Lindsay and Lindsay (Child support)

[2019] AATA 1757

Lindsay and Lindsay (Child support) [2019] AATA 1757 (31 May 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC016113

APPLICANT:  Mr Lindsay

OTHER PARTIES:  Ms Lindsay

Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  31 May 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – non-agency payment - prescribed payment for school fees – whether the amount ought not to be credited in the circumstances of the case - 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

1. Mr Lindsay and Ms Lindsay are the parents of two children. A child support case was registered with the Department of Human Services – Child Support (“the CSA”) on 20 September 2018. Ms Lindsay was recorded as providing 100% care to both children. Mr Lindsay was required to pay child support. Ms Lindsay elected to have the CSA collect the child support payable, which meant that it became a debt that Mr Lindsay owed to the CSA.

2. In certain circumstances the payer of child support can make a payment to a third party and, if the payment falls within one of a number of prescribed categories, the payment can be credited against the payer’s child support debt: section 71C of the Child Support (Registration and Collection) Act 1998 (“the Act”). Such payments are called prescribed non-agency payments.

3. On 31 October 2018 the children’s school received a payment of $8,500 (“the School Payment”). On 22 November 2018, Mr Lindsay applied to have the School Payment credited as a prescribed non-agency payment. The CSA decided to credit the School Payment as a prescribed non-agency payment. Ms Lindsay objected to that decision. During the course of that review, Mr Lindsay informed the CSA that he was only seeking to have half the School Payment, i.e. $4,250, credited as a prescribed non-agency payment. An objections officer allowed Ms Lindsay’s objection and decided to not credit any of the School Payment as a prescribed non‑agency payment. Mr Lindsay sought further review by the Tribunal. I heard the matter on 31 May 2019.

4. The relevant facts are not in dispute. As was noted by Ms Lindsay’s solicitors in a letter dated 29 November 2018:

   The parties reached a negotiated settlement which was recorded in a Binding Financial Agreement dated 18 October 2018. The principal asset of the parties was the sale proceeds from the disposal of the jointly owned property. The Binding Financial Agreement recorded the distribution of the joint proceeds of sale which resulted in cash payments to each of the parties and a separate cheque for $8,500 payable to [the children’s school] in relation to school fees.

5. The parents were agreeable to me proceeding on the basis that each parent had contributed half of the School Payment. There is no dispute that Mr Lindsay’s half of the School Payment satisfied the requirements of section 71C of the Act. In particular, the payment of “fees charged by a school or preschool for that child” is one of the prescribed categories of payment for the purposes of section 71C: paragraph 71C(1)(b) of the Act and sub-regulation 19(b) of the Child Support (Registration and Collection) Regulations 2018.

6. However, section 71C of the Act is subject to section 71D of the Act, which states:

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

7. The parents effectively agreed via their Binding Financial Agreement that they would each pay $4,250 towards the children’s school fees. Independently of the parents’ agreement, Mr Lindsay was also required to pay the assessed rate of child support. Crediting Mr Lindsay’s half of the School Payment as a prescribed non-agency payment would reduce his child support liability by $4,250; he would have paid $4,250 towards the children’s school fees, but he would only be required to pay the assessed rate of child support minus $4,250. Such a result would unfairly reduce his overall financial liability in respect of the children, and it would unfairly increase Ms Lindsay’s overall financial liability in respect of the children. For those reasons, no portion of the School Payment ought to be credited as a prescribed non‑agency payment.

DECISION

The decision under review is affirmed.