Lotender and Lotender (Child support)

[2024] AATA 2542

Lotender and Lotender (Child support) [2024] AATA 2542 (29 May 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/MC027542

APPLICANT:  Mr Lotender

OTHER PARTIES:  Child Support Registrar

Mrs Lotender

TRIBUNAL:Senior Member K Dordevic

DECISION DATE:  29 May 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – non-agency payment – funds withdrawn from joint account – no joint intention or agreement – did not have at least regular care of the children – decision under review affirmed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 Lotender (the father) and Mrs Lotender (the mother) are the parents of three children.

2. A child support case has been in place with Services Australia – Child Support (Child Support) since 28 November 2022. From the date of registration, the children were recorded as being in the mother’s 58% care and the father’s 42% care. The care register was amended from 15 September 2023 to record the children as being in the mother’s 100% care. The father is required to pay child support in respect of the children.

3. On 22 August 2023 the father lodged an application to have a non-agency payment credited to his child support liability in the amount of $7,463.11.

4. On 28 August 2023 the application was refused.

5. The father objected to that decision on 21 September 2023.

6. An objections officer disallowed the objection on 8 February 2024.

7. 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 Tribunal) on 21 February 2024.

8. The hearing was convened on 29 May 2024. The father attended by MS Teams video and the mother attended by MS Teams audio. In reaching its decision the Tribunal considered the sworn evidence of the mother and father as well as the documents provided by Child Support (folios 1 to 243). 

ISSUE

1. The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (the Act).

2. The issue in this case is whether all or part of the funds withdrawn by the mother from the parents’ joint account can be credited as a non-agency payment against the father’s child support liability.

CONSIDERATION

1. Sections 71 and 71A of the Act allow Child Support to credit a payment made to the payee[1] or a third party on behalf of the payee of an enforceable maintenance liability in lieu of a payer’s[2] child support liability in certain circumstances. Such payments are known as non-agency payments. In this case the father is the payer (that is, he is liable to pay child support) and the mother is the payee (that is, she is paid child support). These provisions also require that the amount is “intended by both the payer and payee to be paid in complete or partial satisfaction” of the child support liability.

   [1] Defined under section 4 of the Act as the “person who is entitled … to receive payments under the liability”.

   [2] Defined under section 4 of the Act as the “person who is liable to make payments under the liability”.

2. The Tribunal finds that on 25 July 2023 the mother withdrew $7,463.11 from the parents’ joint account. It is this withdrawal that the father seeks to have credited to his child support liability.

3. At hearing the father stressed that the withdrawal immediately followed the payment of child care subsidy on the same date. He submits the payment of childcare subsidy was in respect of a refund for a 2018 financial year childcare subsidy debt in the amount of $17,500 that was repaid from joint funds in April 2023. This joint debt was referred to in the binding financial agreement entered into on 23 August 2023.[3] He went on to state that he lodged his 2023 income tax return, which was lower than estimated, and he believes that the refund related to that. The father agreed that he had access to the account at the time the mother withdrew but did not check it before entering into the binding financial agreement. He did not assert that there was an agreement between himself and the mother that the withdrawal was in lieu of child support.

   [3] Folio 14, noting that the father did not provide a full copy of the binding financial agreement, instead only providing the extract reproduced.

4. The mother’s evidence is that the childcare subsidy paid into the joint account on 25 July 2023 occurred after she advised Centrelink that she was no longer a member of a couple. She stressed that the binding financial agreement was entered into one month later. She stated that at no time did she and the father ever discuss the withdrawal being in lieu of child support and that at all times she was responsible for meeting the childcare costs. She is also of the view that the father was regularly monitoring the account activity and so does not accept that he only became aware of her withdrawal after the binding financial agreement was entered into.

5. There is no dispute that there was no agreement between the parents whereby all or part of the withdrawal of $7,463.11 from the parents’ joint account was intended to be credited towards the child support liability. Application of these findings to the above law leads to a conclusion that the payments cannot be credited to the father’s liability pursuant to sections 71 or 71A of the Act. 

6. Section 71C 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. Each paragraph of this section must be satisfied:

   (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.

1. The Tribunal finds that at the time of the withdrawal of the funds from the joint account the father did not have at least regular care of the children.

2. Therefore, paragraph 71C(1)(ba) is not satisfied.

3. Thus, the withdrawal of $7,463.11 from the parents’ joint account cannot be credited towards the father’s child support liability.

4. Thus, the Tribunal concludes that Child Support was correct to refuse to accept the withdrawal of $7,463.11 from the parents’ joint account as a non-agency payment. That is, the decision under review is correct.

DECISION

The decision under review is affirmed.