Long and Long (Child support)

Long and Long (Child support) [2022] AATA 5127 (16 December 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/BC024577
APPLICANT:  Mr Long
OTHER PARTIES:  Child Support Registrar
Dr Long

TRIBUNAL:Senior Member K Dordevic, Presiding
Deputy President K Synon

DECISION DATE: 16 December 2022
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the payment of $150 paid by Mr Long towards the land loan is to be credited to the child support liability pursuant to section 71C of the Child Support (Registration and Collection) Act 1988.

CATCHWORDS

CHILD SUPPORT – non-agency payment – whether payment should be credited - 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 DECISION

BACKGROUND

Mr Long (the father) and Dr Long (the mother) are the parents of two children.
A child support case was registered with the Child Support Agency (the Agency) on 22 April 2022 and was collectable from that date. The children are recorded as being in the mother’s 100% care.
On 25 May 2022 the father advised the Agency that he made payments for the mother’s benefit: for the mortgage and home insurance on the former marital home where the mother and children continued to reside ($774.14 and $2,225.37 paid on 2 May 2022) and a separate land loan ($500 paid on 8 May 2022). He sought to have the payments credited as non-agency payments towards his child support liability.
On 14 June 2022 the Agency recognised the three payments as prescribed non-agency payments and credited the full amount of the payments to the father’s child support liability.
On 24 May 2022 the mother lodged an objection to the original decision.
On 19 August 2022 the Agency allowed the mother’s objection and refused to credit a third-party payment for home and contents insurance of $2,225.37 (subsequently re-calculated as $1,528.93 as the policy had been updated and no longer included personal valuable cover, so a refund of $696.44 was issued) as a prescribed non-agency payment as it was actually paid on 7 March 2022, not 2 May 2022, and an enforceable maintenance period only began on 22 April 2022.
On 1 September 2022, the Agency reached an objection decision regarding the mortgage and land loan payments, partly allowing the objection. In respect of the mortgage payment, the Agency credited 50% of the payment ($435.45) representing the mother’s share of the home mortgage for April 2022 and the payment in respect of the land loan was refused.
On 2 September 2022 the father made an application for a review of the objections officer’s decisions to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal).
The hearing took place on 23 November 2022. The father and mother appeared by MS Teams audio. The Child Support Registrar elected not to appear. The Tribunal took into evidence documents provided by the Agency (marked folios 1 to 212) and documents provided by the mother (marked folios B1 to B23).
The matter was deferred to close of business 7 December 2022 to allow the father the opportunity to provide:
a) an updated spreadsheet regarding repayments made in respect of [a] land loan from his uncle, including all repayments and total outstanding; and
b) a statutory declaration from the father’s uncle attesting to the veracity of the spreadsheet.
The father provided the spreadsheet on 24 November 2022 (marked folios A1 to A5). On 8 December 2022 the father sought, and was granted, an extension to provide the declaration from his uncle by close of business 16 December 2022. The statutory declaration was provided on 15 December 2022 (marked folios A6 to A13). These documents were accepted into evidence and provided to the other parties.
The Tribunal reached its decision on 16 December 2022.

ISSUE

The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (the Act).
The issue to be considered by the Tribunal is whether the third-party payments made by the father are to be partly accepted as prescribed non-agency payments pursuant to the relevant legislation.

CONSIDERATION

Section 71A of the Act allows the Agency to credit a payment made to a third party on behalf of the payee of an enforceable maintenance liability in lieu of a payer’s child support liability in certain circumstances. Such payments are known as non-agency payments. Paragraph 71A(1)(c) of the Act also requires that the amount is “intended by both the payer and payee to be paid in complete or partial satisfaction” of the child support liability.
It is not in dispute that the mother did not intend that any of the three payments claimed by the father were made in partial or complete satisfaction of the child support liability. It is also not apparent that the father intended the payments to be credited to his child support liability, given the letter in evidence from his solicitors, Mr [A], dated 26 April 2022:[1]
Our client has indicated that for the short term, he will continue to service the mortgage attached to the matrimonial residence so that your client and the children can reman in that stable and familiar environment. He has also indicated that he will attend to the rates, home utilities, insurances and half of the children’s day-care and swimming expenses during the property settlement negotiations.
[1] At folios 50 to 51
As the Tribunal is not persuaded that the payments were intended by both the mother and father to be in complete or partial satisfaction of the child support liability, the mortgage, land and insurance payments cannot be credited as non-agency payments pursuant to section 71A of the Act.
Subsection 71C(1) of the Act states payments made by a liable parent for certain specified items may be taken into account in partial satisfaction of the liable parent’s child support liability. Joint intention or agreement is not required. A number of specific criteria have to be satisfied for this provision to apply:
71C Other payments of up to 30% of child support liability
(1)    If:
(a)    the payer of an enforceable maintenance liability in relation to a payment period or initial period has made one or more payments to the payee of the liability, or to another person; and
(b)    the payment is a payment of the kind specified in the regulations; and
(ba) at the time the payment is made, the payer does not have at least regular care of any of the children to whom the relevant administrative assessment relates; and
(c)    the sum of those payments exceeds the sum of all such payments previously credited under this section against the amount payable under the liability for all past periods; and
(d)    the payer does not, at the time at which the Registrar applies this section, have at least regular care of any of the children to whom the relevant administrative assessment relates;
then the Registrar must, despite section 30, credit the excess amount mentioned in paragraph (c) against the amount payable under the payer’s liability for the period, up to a maximum of 30% of the amount payable.

