Huntingdon and Huntingdon (Child support)

[2019] AATA 3846

Huntingdon and Huntingdon (Child support) [2019] AATA 3846 (22 July 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC016426

APPLICANT:  Mr Huntingdon

OTHER PARTIES:  Child Support Registrar

Ms Huntingdon

TRIBUNAL:Member M Baulch

DECISION DATE:  22 July 2019

DECISION:

The tribunal set aside the decision under review and, in substitution, decided that Mr Huntingdon owes Ms Huntingdon child support of $273.93 in respect of the period 2 July 2018 to 30 September 2018.

CATCHWORDS

CHILD SUPPORT – opt-in arrears - whether there were unpaid amounts – periods to which payments relate – application for collection of unpaid amounts should only be partially accepted – 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 Mr Huntingdon’s liability to pay child support to Ms Huntingdon.

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

3. Mr Huntingdon and Ms Huntingdon are the separated parents of two children.  Since 11 January 2018 Mr Huntingdon has been assessed as liable by the Department of Human Services – Child Support (the Department) to pay child support to Ms Huntingdon in respect of those children. 

4. On 1 October 2018, Ms Huntingdon contacted the Department and requested that the Department collect Mr Huntingdon’s child support liability on her behalf.  She is also recorded as having requested that the Department collect outstanding child support amounts for the period 2 July 2018 to 30 September 2018.

5. On 16 October 2018 a Departmental employee decided to accept the request to collect child support on Ms Huntingdon’s behalf and, on 6 November 2018, accepted the request to collect arrears of child support for the period 2 July 2018 to 30 September 2018 that were determined to be the amount of $1,352.75 (the decision under review).

6. Mr Huntingdon objected to that decision and that objection was disallowed.  Mr Huntingdon 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 10 July 2019.  Mr Huntingdon and Ms Huntingdon both participated in the hearing by conference telephone and both gave evidence during the hearing.  A representative of the Child Support Registrar did not participate in the hearing. 

8. On 10 July 2019 the tribunal deferred determining the application for review, to request that the Department provide evidence as to Mr Huntingdon’s assessed child support liability for the period 2 July 2018 to 31 August 2018.  On 22 July 2019, the Department responded to the tribunal request and the tribunal determined the application for review.

9. The tribunal had before it relevant documents provided to it by the Department pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975, which were labelled folios 1 to 110.  The tribunal also had regard to documents lodged by Mr Huntingdon prior to the hearing and labelled folios A1 to A10.  At hearing, the parties confirmed that they had received copies of the documents prior to the tribunal hearing.

ISSUES

1. The statutory provisions relevant to this review application are found within the child support law, in particular the Child Support (Registration and Collection) Act 1988 (the Act).

2. The issue which arises in this case is whether or not Mr Huntingdon owes child support to Ms Huntingdon in respect of the period 2 July 2018 to 30 September 2018, and how much is owed.

CONSIDERATION

1. The payee of a registered maintenance liability may elect, 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), pursuant to section 24A of the Act. 

2. At a later time, the payee may apply to the Department for the liability to become enforceable (section 28A of the Act).

3. It is not in dispute, and I so found, that:

   ·      There is a registered maintenance liability in respect of Mr Huntingdon’s and Ms Huntingdon’s two children;

   ·      Ms Huntingdon had initially elected that the liability was not to be enforced; and

   ·      On 1 October 2018 Ms Huntingdon made an application to the Department for the liability to become enforceable.

4. The payee may also apply to the Department for any unpaid amounts payable under the liability, in relation to a specified period, to be treated as an arrears amount.  The specified period ends on the day before the liability becomes enforceable (subsection 28A(3) of the Act).  If the specified period does not exceed three months, the Department must grant the payee's application (subsection 28A(4) of the Act). 

5. Having regard to the Department’s records of Ms Huntingdon’s contact on 1 October 2018, I found that Ms Huntingdon applied for any unpaid amounts for the period for 2 July 2018 to 30 September 2018 (the relevant period) to be treated as arrears amounts.  The Department calculated that the liability for the period was $7,548.41 and determined that $6,195.66 of this amount had been paid directly to Ms Huntingdon, giving arrears owed by Mr Huntingdon for the relevant period of $1,352.75.

6. Mr Huntingdon disputes that $1,352.75 is owed.  He submitted at hearing that a payment made on 2 July 2018 was paid in advance, and it should be included in the amount he paid in the relevant period.  Mr Huntingdon also disputed that his liability for the period 2 July 2018 to 30 September 2018 was $7,548.41, submitting that it has been calculated incorrectly and should be $7,558.79.

Child support liability for the period 2 July 2018 to 30 September 2018

1. Mr Huntingdon asserted that the amount of his child support liability for the period 2 July 2018 to 30 September 2018 calculated by the Department, being $7,548.41, is incorrect. 

