Mercer and Leonardi (Child support)

[2022] AATA 630

Mercer and Leonardi (Child support) [2022] AATA 630 (15 February 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/MC022742

APPLICANT:  Mr Mercer

OTHER PARTIES:  Child Support Registrar

Ms Leonardi

TRIBUNAL:Member P Jensen

DECISION DATE:  15 February 2022

DECISION:

The decision under review is set aside and the matter is sent back to the Child Support Registrar for reconsideration in accordance with directions that:

• arrears are to be collected in respect of the period from 16 March 2021 to 15 April 2021; and

• the quantum of the arrears is to be calculated on the basis that Mr Mercer’s payment of $700 to Ms Leonardi on 16 March 2021 was in respect of the period from 16 March 2021 to 15 April 2021.

CATCHWORDS

CHILD SUPPORT – opt-in arrears – whether there were unpaid amounts – application for collection of unpaid amounts should be accepted – decision under review set aside and sent back with directions

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

1. Mr Mercer and Ms Leonardi are the parents of two children. A child support case was registered in November 2011 with what is commonly called the Child Support Agency or CSA. Since then, the CSA has assessed Mr Mercer’s rate of child support payable.

2. The payment of child support can be a private matter between the parents or it can be registered for collection by the CSA. When the child support case was registered, Ms Leonardi elected to attend to the collection of child support privately. On 16 April 2021, she applied under section 25 of the Child Support (Registration and Collection) Act 1988 (“the Act”) to have the CSA collect the ongoing child support payable. The CSA granted her application.

3. Ms Leonardi also applied pursuant to section 28A of the Act to have the CSA collect certain child support arrears. The CSA decided to collect arrears in respect of the period from 16 March 2021 to 15 April 2021 on the basis that Mr Mercer had not made any child support payments in respect of that period. (At the time, the CSA calculated that Mr Mercer had been required to pay $752.88 in respect of that period. His rate of child support payable was subsequently varied pursuant to other decisions. Those decisions are not under review in the current proceedings.) Mr Mercer objected to the decision to collect arrears in respect of the period from 16 March 2021 to 15 April 2021. An objections officer disallowed his objection. He applied to the Tribunal for further review. I heard the matter on 15 February 2022. Mr Mercer and Ms Leonardi gave sworn evidence by conference phone. Mr Mercer was accompanied by a support person, [named].

4. At the start of the hearing I noted that the hearing papers contained inflicting information about the period in respect of which Ms Leonardi has applied to have the CSA collect arrears. She confirmed that her application had been confined to the period from 16 March 2021 to 15 April 2021.

5. There is no dispute that on or about the 16th of each month, Mr Mercer paid child support directly to Ms Leonardi. Ms Leonardi provided evidence of the payments from August 2020 onwards, when Mr Mercer was paying $700 per month. The final payment was made on 16 March 2021. The only issue in dispute is the period in respect of which the payment was made. Mr Mercer said he has always made advance payments and the final payment was for the period from 16 March 2021 to 15 April 2021. Ms Leonardi said Mr Mercer always made arrears payments and the final payment was for the period from 16 February 2021 to 15 March 2021. The transactions details in the parents’ bank account statements simply state: “child support”. Neither parent could provide any further evidence on the issue.

6. The objections officer noted:

   When child support is paid through the agency it is paid in arrears. That is, a payment made this month represents child support owed for the prior month. … In line with the payment cycle of a child support collectible case we [sic] have determined the payment was made for a past period.

7. However, Mr Mercer and Ms Leonardi had a private arrangement concerning the payment of child support. The CSA’s process for collecting child support when parents do not have a private arrangement is not relevant to the issue in dispute.

8. In Re ACT Department of Health and Nikolovski and Comcare[1] this Tribunal considered:

   … the more general question of how the tribunal should resolve factual uncertainty. A court would refer to the common law concept of onus of proof to resolve questions about the order of presentation of evidence and what it should do if left in a state of uncertainty by the evidence on a particular issue; (see McDonald v Director-General of Social Security (1984) 1 FCR 354 at 356 per Woodward J). But the Administrative Appeals Tribunal cannot approach the matter in this way; (although in the end, it might not make much of a difference if it did; see ibid at 356-7).

   In McDonald at 358, Woodward J considered what the AAT was to do if it “finds itself in a state of uncertainty after considering all the available material, unable to decide a question of fact either way on the balance of probabilities … Woodward J answered: “it will be necessary for it to analyse carefully the decision it is reviewing” (ibid). His Honour went on to illustrate [by way of an example].

   This analysis rests on the proposition that a decision-maker, and a tribunal standing in the shoes of a decision-maker, should not exercise a power to make a decision unless it is satisfied that the facts warrant the exercise of the power. If the decision-maker or the tribunal cannot be satisfied on the balance of probabilities that facts exist which warrant an exercise of the power, then the decision-maker or the Tribunal should not exercise the power. This approach accords with the view stated by the AAT in Re Twyman and Commonwealth of Australia (1987) 13 ALD 402: “the status quo must remain unchanged unless the evidence establishes that it should be changed” (citing McDonald).

   [1][1996] AATA 113 at paragraphs 7 to 9.

9. In the current case, the decision under review involves a determination of the child support arrears owing, if any, in respect of the period from 16 March 2021 to 15 April 2021. Ms Leonardi and Mr Mercer have given inconsistent but equally plausible oral evidence concerning the period to which the final payment of $700 related, and the documentary evidence is equally consistent with each parent’s account of events. Ms Leonardi asserts that Mr Mercer owes arrears. The evidence does not establish that the final payment of $700 was not in respect of the period from 16 March 2021 to 15 April 2021.

10. At the hearing, the parents addressed the issue as if Mr Mercer’s assessed rate of child support payable had been $700 per month, and if that had been the case, the evidence would not have established that arrears were owing as at 16 April 2021. However, the matter is a little more complicated than that because Mr Mercer had been assessed to pay more than $700 in child support during the period from 16 March 2021 to 15 April 2021. The matter will be sent back to the CSA to calculate the precise arrears.

DECISION

The decision under review is set aside and the matter is sent back to the Child Support Registrar for reconsideration in accordance with directions that:

• arrears are to be collected in respect of the period from 16 March 2021 to 15 April 2021; and

• the quantum of the arrears is to be calculated on the basis that Mr Mercer’s payment of $700 to Ms Leonardi on 16 March 2021 was in respect of the period from 16 March 2021 to 15 April 2021.