Milsome and Tilstead (Child support)
[2024] ARTA 437
•13 November 2024
Milsome and Tilstead (Child support) [2024] ARTA 437 (13 November 2024)
Applicant/s: Mr Milsome
Respondent: Child Support Registrar
Other Parties: Ms Tilstead
Tribunal Number: 2024/SC028322
Tribunal: Member M Baulch
Place:Sydney
Date:13 November 2024
Decision:The Tribunal affirms the decisions under review.
CATCHWORDS
CHILD SUPPORT – non-agency payments – whether payments made in relation to home loans for the former family home should be credited against liability to pay child support – decision under review affirmed
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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.
Statement of Reasons
BACKGROUND
This application for review is about whether or not any payments made by Mr Milsome in relation to home loans for the former family home should be credited against Mr Milsome’s liability to pay child support to Ms Tilstead.
Mr Milsome and Ms Tilstead are the separated parents of three children. Mr Milsome has been assessed as liable by Services Australia – Child Support (Child Support) to pay child support to Ms Tilstead, with Child Support collecting the liability from Mr Milsome on Ms Tilstead’s behalf.
On 15 January 2024, Mr Milsome asked Child Support to credit a number of home loan payments he had made against his child support liability. On 31 January 2024, Child Support considered the request. It determined that Mr Milsome had made payments totalling $22,232.97 over the period 29 July 2022 to 17 February 2023, but decided none of those payments could be credited against Mr Milsome’s child support liability (the decisions under review).
Mr Milsome objected to those decisions and, on 22 July 2024, that objection was disallowed. On 29 July 2024, Mr Milsome applied to the Administrative Appeals Tribunal (the AAT) seeking an independent review of Child Support’s decisions. On 14 October 2024, the AAT was abolished and replaced by the Administrative Review Tribunal (the Tribunal), which is now required to determine Mr Milsome’s application for review.
A hearing into the application for review was held by the Tribunal on 13 November 2024. Mr Milsome and Ms Tilstead both discussed the application for review with the Tribunal by conference telephone and both gave evidence under affirmation during the hearing. A representative of the Child Support Registrar (the Registrar) did not participate in the hearing.
The Tribunal had before it 166 pages of documents provided by the Registrar to the AAT, and the parties to the review, pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, copies of which Mr Milsome and Ms Tilstead both confirmed they had received prior to the Tribunal hearing.
ISSUE
The legislative provisions relevant to this application for review are contained within the Child Support (Registration and Collection) Act 1988 (the Act).
The issue to be determined by me in this review application is whether or not any of the payments made by Mr Milsome towards two home loans should be credited towards Mr Milsome’s enforceable maintenance liability.
CONSIDERATION
Where a parent has applied to Child Support for an assessment of child support, they may also apply to have that liability entered into the Child Support Register and be collected on their behalf from the liable parent by Child Support. Once this occurs, the liability is then “enforceable” by Child Support against the liable parent and, pursuant to section 30 of the Act, the liability becomes a debt due to the Commonwealth owed by the liable parent.
Mr Milsome and Ms Tilstead have had a child support case registered with Child Support since 2005. More recently, that assessment did not require Mr Milsome to pay any child support to Ms Tilstead. That changed from 30 June 2022 when a change to the care percentages applying to the child support assessment occurred, such that Mr Milsome became liable to pay child support to Ms Tilstead, with the liability being collected by Child Support.
The evidence shows that Mr Milsome made numerous payments towards home loans for the home in which he, Ms Tilstead and their children had previously lived. Ms Tilstead did not dispute that those payments were made during a period of time during which she and the children remained in the house and Mr Milsome lived elsewhere.
In certain circumstances, the Act provides that amounts paid to third parties by the payer of an enforceable maintenance liability may be treated as if they were paid to Child Support. Child Support refers to these types of payments as “non-Agency payments” and there are different provisions of the Act dealing with different types of payments.
Non-Agency payment
Under section 71A of the Act, either parent may apply to the Registrar for a payment made by the payer of an enforceable maintenance liability, that partially or completely satisfies an amount owed by the payer, the payee or both, as having been made to the Registrar. Section 71A of the Act further states that the payment must have been intended by both the payee and the payer to be paid in partial or complete satisfaction of an amount payable under the liability in relation to the child support enforcement period.
