Micaten and Micaten (Child support)

Micaten and Micaten (Child support) [2024] AATA 2024 (29 May 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBERS:  2024/MC027609 & 2024/MC027612
APPLICANT:  Ms Micaten
OTHER PARTIES:  Child Support Registrar
Mr Micaten

TRIBUNAL:Senior Member K Dordevic
DECISION DATE: 29 May 2024
DECISION:

The Tribunal sets aside the decisions under review and, in substitution, decides that pursuant to sections 71C and 71D of the Child Support (Registration and Collection) Act 1988 the following amounts are to be credited to the child support liability:

·      $0 in respect of the council rates paid on 16 March 2023;
·      $329.97 in respect of a water usage, water service and water waste service charge paid on 16 March 2023; and
·      $332.19 in respect of a water service and water waste service charge paid on 30 June 2023.

CATCHWORDS

CHILD SUPPORT – non-agency payments – whether the third-party payments made by the father are to be accepted as prescribed non-agency payments – 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

Mr Micaten (the father) and Ms Micaten (the mother) are the parents of two children.
A child support case was registered with Services Australia – Child Support (Child Support) on 30 November 2022 and was collectable from that date. The children were recorded as being in the mother’s greater than primary care and the below regular care of the father from 30 November 2022. From 16 February 2024 the parents had shared care of the son and from 11 March 2024 the mother had primary care and the father regular care of the daughter.
On 20 March 2023 the father advised Child Support that he made two payments on 16 March 2023 and sought that these be credited to his child support liability. On 22 March 2023 Child Support recognised the two payments as prescribed non-agency payments and credited the full amounts of the payments to the father’s child support liability.
On 30 June 2023 the father advised Child Support that he made one payment on 30 June 2023 and sought that this be credited to his child support liability. On 11 July 2023 Child Support recognised the payment as a prescribed non-agency payment and credited the full amount of the payment to the father’s child support liability.
On 20 July 2023 the mother lodged an objection to these decisions. She was granted an extension of time to lodge an objection to the 22 March 2023 decision.
On 15 December 2023 the objections were disallowed.
On 15 January 2024 the mother made an application for a review of the objections officer’s decisions to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal).
The hearing took place on 29 May 2024. The father and mother appeared by MS Teams audio. The Child Support Registrar elected not to appear. The Tribunal took into evidence documents provided by Child Support (marked folios 1 to 267) and the additional documents B1 to B2.
The Tribunal reached its decision on the day of hearing.

ISSUE

The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (the Act).
The issue to be considered by the Tribunal is whether the third-party payments made by the father are to be accepted as prescribed non-agency payments pursuant to the relevant legislation.

CONSIDERATION

Section 71A of the Act allows Child Support to credit a payment made to a third party on behalf of the payee of an enforceable maintenance liability in lieu of a payer’s child support liability in certain circumstances. Such payments are known as non-agency payments. Paragraph 71A(1)(c) of the Act also requires that the amount is “intended by both the payer and payee to be paid in complete or partial satisfaction” of the child support liability.
The Tribunal finds that the father made the following payments (the payments) payable in respect of the former marital home within which the mother and children now reside:
·      $2,683.70 in council rates payable for the period 1 July 2022 to 30 June 2023[1] on 16 March 2023;[2]
·      $435.12 in respect of a water usage, water service and water waste service charge[3] paid on 16 March 2023;[4] and
·      $332.19 in respect of a water service and water waste service charge[5] paid on 30 June 2023.[6]
[1] Folio 23
[2] Folio 80
[3] Folio 108
[4] Folio 81
[5] Noting that this did not include water usage, which was paid for by the mother on 17 July 2023 (at folios 42 and 52). The water account in evidence at folio 184 relates to the parents’ investment property
[6] Folio 120
It is not in dispute that the mother did not intend that any of the three payments claimed by the father to be made in partial or complete satisfaction of the child support liability.
As the Tribunal is not persuaded that the payments were intended by both the mother and father to be in complete or partial satisfaction of the child support liability, the rates and water payments cannot be credited as non-agency payments pursuant to section 71A of the Act.
Subsection 71C(1) 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. A number of specific criteria have to be satisfied for this provision to apply:
71C Other payments of up to 30% of child support liability
(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.