2. Having regard to the Department’s records, I determined that Mr Huntingdon’s liability to pay child support to Ms Huntingdon during the period 2 July 2018 to 30 September 2018 is as follows:

Period	Number of days	Daily liability	Amount
2 July 2018 to 31 August 2018	61 days	$83.06366	$5,066.88
1 September 2018 to 30 September 2018	30 days	$83.06366	$2,491.91
TOTAL	$7,558.79

1. I therefore found that Mr Huntingdon was required to pay child support totalling $7,558.79 to Ms Huntingdon during the period 2 July 2018 to 30 September 2018.

Child support paid by Mr Huntingdon for the period 2 July 2018 to 30 September 2018

1. Mr Huntingdon submitted that he had intended to pay his child support in advance, although it appears that this intent was never communicated to Ms Huntingdon.  It is undisputed, however, that Mr Huntingdon was paying his child support by fortnightly instalments.

2. The evidence shows that since the child support liability commenced on 11 January 2018, Mr Huntingdon has made the following payments prior to Ms Huntingdon seeking to enforce the liability on 1 October 2018:

15 Jan 18	$1,365.00	4 Jun 18	$1,524.88
28 Jan 18	$1,524.88	18 Jun 18	$1,524.88
12 Feb 18	$1,524.88	2 Jul 18	$1,524.88
26 Feb 18	$1,524.88	16 Jul 18	$1,032.61
12 Mar 18	$1,524.88	30 Jul 18	$1,032.61
26 Mar 18	$1,524.88	13 Aug 18	$1,032.61
9 Apr 18	$1,524.88	27 Aug 18	$1,032.61
23 Apr 18	$1,524.88	10 Sep 18	$1,032.61
7 May 18	$1,524.88	24 Sep 18	$1,032.61
21 May 18	$1,524.88

1. When determining the amount of child support Mr Huntingdon had paid for the relevant period, the Department disregarded the payment of $1,365 that was made on 15 January 2018, apparently because it was “calculated by [Mr Huntingdon] and therefore, [was] made for the period prior to the case being registered with us, being 5 December 2017 to 10 January 2018” [at folio 16].

2. I was not persuaded that the payment made on 15 January 2018 should be ignored.  While the amount paid was not the same as the assessed liability, the parents agree that it was paid for child support and Mr Huntingdon’s liability to pay child support had commenced on 11 January 2018, prior to that payment being made.  I acknowledge that the amount paid was less than the liability, but note that Ms Huntingdon always has the option of taking her own action to enforce the full amount of the liability for that first payment.

3. I therefore found that the payment made on 15 January 2018 was a fortnightly payment made in respect of a liability that commenced on 11 January 2018.  I consequently found that this payment was made for the period 11 January 2018 to 24 January 2018.

4. As payments were made fortnightly, I concluded that the subsequent payments were made for the fortnights that ended on 7 February 2018, 21 February 2018, 7 March 2018, 21 March 2018, 4 April 2018, 18 April 2018, 2 May 2018, 16 May 2018, 30 May 2018, 13 June 2018 and 27 June 2018.  Following this pattern leads me to conclude that the payment made on 2 July 2018 was in respect of the fortnightly period 28 June 2018 to 11 July 2018.

5. I therefore found that the child support paid by Mr Huntingdon to Ms Huntingdon in respect of the period 2 July 2018 to 30 September 2018 is as follows:

Date Paid	Period	Amount
2 July 2018	2 July 2018 to 11 July 2018 (10 days)	$1,089.20[1]
16 July 2018	12 July 2018 to 25 July 2018	$1,032.61
30 July 2018	26 July 2018 to 8 August 2018	$1,032.61
13 August 2018	9 August 2018 to 22 August 2018	$1,032.61
27 August 2018	23 August 2018 to 5 September 2018	$1,032.61
10 September 2018	6 September 2018 to 19 September 2018	$1,032.61
24 September 2018	20 September 2018 to 30 September 2018	$1,032.61
$7,284.86

[1] $1,524.88 ÷ 14 days x 10 days = $1,089.20

1. I consequently determined that the amount of child support paid by Mr Huntingdon directly to Ms Huntingdon during the period 2 July 2018 to 30 September 2018 was $7,284.86.

Conclusion

1. I have found that Mr Huntingdon’s child support liability for the period 2 July 2018 to 30 September 2018 was $7,558.79 and he paid $7,284.86 in respect of that liability directly to Ms Huntingdon.  I therefore found that Mr Huntingdon owes Ms Huntingdon $273.93[2] in child support for the period 2 July 2018 to 30 September 2018.

   [2] $7,558.79 - $7,284.86 = $273.93

2. Therefore, and for these reasons, I decided to set aside the decision under review and substitute my own decision to that effect.

DECISION

The tribunal set aside the decision under review and, in substitution, decided that Mr Huntingdon owes Ms Huntingdon child support of $273.93 in respect of the period 2 July 2018 to 30 September 2018.