Maroun and Atiyeh (Child support)

[2019] AATA 1697

Maroun and Atiyeh (Child support) [2019] AATA 1697 (3 May 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC015825

APPLICANT:  Mr Maroun

OTHER PARTIES:  Child Support Registrar

Miss Atiyeh

TRIBUNAL:Member J Longo

DECISION DATE:  3 May 2019

DECISION:

The decision under review is set aside and, in substitution, the tribunal decides for that the application for collection is granted from 9 November 2018 but that no arrears are to be collected.

CATCHWORDS

CHILD SUPPORT – opt-in arrears – whether there were unpaid amounts – liable parent paid all household expenses – 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 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. This application for review is about whether Miss Atiyeh is entitled to three months of arrears of child support when an application for the child support registrar to collect child support was made.

2. Miss Atiyeh made an application to the Department of Human Services – Child Support (the Department) for the collection of child support on 9 November 2018 and requested the collection of arrears for the period 9 August 2018 to 8 November 2018 in the amount of $1,125.39.

3. On 12 November 2018 the Department made the decision to accept Miss Atiyeh’s application for the collection and also that arrears of $1,125.39 were to be paid for the period 9 August 2018 to 8 November 2018.

4. On 19 November 2018 Mr Maroun objected to the Department’s decision. On 18 January 2019 an objections officer disallowed Mr Maroun’s objection. 

5. On 29 January 2019 Mr Maroun applied to the Administrative Appeals Tribunal (the tribunal) for review. On 3 May 2019 the tribunal conducted a hearing. Mr Maroun spoke to the tribunal and gave sworn evidence. Miss Atiyeh did not participate in the hearing. The tribunal received documents (139 pages) provided by the Department. Copies of these documents were provided to both parties by the Department prior to the hearing. Mr Maroun also provided some additional information to the tribunal (A1 to A2).

CONSIDERATION

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

2. Section 28A of the Act states that if a person entitled to receive child support under a registrable maintenance liability has previously elected not to have the liability enforced under the Act, arrears of child support can be collected. The Department records show that Ms Atiyeh first made an application for registration on 9 April 2018 and that her application was accepted. At the time, the assessment was not enforced by the Department but rather subject to private collect.

3. Ms Atiyeh subsequently made an application for collection of child support by the Department on 9 November 2018. In accordance with section 28A(4) of the Act, the Child Support Registrar granted Ms Atiyeh’s application for collection and for the collection of arrears of child support for a period not exceeding three months, from 9 August 2018 to 8 November 2018.

4. Mr Maroun stated at the hearing that there was a private agreement in place, since they separated under the one roof on 15 November 2016, that he would pay all the household expenses including the mortgage, utilities, school fees and grocery costs and other bills in the place of child support. While this was not specifically discussed, it was the understanding that was in place. He had continued to pay for these items, in lieu of child support, because they were for her and the children’s benefit as well as his own. There was never any discussion regarding the bills being split or that Ms Atiyeh would contribute to any expenses. While the Centrelink separated under one roof form says they shared expenses, this never happened and he always paid these expenses.

10.Mr Maroun stated that he suspected Miss Atiyeh’s request for arrears was based on her desire for more money, as he had learned that she was romantically involved with someone in [Country 1] and had been sending money to this person. He stated that she wanted more money to send overseas.

11.It is clear in this matter that the Department had not collected child support on behalf of Miss Atiyeh prior to her application for this to occur on 9 November 2018. It was therefore a correct decision for the Registrar to accept the application and for the Department to collect child support.

12.Section 28A(6) of the Act provides that any “unpaid amounts” (of arrears) become child support debts at the time when the registrable liability became enforceable. In this case, section 28(1)(c) of the Act means that the registrable maintenance liability became enforceable on 9 November 2018.

13.Based on the evidence at hearing, the tribunal finds that while Mr Maroun was not paying any assessed amounts of child support at the time to Miss Atiyeh, there existed an arrangement in place that he would pay all the household expenses, including the mortgage, utilities, children’s school fees and other costs in lieu of child support. The tribunal accepts Mr Maroun’s evidence that this was the arrangement agreed to by the parties. The tribunal notes that the arrangement was in place since 2016 and even when an application for registration was made on 9 April 2018, no request for collection was made. The tribunal accepts that this was because of the private arrangement in place that Mr Maroun would pay all the expenses in lieu of child support. The tribunal is therefore satisfied that there were no unpaid amounts of child support prior to the application for collection on 9 November 2018. Therefore, no arrears of child support prior to this date are payable.

DECISION

The decision under review is set aside and, in substitution, the tribunal decides that the application for collection is granted from 9 November 2018 but that no arrears are to be collected.