Meggott and Meggott (Child support)

[2021] AATA 3354

Meggott and Meggott (Child support) [2021] AATA 3354 (13 July 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC021608

APPLICANT:  Mr Meggott

OTHER PARTIES:  Child Support Registrar

Ms Meggott

TRIBUNAL:Member T Bubutievski

DECISION DATE:  13 July 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – non-agency payment - whether payment made directly to payee in lieu of child support - intention of both parents - 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 Meggott and Ms Meggott are the parents of three children. The case was registered for collection by Services Australia (Child Support) (the Agency) on 4 January 2021. Prior to this, child support was paid by Mr Meggott under a private arrangement between the parties.

2. On 1 March 2021 the Agency made a decision to refuse to credit three payments of $504 each ($1,512 in total) made in January and February 2021 as non-agency payments against the child support liability in that period. This decision was made on the basis that although Mr Meggott paid the money directly to Ms Meggott the parties do not agree that these payments were child support payments for the relevant period. While Mr Meggott says that they should be taken in partial satisfaction of the administrative assessment made by the agency from 4 January 2021 Ms Meggott said that these payments were arrears payments and were not for that period.

3. Mr Meggott lodged an objection to the decision not to credit the payments and on 18 May 2021 an objections officer disallowed Mr Meggott’s objection.

4. Mr Meggott lodged an application for a review with the Social Services and Child Support Division of this Tribunal on 28 May 2021.

5. The matter came for hearing in Sydney on 13 July 2021.  Mr Meggott and Ms Meggott both attended the hearing by telephone and gave sworn evidence.

ISSUES

1. The issue in this case is whether or not the Agency was correct to refuse to credit the amounts paid by Mr Meggott to Ms Meggott as non-agency payments. 

2. The legislation relevant to this decision is the Child Support (Registration and Collection) Act 1988 (the Registration Act).

3. The Agency (acting for the Child Support Registrar) can credit payments made to a payee by a payer against an enforceable maintenance liability. Section 71 of the Registration Act states that an amount can be credited provided there is an enforceable maintenance liability and both parents intend that the payment ‘be paid in complete or partial satisfaction’ of an amount payable under the enforceable maintenance liability.

4. The Agency cannot credit a non-agency payment if only the payer or payee intended for the payment made to be in satisfaction of the enforceable maintenance liability.

5. Section 71D of the Registration Act allows the Agency to refuse to credit such a payment in special circumstances even if the payment would ordinarily have been credited as a non-agency payment under section 71.

CONSIDERATION

1. Mr Meggott said that he was seeking clarification of the Agency’s decision as it appeared to him that the Agency had determined that he owed arrears of child support for a period prior to the registration of the case with the Agency. He said that the Agency has clearly told him that it cannot make assessments for periods prior to registration. The Tribunal knows that this is correct. Under the law, the Child Support Registrar has no jurisdiction to make an assessment for a period in which there has been no application for registration, other than for an arrears period of three months if such a request is made.

2. Mr Meggott said that Ms Meggott registered the case on 4 January 2021, but that this was a lengthy process. He said that he was not notified by the Agency about the administrative assessment until February 2021, and in the meantime he had paid child support in the usual manner. He said that when he did his tax return the Agency took approximately $1,500 from his tax return. It was his view that he had paid his liability twice and he should be refunded one of those amounts.

3. The Tribunal noted an email exchange between Mr and Ms Meggott from 4 January 2021 in which Ms Meggott advises Mr Meggott that, in her opinion, as at 28 December 2020 Mr Meggott was eight weeks behind in his child support. Mr Meggott acknowledged that there had been a period of time in which he did not pay child support in accordance with the agreement between the parents, but noted that the amount of child support payable under that agreement had been higher than the administrative assessment.

4. The Tribunal asked Ms Meggott if she recalled being asked by the Agency whether or not she wished for it to collect up to three months of arrears at the start of the liability. Ms Meggott said that she did not recall that conversation, but that it had been a stressful time. The Tribunal can see that no such application was made.

5. Ms Meggott said that the reason she had registered the liability with the Agency in the first place was because Mr Meggott was behind in his payments. She said that in her view the payments made by Mr Meggott in January and February 2021 were an attempt by him to appease her and prevent her from proceeding with Agency collection. Ms Meggott said that Mr Meggott wanted to keep their arrangements private and flexible.

6. The Tribunal asked if there had been mediation in relation to child support. Ms Meggott confirmed that there had not, and the mediation referred to in the email exchange between the parties was in relation to their settlement of property.

7. In support of her view, Ms Meggott has provided her bank statements, which show the amount and frequency of child support paid by Mr Meggott prior to the registration of the liability. She said that although Mr Meggott had reimbursed her for certain expenses, he had only made one payment of child support in 2019, nineteen in 2020 and three in 2021. Given that under the agreement the parents made child support was meant to be paid to Ms Meggott fortnightly, her view was that Mr Meggott had missed seven payments in 2020. She said that she absolutely rejected the proposition that the payments made by Mr Meggott in January and February 2021 were part of his ongoing liability. She was of the opinion that they were arrears payments.

8. The Agency can only credit a payment made directly to a payee as a non-agency payment under section 71 of the Registration Act if it is agreed by both parties that the payment was intended to be in partial or complete satisfaction of the enforceable maintenance liability. The enforceable maintenance liability in this case is the liability which arose after the registration of the case on 4 January 2021. As the Tribunal explained to Mr Meggott, this decision has been made on the basis that the parties do not agree that the three payments of $504 each he made on 4 January 2021, 18 January 2021 and 1 February 2021 were in satisfaction of the enforceable maintenance liability. The Agency has not made a decision about what the liability may have been for the prior period, it has simply correctly applied the law, which says that a credit cannot occur without agreement.

DECISION

The decision under review is affirmed.