Loban and Rodmore (Child support)

Loban and Rodmore (Child support) [2022] AATA 4117 (30 August 2022)

DECISION DATE: 30 August 2022

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/BC024093
APPLICANT:  Mr Loban
OTHER PARTIES:  Child Support Registrar
Ms Rodmore

TRIBUNAL:Member P Jensen
DATE OF DECISIONS: 30 August 2022
DECISIONS:

The decisions under review are set aside and, in substitution, Ms Rodmore’s applications to have Services Australia – Child Support collect the ongoing child support payable from 21 March 2022 and any child support arrears in respect of the preceding three months are refused.

CATCHWORDS

CHILD SUPPORT – registration details – application for collection of the maintenance liability - whether the application for collection and arrears should be accepted – whether conditions to refuse were met – the application for collection and arrears should be refused - 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 omitted 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 DECISIONS

Mr Loban and Ms Rodmore are the parents of four children. A child support case was registered with Services Australia - Child Support (“the CSA”) from 18 April 2021. The CSA assessed Mr Loban’ rate of child support payable pursuant to the Child Support (Assessment) Act 1989. From at least 1 September 2021, that assessment was based on Mr Loban’ 2020-21 adjusted taxable income of $91,364, Ms Rodmore’s 2020-21 adjusted taxable income of $22,154 and each parent’s 50% care for the children. Mr Loban was assessed to pay $8,656 per annum in child support, which equates to approximately $721 per month.
The collection of child support can be left to the parents or assigned to the CSA. Initially, Ms Rodmore elected to attend to its collection. In May 2021 she successfully applied to have the CSA collect it. In June 2021 she elected to attend to its collection.
On 21 March 2022, Ms Rodmore applied to have the CSA collect the ongoing child support payable. She also applied to have it collect the child support arrears in respect of the preceding three months. Those applications were made pursuant to sections 39 and 39A of the Child Support (Registration and Collection) Act 1988 (“the Act”). The CSA refused her applications. She objected to those decisions. An objections officer decided to grant both applications and collect arrears of $1,546.33 in respect of the period from 21 December 2021 to 20 March 2022. Mr Loban applied to the Tribunal for further review. I heard the matter on 30 August 2022. Mr Loban and Ms Rodmore gave sworn evidence via an MS Teams audio link.
Section 39 relevantly provides that Ms Rodmore’s application for the CSA to collect the ongoing child support payable had to be granted unless:
(a)     Mr Loban had been complying with his child support obligations to Ms Rodmore;
(b)     Mr Loban had satisfactorily explained and rectified his failure to comply with his child support obligations; or
(c)     “there are special circumstances that exist in relation to the liability that make it appropriate to refuse the application.”
If Ms Rodmore’s application pursuant to section 39 is refused, her application for the collection of arrears pursuant to section 39A must also be refused.
In November 2021 the parents entered into a written agreement. It was based, in part, on the fact that Ms Rodmore’s income at the time was significantly more than her 2020-21 adjusted taxable income of $22,154. The parents agreed that they would “assess the child support every 6 months and Mr Loban will pay according to the child support calculator.” They also agreed to share equally in the children’s costs of schooling, extra‑curricular activities and major medical expenses. There is no dispute that, to the extent that those costs were incurred, they were shared equally. In addition to making payments pursuant to the written agreement, Mr Loban also made payments in respect of the house in which Ms Rodmore was living.
On 15 December 2021, 14 January 2022 and 14 February 2022, Mr Loban paid $184 in child support to Ms Rodmore. That monthly payment had been calculated pursuant to the child support calculator, as per the parents’ written agreement.
On 15 February 2022, Ms Rodmore sent a text message to Mr Loban as follows: “Can we re-evaluate child support today for next month if both our incomes have changed.” Mr Loban asked Ms Rodmore to provide details of her income. She estimated her income to be $78,213 per annum “plus on call”. Mr Loban said his base rate of income was $85,476 per annum. He calculated that his new rate of child support would be $79 per month. He provided screenshots of the calculations as they appeared on the CSA’s website.[1] Ms Rodmore asked for the link to the website and he provided that too. She replied: “Ok, I got the same numbers”. The conversation relevantly concluded with Ms Rodmore sending the following text message to Mr Loban: “Ok. Well change it in the calendar from next month to pay 79/mo”.
