MacGill and Levett (Child support)

[2019] AATA 2521

MacGill and Levett (Child support) [2019] AATA 2521 (5 June 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC016138

APPLICANT:  Mr MacGill

OTHER PARTIES:  Child Support Registrar

Miss Levett

TRIBUNAL:Member J Leonard

DECISION DATE:  5 June 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT - opt-in arrears - whether there were unpaid amounts – calculation of unpaid amounts - 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 MacGill and Miss Levett are the parents of [Child 1] (born 2012) and [Child 2] (born 2003). There has been a child support assessment in place made by the Department of Human Services – Child Support (the Department) since 19 June 2007. The assessment was based on Miss Levett having care percentages of 100% for [Child 1] and 51% for [Child 2], and Mr MacGill having care percentages of 0% for [Child 1] and 49% for [Child 2]. From 27 November 2018 [Child 1] was no longer a child of the administrative assessment.

2. Mr MacGill is the liable parent under the assessment. The liability had been registered for collection by the Child Support Registrar for the period 6 August 2007 to 23 June 2008, and from 24 June 2008 it was private collect.

3. On 22 November 2018 Miss Levett applied to the Department to register Mr MacGill’s liability. She also asked the Department to collect arrears.

4. On 4 December 2018 her application was granted from 22 November 2018. A decision was also made that Mr MacGill owed unpaid child support of $1,223 for the period 22 August 2018 to 21 November 2018.

5. Mr MacGill lodged a written objection to the decision to collect arrears. His objection was partly allowed on 7 March 2019 and he was advised the unpaid amount was $978.80 for the period 11 August 2018 to 21 November 2018.

6. On 19 March 2019 Mr MacGill applied to the tribunal for a review of the objection officer’s decision.

7. The application was heard on 30 May 2019. Mr MacGill and Miss Levett both attended the hearing by telephone. In addition to oral evidence, the tribunal had regard to documents provided by the Department (folios 1 to 81). The tribunal adjourned to obtain evidence of Mr MacGill’s child support liability during the period 22 August 2018 to 21 November 2018. A copy of the evidence is attached to this decision.

ISSUES

1. The issues the tribunal must decide are:

• whether Mr MacGill has unpaid child support for the three months prior to 22 November 2018; and, if so,

• the amount unpaid.

CONSIDERATION

1. The legislation relevant to this review is contained in the Child Support (Registration and Collection) Act 1988 (the Act). Subsection 39(1) of the Act provides that if a child support liability is not enforceable by the Child Support Registrar due to a decision to accept an application to no longer have the liability enforced, the payee can apply for the liability to become enforceable again.

2. If an application is made under subsection 39(1) of the Act, the payee can also apply under subsection 39A(4) of the Act for unpaid amounts to be treated as arrears amounts and collected by the Registrar. If the application under subsection 39(1) is granted, the Registrar must grant the payee’s application if the specified period does not exceed three months (subsection 39A(5) of the Act).

3. Subsection 39(5) provides that the Department must grant the application unless satisfied that:

   ·the liable parent has been complying with his or her obligations; or

   ·the liable parent has satisfactorily explained and rectified a failure to comply; or

   ·there are special circumstances in relation to the liability which make it appropriate to refuse the application.

4. Mr MacGill stated that he accepts there is an unpaid amount owing, however he does not understand how the Department has calculated the amount and believes it should be less. He also contends that he paid some of the children’s direct expenses. He explained that he paid less than the assessed liability as he received a number of notices around the same time informing him of his liability, so he complied with the one that had the lesser figure.

5. Miss Levett applied to have unpaid child support collected for a period of three months prior to 22 November 2018: 22 August 2018 to 21 November 2018.

6. The tribunal finds that Mr MacGill has not rectified his failure to comply although he has offered an explanation as to why the payments were not in accordance with the liability.

7. The tribunal finds that there are no special circumstances in this case which would make it appropriate to refuse Miss Levett’s application.

8. Mr MacGill’s liability for the period 22 August 2018 to 31 October 2018 is calculated as follows:

   ·22 August 2018 to 31 August 2018: daily rate $45.74675 x 10 days             $457.47

   ·1 September 2018 to 30 September 2018: daily rate $45.74675 x 30.4375 days  $1,392.42

   ·1 October 2018 to 31 October 2018: daily rate $45.74675 x 30.4375             $1,392.42

   ·1 November 2018 to 21 November 2018: daily rate $44.24367 x 21 days        $929.11

   $4,171.42

9. Mr MacGill and Miss Levett agreed that Mr MacGill paid the following child support:

   ·$989.70 on 21 August 2018

   ·$1,123.50 on 21 September 2018

   ·$1,123,50 on 21 October 2018

   ·$626.42 on 21 November 2018.

10. Mr MacGill stated the August payment was reduced by $133.80 as this represented an amount owed to Mr MacGill by Miss Levett as her 50% share of the final instalment on [Child 1]’s orthodontic treatment which he paid on 21 August 2018.

11. Mr MacGill stated the November payment was reduced by $75 as this represented an amount owed to Mr MacGill by Miss Levett as her 50% share of [Child 2]’s 2018 VET studies.

12. Mr MacGill contends that the payments he made for orthodontic treatment and VET studies were for the benefit of the children and should be regarded as being in respect of the assessed child support liability.

13. The payment in respect of orthodontic treatment was not made during the arrears period and cannot be credited under the Act.

14. Miss Levett told the tribunal that she regarded the payment of $75 towards [Child 2]’s VET fees should not be regarded as an amount paid in respect of child support as she had paid $700 for [Child 2]’s VET studies for 2018. As it was not her intention that the $75 was paid in respect of child support, the amount cannot be taken into account in determining the quantum of the unpaid amount during the arrears period unless subsection 39A(8) of the Act applies. This states:

    (8) To avoid doubt, a reference in this section to an unpaid amount payable under a liability does not include a reference to any amount that would have been credited against that unpaid amount under section 71C if the liability had been an enforceable maintenance liability at all relevant times.

15. Section 71C of the Act allows for the gradual crediting of payments (up to 30% of the child support liability for a period) where they fall into categories set out in regulation 19 of the Child Support (Registration and Collection) Regulations 2018 (the Regulations) regardless of the parents’ intentions. Regulation 19 includes payments in respect of the fees charged by the school for the child.

16. Section 71C of the Act requires that the liable parent has less than “regular care” in respect of the child for whom the payment was made, both at the time the payment was made and when the decision is made to credit the amount. The term “regular care” is defined in subsection 5(2) of the Child Support (Assessment) Act 1989 as a percentage of care of at least 14%, but less than 35%. Mr MacGill had more than regular care of [Child 2] and so the amount cannot be taken into account in determining the quantum of the unpaid amount during the arrears period.

17. The tribunal finds that Mr MacGill made payments in respect of his liability for the period 22 August 2018 to 21 November 2018 as follows:

    August: $989.70/31 x10 days   $319.20

    September and October: $1,123.50 x 2   $2,247

    November: $626.42  $626.42  

    $3,192.62

18. The tribunal finds that there is unpaid child support of $978.80, ($4,171.42–$3,192.62), for the period 22 August 2018 to 21 November 2018 which is enforceable by the Child Support Registrar.

DECISION

The decision under review is affirmed.