The Tribunal finds that the father made the following payments:
·      $2,518 on 7 March 2022 in respect of the home insurance (and was refunded $696.44 after amending the insurance policy on 26 April 2022);
·      $1,000 in respect of a loan for the purchase of land in [Suburb][2] on 9 May 2022 (and not 8 May 2022 as the father submitted);[3] and
·      $2,903.83 in respect of the mortgage repayment[4] on 2 May 2022.
[2] At folio 53
[3] At folio A13
[4] At folio 78
There was no enforceable maintenance liability (that is, the child support assessment had not begun) at the time the father paid the home insurance on 7 March 2022. As a matter of fact, the case was registered with the Agency on 22 April 2022. As paragraph 71C(1)(a) of the Act is not satisfied in respect of the home insurance payment, this payment cannot be credited as a prescribed non-agency payment.
However, at the time the father made the mortgage and land loan repayments he was required to pay his child support liability to the Agency, and there were no other non-agency payments previously credited. Paragraphs 71C(1)(a) and (c) are satisfied.
The Tribunal next considered paragraphs 71C(1)(ba) and (d) of the Act. They stipulate that at the time the payments were made and at the time at which the Registrar applied this section, the payer (the father in this case) does not have at least regular care. Regular care is defined as care that falls between 14% to 34%. As a matter of fact, the father has 0% care of the children, both at the time the payments were made and at the time at which the Registrar applied this section. Thus, paragraphs 71C(1)(ba) and (d) are satisfied.
The final element of subsection 71C(1) of the Act that must be considered is paragraph 71C(1)(b). The Child Support (Registration and Collection) Regulations 2018 (the Regulations) state at regulation 19:
19 Specified payments
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:
…
(g) the payee’s share of repayments on a loan that financed the payee’s home; …
The Tribunal accepts that the parents purchased [a] land in January 2018, as evidenced by the sale contract in place.[5]
[5] At folios 19 to 23
The parents’ consistent evidence can be summarised as follows. They bought a piece of land in [Suburb] on which to build their home. They were unable to secure finance for both the land and home build, and so the father’s uncle loaned them the funds to purchase the land upon which the former marital home was built. There is no contract regarding this loan; rather it is a verbal agreement.[6] During the marriage the land loan was repaid as and when the parents’ funds permitted. The mother and the children continue to reside in that home and the mortgage payment and land loan paid by the father are in respect of this property. Neither parent could testify as to the sum that remains outstanding on the loan. However, after the benefit of an Excel spreadsheet confirmed by the father’s uncle, the Tribunal is satisfied that as at 30 November 2022 $90,668.97 remains outstanding and that no payments have been made in respect of the loan since 31 May 2022.[7]
[6] At folio A9
[7] At folio A13
The father does not contest the Agency’s findings that the mortgage and land payments he is seeking credit for were for the month of April 2022; that is, they were paid in arrears. Thus, only so much of these payments that were payable during the enforceable maintenance liability may be credited, that being the nine days from 22 to 30 April 2022. Dividing each payment by the 30 days of April requires a daily payment of $33.33 in respect of the land payment and $96.79 in respect of the mortgage. Multiplying these payments by the nine days of the enforceable maintenance agreement indicates that the payments totalled $300 and $871.15 respectively. Therefore, the mother’s half share of these payments, which the father seeks to have credited towards the child support liability are $150 and $435.57 respectively.
Therefore, as all of the requirements outlined in section 71C of the Act are satisfied, the payment of the mother’s half share of these payments must be credited towards the father’s child support liability.
However, section 71D of the Act permits the Registrar (or this Tribunal in its place) to refuse to credit a non‑agency payment. The Child Support Guide (Version 4.57) at Chapter 5.3.1 provides examples of how the discretion may be exercised. Only one of the given examples is relevant to the current case:
Discretion to refuse to credit an amount
The Registrar can refuse to credit a non-agency payment claimed under CSRC Act sections 71, 71A or 71C if the Registrar is satisfied that, in the circumstances of the particular case, the amount ought not to be credited (CSRC Act section 71D).
The Registrar may refuse to credit an amount in certain circumstances, including, but not limited to, the following:
…
·The payer is claiming credit under CSRC Act section 71C for an expense which they have undertaken to pay in addition to their liability as specified in an agreement between the parents (this does not have to be a child support agreement).
The Tribunal acknowledges that, while 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.
The Tribunal finds that section 71D of the Act is applicable to the current case. As outlined above, the mother provided evidence that the father undertook to meet the mortgage payments and insurances (amongst other things) whilst the property negotiations were taking place (at paragraph 16). However, it is apparent from this agreement that the father did not undertake to make payments in respect of the land loan. The Tribunal finds accordingly.
Haven taken into account the policy the Tribunal is not persuaded that the mortgage payment of $435.57 should be credited, pursuant to 71D of the Act. However, the Tribunal is satisfied that the mother’s $150 share of the land payment made on 9 May 2022 in respect of the enforceable maintenance period should be credited in the absence of an agreement that the father undertook to pay this in addition to his child support liability.

DECISION

[2022] AATA 5127

16 December 2022

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Remedies

Procedural Fairness

Judicial Review