[1]Normally, Mr Loban’s ’ commendably transparent conduct would not warrant a comment. However, Ms Rodmore’s allegations against Mr Lobanincluded the following: “My reasons for not applying earlier are concerns about domestic violence mostly financial”; “I did not have any choice in Mr Loban paying me the $79.00 he has decided he should pay this amount based on the incomes at this point in time”; and, per Ms Rodmore’s solicitor, “[Ms Rodmore] also instructs that [Mr Loban] has manipulated the amount of child support paid in that instead of as per child support estimates from the previous financial year, he is using this year’s financial estimates.” Those statements do not refer to the fact that the parents had reached an agreement concerning the amount of child support that Mr Lobanshould pay and that Ms Rodmore has instigated the change to $79 per month pursuant to that agreement. Ms Rodmore did not provide any evidence in support of her allegation of financial abuse. The evidence provided to the Tribunal suggests that the alleged abuse did not occur.
On 14 March 2022, Mr Loban paid $79 to Ms Rodmore. On 16 March 2022 she sent him a text message which commenced as follows: “I’m frustrated, work didn’t pay me like they were supposed to today. I got bills due to be paid today so I’m trying to figure out what to do.” She told him that they needed to have a conversation about “child support moving forward.” His next monthly payment was not due until mid-April 2022. At the hearing, I asked Ms Rodmore whether they had the conversation that she had requested in her text message. She gave a vague answer. She said there had been many conversations about child support from time to time. She could not recall whether they had a conversation about child support between 16 March 2022 (when she sent the text message) and 21 March 2022 (when she applied to have the CSA collect the ongoing child support and arrears). Mr Loban stated: “I don’t think we had a conversation [at that time].”
Importantly, there is no suggestion that during the period from 15 February 2022 (when the parents agreed that Mr Loban would pay $79 per month) to 21 March 2022, Ms Rodmore had required Mr Loban to pay his administratively assessed rate of child support payable of $721 per month and he had refused to do so. Given the informal adjustment that the parents had agreed to make to Mr Loban’ administratively assessed rate of child support payable, it seems likely that if Ms Rodmore had required Mr Loban to pay that rate, he would have taken more formal steps to have it varied to reflect the parents’ actual circumstances. For example, he could have lodged a departure application.
On 21 March 2022, Ms Rodmore lodged her applications. The CSA recorded each of Mr Loban’ monthly child support payments as being payments of arrears: page 43 of the hearing papers. However, at the hearing, both parents agreed that the payment on 15 December 2021 was in respect of December 2021, the payment on 14 January 2022 was in respect of January 2022, and so on.
The question as to whether Mr Loban had been complying with his child support obligations is more complicated than it might at first appear. The parents had reached an agreement concerning Mr Loban’ rate of child support payable and he was paying the agreed rate, but, as a matter of law, he was still required to pay the administratively assessed rate of child support payable because the parents’ agreement was not a child support agreement: see 2.7 of the Child Support Guide. It may be that Mr Loban had been complying with his child support obligations via his payments of child support to Ms Rodmore and his payments to third parties, but, for the reasons that follow, it is not necessary to undertake that legal and accounting exercise. Instead, I will focus on the special circumstances provision in section 39 of the Act.
There were a number of ways in which the parents could have addressed the fact that the administrative assessment of child support payable in the months leading up to March 2022 was not based on the parents’, and in particular Ms Rodmore’s, actual circumstances. The parents addressed it by entering into a written agreement that included a method for calculating the amount of child support that was to be paid each month. In February 2022, Ms Rodmore asked Mr Loban to calculate a new rate of child support for March 2022. He calculated the new rate and paid her accordingly, which is why he was not paying the administratively assessed rate of child support payable. Those circumstances constitute special circumstances in relation to the liability that make it appropriate to refuse Ms Rodmore’s application for the collection of ongoing child support.
At the hearing, Mr Loban said he was agreeable to paying the ongoing administratively assessed rate of child support payable (because, as best as the parents could recall, the CSA had recently made a departure decision to vary Ms Rodmore’s adjusted taxable income to $88,000 per annum from June 2022) but he was not agreeable to paying arrears in respect of the period from 21 December 2021 to 20 March 2022. However, if the application for the collection of ongoing child support payable were granted, the application for the collection of arrears in respect of the preceding three months would also have to be granted: subsection 39A(5) of the Act. The arrears would be calculated on the basis of the administrative assessment that was in force at the time, which was based on Ms Rodmore’s 2020-21 adjusted taxable income of $22,154, notwithstanding the undisputed fact that her income at the time had been significantly higher. The parents had effectively agreed on a method that would avoid that unfairness. Granting Ms Rodmore’s applications would enforce that unfairness.

DECISIONS

[2022] AATA 4117

30 August 2022

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Appeal