter sent on 19 November 2018 indicated that a seven day cooling off period applied during which Ms Bligh might change her mind.  However, the file note of Ms Bligh’s contact with the Department on 19 November 2018 indicated that, if information was received from Centrelink, the request might be processed without waiting to the end of the “cooling off period”.  Information was received from Centrelink that same day and the request to discharge the arrears was processed the following day.   

6. The “cooling off period” referred to in the file notes would appear to be some form of Departmental policy.  There is no reference to it in the legislation and thus I am not bound by this policy.[2] 

   [2] Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634

7. Once a valid election is made, the Department must discharge the arrears within 28 days.  There is no discretion which would permit another outcome or, once the arrears have already been discharged, allows a change of mind on behalf of the person who made the election. 

8. I therefore found that the Department correctly discharged the amount of $770.30 owed by Mr Hopper under the child support liability on 20 November 2018.  Once that amount was discharged, it is not possible for Ms Bligh to reverse the election she made on 19 November 2019.  Therefore, and for these reasons, I decided to set aside the decision under review and substitute my own decision.

DECISION

The tribunal set aside the decision under review and, in substitution, decided that the amount of $770.30 owed by Mr Hopper under an enforceable maintenance liability as at 19 November 2018 is to be discharged pursuant to paragraph 38A(3)(b) of the Child Support (Registration and Collection) Act 1988.