Monk and Archibald (Child support)

Monk and Archibald (Child support) [2022] AATA 5198 (9 January 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/BC024693
APPLICANT:  Mr Monk
OTHER PARTIES:  Child Support Registrar
Ms Archibald

TRIBUNAL:Member M Martellotta
DECISION DATE: 9 January 2022
DECISION:

The decision under review is affirmed

CATCHWORDS

CHILD SUPPORT – non-agency payment - prescribed payment for school fees - payment correctly refused - 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

This review concerns the issue of whether all or part of an amount are to be credited as non-agency or “prescribed non-agency payments” (PNAPs) against Mr Monk’s child support liability.
There is an active case for child support which has been registered with Services Australia (Child Support) since 7 September 2012. The child of the assessment is registered as being in the mother’s 100% care.
On 14 June 2022 Mr Monk advised Child Support that he had paid $1,365.50 towards the child’s school fees which he wanted credited against his child support liability. On 11 July 2022 Mr Monk advised Child Support that he had paid $1,247 which he wanted credited against his child support liability.
On 11 July 2022 Child Support refused Mr Monk’s applications. Mr Monk lodged his objection to the decision on 18 July 2022. His objection was disallowed by a Child Support objections officer on 16 September 2022. On 19 September 2022 Mr Monk lodged his application with the tribunal.
Mr Monk and Ms Archibald participated in a hearing conducted by telephone on 12 December 2022. They each presented evidence and made submissions. Other evidence included the Child Support statement and documents relevant to the case. The tribunal deferred making a decision to provide the parties the opportunity to provide further evidence. The tribunal also obtained information from the child’s school. All of these materials have been considered.

ISSUES

The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (the Act) and the Child Support (Registration and Collection) Regulations 2018 (the Regulations).
Child support legislation is interpreted by the Agency with the aid of the Child Support Guide (the Guide). The tribunal is not bound by law to apply the policy as set out in the Guide, but provided the policy is consistent with the legislation, it is required to have regard to it and in the ordinary course follow it.[1]
[1] See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
The issue which arises in this case is whether payments made by Mr Monk are to be credited against his child support liability.

CONSIDERATION OF LEGISLATION, SUBMISSIONS AND EVIDENCE

Legislation

Provisions of the Act provide that certain payments made by a payer can be credited against their child support liability. The requirements for such payments include that the payer and payee mutually intended that when the payment was made it was to be a payment in lieu of child support.[2]
[2] Section 71A of the Act deals with payments to a third party.
Section 71C of the Act and Regulation 19 of the Regulations allows the Agency to credit up to 30% of certain payments towards a payer’s child support liability regardless of the intention of the parents at the time the payment was made (that is, regardless of whether or not the payments were intended to be in lieu of child support), except if, at the time the payment was made, the payer had at least regular care of any of the children to whom the relevant administrative assessment relates to and at the time the Registrar applies this section, the payer does not have at least regular care. The Agency refers to these payments as PNAPs. Such payments must be of the types specified under the Regulations.
The Child Support Registrar (and on review, the tribunal) may refuse to credit amounts under sections 71A or 71C of the Act if satisfied that, in the circumstances of the particular case, the amount ought not to be credited (section 71D of the Act).

Submissions and evidence

Mr Monk submits that Child Support has made the wrong decision because it refused to credit his payments towards school fees on the basis that there was no mutual intent. He submits that the Agency has not properly considered the payments as PNAPs which do not require a finding of mutual intent. He submits that there is no basis for the payments not to be credited pursuant to section 71D of the Act.
Mr Monk confirmed that at the time the payments were made, he did not have any care of the child. In relation to the school fee arrangements, he said that:
a)His daughter attends an Anglican school.
b)He and Ms Archibald had agreed in consent orders that he would meet the tuition costs of the school fees from Years 1 to 6 and other costs would be split equally.
c)The consent orders did not cover high school fees after primary school, but the child continued on at the same school. Their daughter, however, was struggling at that school and so halfway in 2022 she changed to another school, [School 1].
d)The school fees that he seeks to be credited relate to the Anglican school prior to the changes made in mid-2022.
e)From term 1, 2022, he and Ms Archibald continued to have joint parental responsibility for the child. They did not have an express agreement about who would pay the school fees nor was there any express agreement that he would continue to pay 50% of the tuition fees given the child had ceased primary school.
f)At that point in time, he had 0% care, and on this basis he understood that for this reason any payment he made towards the school fees would be credited as a PNAP.
g)He would pay whatever portion of the fees was not paid by Ms Archibald and he is not separately responsible to pay 50% of the school fees. There is no agreement and no court order that he continue to pay 50% share of the fees once their daughter started high school. He is only required to enrol his daughter in the school on the basis that he and Ms Ashly have shared parental responsibility. He did not have any care of the child and on this basis, any payments paid towards the school fees should be credited as a PNAP.
h)He agrees that he un-enrolled his daughter from the Anglican school at the end of 2021 because Ms Archibald would not engage with him on a discussion about the arrangements for high school and he saw this as the only way to get her to reach some agreement. They had a lot of discussions around this time which linked his payment towards school fees with him having a greater level of care. His position was that unless he had a greater level of care then he would claim his contributions as PNAPs.
i)He said that if he had greater than 12% care he was happy to pay 50% of the school fees but he was not happy to pay that unless he had a greater level of care.
j)Since October 2022 there has been a change in care and he now has 65% care of the child.
The tribunal referred Mr Monk to school fee accounts which name both him and Ms Archibald. He disagrees that he is separately or jointly responsible for the fees. He says that the fact that he has jointly enrolled the child in the school does not mean he has any joint or sole responsibility for the fees. The only reason he was paying 50% was on the basis he would apply to have his share credited against his child support liability.

