Isaacs and Mullane (Child support)

[2019] AATA 4340

Isaacs and Mullane (Child support) [2019] AATA 4340 (19 July 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC016447

APPLICANT:  Ms Isaacs

OTHER PARTIES:  Child Support Registrar

Mr Mullane

TRIBUNAL:Member S Brakespeare

DECISION DATE:  19 July 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – non-agency payment – payment made while no enforceable maintenance liability – 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 Isaacs is the parent liable to pay child support to Mr Mullane in respect of their child [Child 1]. On 20 November 2018 Ms Isaacs made an application to the Child Support Agency for a number of payments she made to a third party to be credited against her child support liability.

2. On 26 November 2018 an officer of the Child Support Agency refused to credit against Ms Isaacs’ child support liability payments totalling $890.40 made by Ms Isaacs to a third party for school fees.

3. Ms Isaacs objected to the decision. An objections officer disallowed the objection on 11 April 2019.

4. Ms Isaacs lodged an application for review of the objection decision with the tribunal. A hearing was held on 19 July 2019. Ms Isaacs and Mr Mullane gave evidence on affirmation to the tribunal via conference telephone. The Child Support Agency provided the tribunal and the parties with a bundle of papers relevant to the review (170 pages).

5. Relevant aspects of the evidence and material before the tribunal will be referred to in the tribunal’s consideration of the issues which it has to decide.

ISSUE

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

2. The issue which arises in this case is whether payments Ms Isaacs made to a third party can be credited against her child support liability.

CONSIDERATION

1. When the Child Support Agency registers a child support liability for collection the amounts payable become a debt due to the Commonwealth and are payable to the Child Support Registrar under section 30 of the Act. In some circumstances the Child Support Agency may credit payments made directly to the payee or to a third party.

2. Section 71A of the Act provides for payments made by a payer of an enforceable maintenance liability to a third party to be credited against the payer’s enforceable maintenance liability if the payment is made to partially or wholly pay a debt owed by the payee, payer, or both parties and the intention of both parties was that the payments (or part of the payments) be credited against the payer’s child support liability. The Child Support Agency refers to these types of payments as non-agency payments.

3. Section 71C of the Act provides, subject to section 71D, for an amount to be credited against a payer’s child support liability regardless of the intention of the parents at the time the payment was made provided that it does not exceed 30% of the payer’s enforceable ongoing liability and that the balance of child support is paid as it becomes due and payable. Section 71C also requires that at the time the payment was made, or at the time the payment is to be credited, that the payer must not have at least regular care (14%) of any of the children to whom the assessment applies.

4. Subsection 71C(2) of the Act states that payments of the types specified in the Child Support (Registration & Collection) Regulations 2018 (the Regulations) can be credited. The Child Support Agency refers to these payments as prescribed non-agency payments.

5. Regulation 19 of the Regulations states as follows:

   For the purposes of paragraph 71C (1) (b) of the Act, payments of the following kinds in relation to an enforceable maintenance liability are specified:

   (a)    child care costs for the child who is the subject of the enforceable maintenance liability;

   (b)    fees charged by a school or preschool for that child;

   (c)    amounts payable for uniforms and books required by a school or preschool for that child;

   (d)    fees for essential medical and dental services for that child;

   (e)    the payee's share of amounts payable for rent or a security bond for the payee's home;

   (f)     the payee's share of amounts payable for utilities, rates or body corporate charges for the payee's home;

   (g)    the payee's share of repayments on a loan that financed the payee's home;

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

6. The Child Support Agency may refuse to credit an amount under section 71A or 71C if satisfied that, in the circumstances of the particular case, the amount ought not to be credited.

7. The tribunal finds that in the period 4 January 2018 to 20 July 2018 Ms Isaacs was not required to pay any child support to Mr Mullane. As she was not the payer of an enforceable maintenance liability, payments she made to a third party during that period cannot be credited against her child support liability, regardless of the intentions of Mr Mullane.

8. Ms Isaacs and Mr Mullane agree that each parent was liable for payment of 50% of the school fees. Mr Mullane said that the agreement between the parties had nothing to do with child support, as there was no child support liability.

9. It is Ms Isaacs’ view that she agreed to pay 50% of the school fees on the basis that she was not required to pay child support. Once her income changed and she was required to pay child support she found she could not afford to pay both. When the Child Support Agency advised that she had a child support liability from September 2018 she advised the school that she would no longer contribute to the school fees and she has ceased contributing.

10. The tribunal finds that the amount of $890.40 paid by Ms Isaacs in respect of school fees for the child in the period 4 January 2018 to 20 September 2018 cannot be credited against Ms Isaacs’ child support liability under section 71A, as she had no enforceable maintenance liability in respect of payments made before 20 July 2018, and there was no mutual intention for the payments made between 21 July 2018 and 20 September 2018 to be credited against her child support liability.

11. Whilst it is open for the payments made between 21 July 2018 and 20 September 2018 to be credited under section 71C, if all other conditions were met, the tribunal finds that the payments ought not to be credited in accordance with section 71D as the parents agreed that each parent was liable for, and was paying 50% of the fees. Crediting the payments would make Mr Mullane wholly responsible for the school fees.

12. The tribunal therefore refuses to credit the non-agency payments totalling $890.40 against Ms Isaacs’ enforceable maintenance liability.

DECISION

The decision under review is affirmed.