Lewanski and Steacy (Child support)
[2025] ARTA 618
•20 February 2025
Lewanski and Steacy (Child support) [2025] ARTA 618 (20 February 2025)
Applicant/s: Mr Lewanski
Respondent: Child Support Registrar
Other Parties: Ms Steacy
Tribunal Number: 2024/AC028506
Tribunal: General Member P Noonan
Place:Melbourne
Date:20 February 2025
Decision: The Tribunal affirms the decision under review.
CATCHWORDS
CHILD SUPPORT – non-agency payments – claimed phone payments – phone payments
claimed cannot be accepted as actually having been made to the mother – decision under
review affirmed
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.
Statement of Reasons
BACKGROUND
Mr Lewanski (“the father”) and Ms Steacy (“the mother”) are the parents of children who are subject to child support. Services Australia − Child Support (“Child Support”) have registered a child support assessment for the children since 9 March 2016. The mother had elected to collect her child support entitlement privately from the father.
On 22 August 2023, the mother contacted Child Support and requested that child support be collected.
On 13 September 2023, Child Support accepted the mother’s application for ongoing collection of child support including arrears of $5,215.43 for the period 22 May 2023 to 21 August 2023.
On 10 November 2023, the father lodged an objection to this decision. On 6 August 2024, an objections officer partly allowed the objection. The officer decided (in summary) that the arrears should be reduced by $3,400 as there was evidence that this amount was paid by the father to the mother during the arrears period. The officer noted that the mother had accepted that some of these payments were child support payments made directly to her. This resulted in the father still owing arrears of $1,815.43.
On 3 September 2024, the father requested a review of the objections officer’s decision by application to the Social Services and Child Support Division of the Administrative Appeals Tribunal (“the AAT”). In his application for review the father stated that he believes he has overpaid $1,800 in child support in a 3-month period.
From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The matter was heard on 10 February 2025 with both the father and the mother appearing at the hearing by conference telephone.
ISSUES
The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (the Act).
The Tribunal also had regard to the Child Support Guide (the Guide) where relevant. The Guide contains governmental guidelines and policy as to how the legislation is to be applied. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. In the recent case of G v MIBP [2018] FCA 1229, the Federal Court observed that it is clear from earlier authorities that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task. A lawful approach allows the adoption of appropriate policy as a guide but not so as to control the making of the decision, and the Tribunal adopts that approach. The Tribunal is satisfied that the Guide topics considered in this decision are in accordance with the objects of the relevant legislation.
The issue which needs to be determined is the correct amount of arrears owing by the father to the mother.
CONSIDERATION
Subsection 24A(2) of the Act states that a payee may elect, when registering the child support assessment, not to have the liability collected by Child Support. However, if the payee later elects to have the liability collected, the payee may also seek to have Child Support collect unpaid arrears. Subsection 28A(4) of the Act states that, if the period does not exceed 3 months, the Registrar must grant the payee’s application. The unpaid amounts are treated as if they were payable during the period and are collectable by Child Support.
The father informed the Tribunal that he believes payments he made towards a child’s mobile phone should be recognised as child support payments. He stated that he gave the child a phone contract and that he pays for it through the phone provider [Provider 1]. He stated that had been making payments throughout the 3-month period in question totalling $791.
The mother submitted that she had been unaware of the phone payments being made and does not agree, (now that she is aware of the claim), that they were ever intended to be in lieu of child support payable to her, as the child was and is living with her.
The Guide sets out that child support payments collected privately can be exchanged in any way the parents agree, such as by cash or bank transfer.[1]
[1] 7.2 Collection types – private collect & agency collect | Child Support Guide (accessed 20 February 2025)
The Tribunal is satisfied that the reduction in arrears of $3,400 is correct, as reflected in the father’s bank transaction records, and this was not disputed by the mother.
In this case, the phone payments were not actually made to the mother and accordingly the Tribunal accepts her evidence that she was unaware the payments were being made by the father directly to [Provider 1], with respect to the child’s phone, as plausible. The father did not claim to have come to an agreement with the mother about these payments prior to purchasing and paying for the phone plan. Further, the mother does not agree the payments were to be made in lieu of child support now that she has become aware of the payments.
It is an important principle in considering non-agency payments that such payments be made with at least some prior knowledge and consent of the payee or the ability to demonstrate such potential intent through evidence such as similar past payments having been agreed to. This is clearly not the case in respect to the claimed phone payments.
It follows that the phone payments claimed cannot be accepted as actually having been made to the mother. This is in accordance with the Guide which states that:
The Registrar will accept a parent's advice that a payment received or the value of goods or services provided by the other parent were intended as a payment towards child support or a carer debt.
Where the parents disagree, the Registrar will seek evidence from both parents and decide, on the basis of that evidence, whether the relevant intention existed when the payment was made.[2]
[2] 7.5.1 Non-agency payments | Child Support Guide (accessed 20 February 2024)
The father also raised issues that cannot be reviewed by the Tribunal at this stage and require him to obtain a further objections officer’s decision from Child Support. There was nothing further before the Tribunal.
DECISION
The Tribunal affirms the decision under review.
| Date of hearing: | Monday, 10 February 2025 |
| Representative for the Applicant: | None |
| Representative for the Other party: | None |
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