In essence, the requirements that must be met before the Registrar can credit such a payment under section 71A of the Act are:
· The payment must have been actually made; and
· The payment must have been made during a period when the maintenance liability was enforceable by Child Support; and
· Both the payee and the payer must have intended that the payment was paid in complete or partial satisfaction of an amount payable under a liability in relation to the child support enforcement period.
I was satisfied that Mr Milsome made home loan repayments totalling $22,232.97 during the period a maintenance liability existed and which was being enforced by Child Support. If both parents intended that those payments were paid in complete or partial satisfaction of an amount payable under a liability, then section 71A of the Act potentially applies and they can be credited against Mr Milsome’s enforceable child support liability.
Mr Milsome submitted that both he and Ms Tilstead intended for his mortgage payments to be made in lieu of child support and stated that this intention was the subject of discussions between them and is spelt out in part of an email sent to him by Ms Tilstead on 26 January 2022 (at folio 79) which included the statement “I’m not claiming child support from you because you will not have to rent somewhere”.
Ms Tilstead’s evidence was that Mr Milsome’s bail conditions required him to live with his brother, so that he had not incurred the cost of renting elsewhere. She stated that by June 2022, costs of living and costs of raising the children meant that it became necessary for her to seek child support from Mr Milsome. She denied that there was ever a mutual intention that the mortgage payments made by Mr Milsome be in lieu of child support.
Ultimately, the point in time at which the intention of the parties is assessed is the point in time that the payments Mr Milsome is seeking to have credited were made; being those made after he became liable to pay child support from 30 June 2022. Whatever Ms Tilstead’s views about seeking child support were in January 2022, her actions in seeking child support from Mr Milsome in June 2022 suggest that she did not intend, at that point in time, for the mortgage payments to be in lieu of child support. Mr Milsome has put forth no evidence of any discussions or correspondence between him and Ms Tilstead that occurred after June 2022 in support of his claimed mutual intention.
Having considered the evidence, I was not persuaded that Ms Tilstead intended mortgage payments made from June 2022 to be in lieu of an enforceable maintenance liability. It is therefore not possible to credit the payments pursuant to section 71A of the Act.
Prescribed non-Agency payment
Section 71C of the Act provides for payments of the kind prescribed by regulation to be credited against the amount payable under the enforceable liability for a payment period, up to a maximum of 30% of the amount payable. This provision may apply even in circumstances where there was no intention by one or both parties that the particular payment was to be in lieu of child support.
The payment must be a payment of the kind specified in regulation 19 of the Child Support (Registration and Collection) Regulations 2018 (the Regulations) (paragraph 71C(1)(b) of the Act). Regulation 19 states that specified payments are payments of the following kinds:
· Child care costs for the child who is the subject of the enforceable maintenance liability;
· Fees charged by a school or pre-school for that child;
· Amounts payable for uniforms and books prescribed by a school or pre-school for that child;
· Fees for essential medical and dental services for that child;
· The payee’s share of amounts payable for rent or a security bond for the payee’s home;
· The payee’s share of amounts payable for utilities, rates or body corporate charges for the payee’s home;
· The payee’s share of repayments on a loan that financed the payee’s home; and
· Costs to the payee of obtaining and running a motor vehicle, including repairs and standing costs.
The evidence shows that Child Support had previously credited amounts using this provision, although I noted Mr Milsome’s evidence that it was not he that sought the payments to be credited.
It is uncontroversial that the former family home was in Mr Milsome’s name and the two home loans were also solely in his name. I concluded that as Ms Tilstead had no legal liability in relation to the home loans that the repayments made by Mr Milsome from June 2022 were not payments of the type prescribed by the Regulations. I therefore found that they cannot be credited against the maintenance liability under section 71C of the Act.
As neither section 71A nor 71C of the Act apply, the home loan payments made by Mr Milsome cannot be credited against Mr Milsome’s child support liability. Therefore, and for these reasons, I decided to affirm the decisions under review.
DECISION
The Tribunal affirms the decisions under review.
| Date(s) of hearing: | Wednesday, 13 November 2024 |
| Representative for the Applicant: | Unrepresented |
| Representative for the Other party: | Unrepresented |
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