It is not in dispute that there was an enforceable maintenance liability in place (that is, the child support assessment was registered) from 30 November 2022. The father made all three payments after this time and there were no other non-agency payments previously credited against the child support liability.
Paragraphs 71C(1)(a) and (c) are satisfied.
The Tribunal next considered paragraphs 71C(1)(ba) and (d) of the Act. They stipulate that at the time the payments were made and at the time at which the Registrar applied this section, the payer (the father in this case) does not have at least regular care. Regular care is defined as care that falls between 14% to 34%. As a matter of fact, the father had below regular care of the children, both at the time the payments were made and at the time at which the Registrar applied this section.
Thus, paragraphs 71C(1)(ba) and (d) are satisfied.
The final element of subsection 71C(1) of the Act that must be considered is paragraph 71C(1)(b). The Child Support (Registration and Collection) Regulations 2018 (the Regulations) state at regulation 19:
19 Specified payments
For the purposes of paragraph 71C(1)(b) of the Act, payments of the following kinds in relation to an enforceable maintenance liability are specified:
…
(f)the payee’s share of amounts payable for utilities, rates or body corporate charges for the payee’s home;
The Tribunal finds that the payments were specified payments, pursuant to regulation 19(f), as they are payments for utilities and rates for the payee’s home, noting that the requirements set out that the enforceable maintenance liability is in force at the time the payments are made.
Paragraph 71C(1)(b) is satisfied.
Thus, as all the requirements of section 71C are met, the Registrar was correct when it credited the payments to the father’s child support liability.
Section 71D of the Act permits the Registrar (or this Tribunal in its place) to refuse to credit an amount under section 71C if satisfied that, in the circumstances of the particular case, the amount ought not to be credited.
The Child Support Guide (Version 4.81) contains governmental guidelines and policy as to how the legislation is to be applied. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. In the recent case of G v MIBP [2018] FCA 1229, the Federal Court observed that it is clear from earlier authorities, that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task. A lawful approach allows the adoption of appropriate policy as a guide but not so as to control the making of the decision and the Tribunal adopts that approach.
The Child Support Guide (Version 4.81) at topic 5.3.1 provides relevant examples of what payments and what portion of those payments should be credited.[7] It also outlines how the section 71D discretion may be exercised. It is not in dispute that the father is the legal owner of the former marital home and that in the pending property proceedings the mother intends to establish that she has an equitable interest in the home. The rates notice is in the father’s name only, which reflects his legal entitlement. The mother has no legal liability to meet the cost of the council rates. In the Tribunal’s view, in a context of an unresolved property settlement, the Guide supports the mother’s assertion that no part of the council rates should be credited, notwithstanding the fact that she and the children receive a benefit from the payment of the rates.
[7] Prescribed payments can only be made in relation to a home in which the payee lives and for which the payee is jointly or solely responsible. However, a bill for utilities does not need to be in the payee's name.
The Tribunal refuses to credit any part of the council rates, determining that it ought not be credited as only the father is legally liable to meet this cost.
For completeness, even if the Tribunal were not persuaded that the father’s application in respect of the council rates should be refused, the Tribunal would not be persuaded that all of the payment should be credited for the following reasons. The council rates notice in evidence indicates that the rates notice is for the period 1 July 2022 to 30 June 2023.[8] At hearing the parents agreed that the mother left the former marital home on 14 September 2022 (the date of separation).[9] The father resided in the former marital home from 14 September to 22 September 2022, without the mother and children. The mother and children returned to the property on 28 October 2022 and from that date had exclusive possession. The Tribunal has already determined that the enforceable maintenance liability was registered from 30 November 2022. In the Tribunal’s view so much of the council fees that accrued prior to separation and up until the child support case was registered ought not to be credited. Otherwise, the mother would be solely responsible for the council rates expense incurred prior to separation. Furthermore, in a context where there is no evidence that the father was contributing to the costs of the children prior to registration of the assessment the Tribunal would not be persuaded that the full expense of the council rates incurred during the period 14 September to 29 November 2022 should be credited to the child support liability.
[8] Folio 23
[9] Folio 24
Like the council rates, the water accounts for the former marital home are in the father’s name. Again, this makes sense as he is the legal owner of the property. Following the same logic outlined above, the Tribunal is of the view that so much of the water expense that accrued prior to the registration of the case ought not be credited ($105.15).[10]
[10] Water charges were for the period 1 November 2022 to 28 February 2023 totalled $435.12/120 days in the period = $3.63 per day. From 1 to 29 November 2022 = 29 days x $3.63 = $105.15. $435.12 - $105.15 = $329.97.
As outlined above, the Guide states that a utility account need not be in a payee’s name for them to be liable to meet the cost. The Tribunal is not persuaded that all or part of remaining utility charges ought not to be credited.
The Tribunal concludes that in respect of the three non-agency payments made by the father a total of $2,788.85 ought not to be credited pursuant to 71D of the Act.

DECISION

·      $0 in respect of the council rates paid on 16 March 2023;
·      $329.97 in respect of a water usage, water service and water waste service charge paid on 16 March 2023; and
·      $332.19 in respect of a water service and water waste service charge paid on 30 June 2023.

…
Where the payer makes payments for the payee's home, for which they and the payee are jointly responsible, the Registrar will credit only the payee's share. In the absence of evidence to the contrary, this will be half the total amount…
…
Example: The parents separate in March 2019 and the payee continues to live in the home they shared. The home has gas connected, which is in the payer's name because the payer had originally organised the connection when they had moved into the home. The payer pays a gas account (which is in the payer's name) of $500 in November 2019, which covers the period from 1 July 2019 until 30 September 2019. The payee and children were residing in the home and thus solely benefited from the payment of the gas bill. The payer applies for credit of this $500 as a prescribed non-agency payment. The Registrar will credit this amount.
Example: Payer Theo and payee Nenne hold equal shares in the home in which Nenne continues to live. Theo applies to have payments for electricity and council rates credited as prescribed non-agency payments. Both bills have been issued in Theo's name. As Theo and Nenne are jointly liable for payment of council rates, the Registrar will credit 50% of the payment, being Nenne's share of the payment. As Nenne is solely liable for payment of the electricity account, the Registrar will credit 100% of the account as a prescribed payment.

[2024] AATA 2024

29 May 2024

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Statutory Construction

Judicial Review

Remedies

Jurisdiction