Karlsen and Karlsen (Child support)

[2019] AATA 3836

Karlsen and Karlsen (Child support) [2019] AATA 3836 (6 August 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC016596

APPLICANT:  Mr Karlsen

OTHER PARTIES:  Child Support Registrar

Ms Karlsen

TRIBUNAL:Presiding Member J Thomson

Member K Buxton

DECISION DATE:  6 August 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – opt-in arrears – whether there were unpaid amounts in the specified period – application for collection of unpaid amounts should be accepted – 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. Mr Karlsen has been assessed to pay child support to Ms Karlsen for [their children], who have been recorded by the Child Support Agency (CSA) as being in Ms Karlsen’s 93% care and Mr Karlsen’s 7% care. The payment of child support can be a private matter between the parents. Alternatively, it can be registered for collection by the CSA. When the assessment of child support assessed Ms Karlsen as the receiving parent, she initially elected to collect the child support payments privately. On 19 December 2017, she applied, pursuant to section 25 of the Child Support (Registration and Collection) Act 1988, (the Act), to have the CSA collect them. She also applied, pursuant to section 28A of the Act, to have the CSA collect any unpaid child support from the preceding 3 months.

2. On 21 February 2018 the CSA accepted Ms Karlsen’s application to the CSA for collection of child support payments from Mr Karlsen from 19 December 2017 and the collect arrears in the sum of $1,578.01 for the period 23 November 2017 to 18 December 2017 (the arrears period).

3. Mr Karlsen objected to the CSA’s decision to collect arrears. Mr Karlsen stated that he had made private payments directly to Ms Karlsen during the arrears period, and that those payments were intended for child support. His objection was disallowed, and Mr Karlsen applied to the Tribunal for review of that decision.

4. The Tribunal hearing was held on 6 August 2019. In reaching its decision, the Tribunal has considered the affirmed evidence given by Mr Karlsen and Ms Karlsen, who participated in the hearing by telephone, and documentation provided by the CSA (marked Exhibit 1).

CONSIDERATION

1. The central question for the Tribunal was whether, as at 19 December 2017, any amount of child support for the children remained unpaid by Mr Karlsen for the arrears period. Mr Karlsen was assessed to pay child support to Ms Karlsen for [the children] at the daily rate of $60.69268, totalling $1,578.01 in round figures for the arrears period.

2. Mr Karlsen acknowledged in his evidence that the last regular weekly payment of child support of $424.85 he made to Ms Karlsen was on 15 November 2017. Mr Karlsen said he ceased working for his [employer] in December 2017 because he was suffering from mental health issues and received a lump sum termination payment. He said this, together with gifts he had received, provided him with sufficient funds to make two cash payments of $1,000 each to Ms Karlsen. Although he was unable to recall the dates on which he said he made each of these payments to Ms Karlsen, he said he made them to her in person at their former matrimonial home during the course of the arrears period. However, when questioned by the Tribunal on this issue, he acknowledged that he was unable to provide any evidence of having made these two cash payments of $1,000 each to Ms Karlsen, neither in the form of bank statements recording the receipt of his lump sum termination payment from [his employer], which he said was made to a bank account which has since been closed, and the bank statements are no longer available to him, nor was he able to provide evidence of the withdrawals of the cash he claimed to have paid to Ms Karlsen, or that Ms Karlsen had accepted those payments in lieu of child support.

3. Ms Karlsen denied having received the cash payments Mr Karlsen asserted he had paid to Ms Karlsen, referred to in the preceding paragraph. She said the last payment she received from Mr Karlsen was the child support payment of $424.85 on or about 15 November 2017. She said she contacted Mr Karlsen towards the latter part of November 2017 to enquire as to why he had not paid her his regular child support payments of $425.85, but received no satisfactory explanation for his failure to do so. She said she waited a further three weeks, during which she received no further payments from Mr Karlsen, following which, she applied on 19 December 2017 to the CSA to have Mr Karlsen’s child support payments collected by the CSA together with arrears of child support for the arrears period.

4. The Tribunal finds that Mr Karlsen has failed to provide any satisfactory evidence that he made any payments to Ms Karlsen by way of child support, or in lieu thereof, after 15 November 2017. The Tribunal accepts Ms Karlsen’s evidence that she did not receive the two cash payments Mr Karlsen asserts he paid to her, or any payments in lieu of child support, after 15 November 2017. Further, there is no evidence that, even if such payments had been made, they had been accepted by Ms Karlsen as child support payable during the arrears period.

5. Mr Karlsen stated that he had met other expenses prior to the arrears period and was therefore “in advance” of his child support obligation. Each of the payments described were in the nature of Mr Karlsen’s own costs for his 50% share in home loan repayments and utilities for the former matrimonial home. Mr Karlsen had, correctly, paid child support in addition to those amounts prior to the arrears period as those amounts are not in the nature of, or in lieu of, child support. The Tribunal does not, therefore, accept the submission that Mr Karlsen was “in advance” of his child support obligations when the arrears period began.

6. As the Tribunal has reached the same conclusion as the objections officer in the decision under review, the Tribunal affirms that decision.

DECISION

The decision under review is affirmed.