Ms Archibald’s submissions and evidence

Ms Archibald submits that the decision not to credit the payments is the correct decision. She says that this is a case in which section 71D was correctly applied in the particular circumstances of this case. Her evidence is that:
a)She and Mr Monk mutually agreed for the child to be privately educated and that they would share the costs of her education.
b)She pays higher costs for the child’s participation in high-level [sports] Allowing Mr Monk’s contribution towards the school fees as a PNAP means that she carries the greater burden of the child’s costs.
c)Despite the consent orders mandating that Mr Monk would pay the child’s school fees during primary school, he sought to have these credited against his child support liability so in effect, she was carrying the costs despite the orders.
d)At the end of 2021 Mr Monk unilaterally took his name off the school enrolment, and ‘unenrolled’ their daughter from the Anglican school. They finally reached an agreement that they would equally meet all the tuition and related education and [sports] costs. They both re-signed the enrolment forms for their daughter to continue at the same school on the basis of that agreement. When it came to payment, Mr Monk would pay his share and then sometimes remind her whether she had paid her half.
Documents before the tribunal included copies of text messages provided by Mr Monk. These were sent by him to Ms Archibald in which he states that he would pay half the school fees when the child spent greater than two nights a fortnight with him, failing which he would claim any payments made as a PNAP. Also in evidence were copies of statement of accounts from the Anglican school in the joint names of the parents. Information provided by that school to the tribunal confirms that:
a)Mr Monk and Ms Archibald jointly enrolled their child for the 2022 academic year on 1 December 2021.
b)Mr Monk and Ms Archibald were jointly and severally liable for the 2022 college fees and levies as per the enrolment contract.
c)The account was issued in joint names and emailed separately to each parent.
In this matter the tribunal is satisfied that on the evidence of the parties, there was no specific agreement that the payments made by Mr Monk towards the school fees were to be in lieu of child support payments as assessed under the child support assessment. The tribunal is satisfied and finds that there was no mutual intention that the payments were to be lieu of child support. This means that section 71A of the Act has no application.
The tribunal next considered whether there was any basis for the payments to be considered PNAPs. The Regulations prescribe that specified payments may be credited, including fees charged by a school for the child. The tribunal is satisfied and finds that:
a)Mr Monk has made payments of school fees directly to a school and this is a payment of a kind specified in the Regulations.
b)On 14 June 2022 Mr Monk paid $1,365.50 and on 11 July 2022 he paid $1,247.
c)At the time the payments were made, Mr Monk was the payer of an enforceable maintenance liability in relation to a payment period, and at the time of payments he did not have regular care of the child.
d)The amount claimed by Mr Monk had not already been credited.
e)Mr Monk now has above regular care of the child.
The tribunal concludes that the provisions of section 71C are satisfied. With regards to the fact that Mr Monk how has above regular care, Child Support policy provides that if a parent at the time of payment had below regular care but subsequently at the time of application care is above regular care then:
…the payer will not receive the benefit of the 30% credit against their monthly liability until those circumstances again cease to exist.[3] The amount claimed is accepted as a prescribed non-agency payment, as the [paying parent] had below regular care of both children at the time the payment was made. However, the [paying parent] will not currently receive the 30% credit against his ongoing liability as he now has regular care of one of the children. If, in the future, the [paying parent] again has below regular care of both children he will start to receive the 30% credit against his ongoing liability.
[3] 5.3.1
Section 71D provides that there is a discretion to refuse to credit an amount if the decision maker is satisfied that the circumstances of the particular case the amount ought not to be credited. The Guide provides discussion of the exercise of this discretion. It notes that relevant circumstances may include cases where:
- The payee’s agreement to credit an amount paid to a third party or payment made as a transfer of property was obtained through coercion or harassment.
- The payer is claiming a credit under CSRC Act section 71C for an expense they regularly meet that was taken into account in a change of assessment decision. For example, the Registrar or a court has reduced the annual rate (or refused to increase it) because the payer usually pays school fees, medical expenses for the child, mortgage or rent payments or any other prescribed payments.
- The payer is claiming credit under CSRC Act section 71C for an expense which they have undertaken to pay in addition to their liability as specified in an agreement between the parents (this does not have to be a child support agreement).
- The payer is claiming credit under CSRC Act section 71C for an expense that they are responsible to pay under the terms of a court order.
- The payer is claiming credit under CSRC Act section 71C for expenses for the child for which they are separately responsible…If the payer claims credit for a payment for which they and the payee are jointly responsible, and the amount does not relate to the payee’s home, the Registrar has no basis of apportioning the payment and must credit the full amount. However, if there is evidence that the parents have explicitly agreed about how much each party will pay, the Registrar will apportion responsibility according to their agreement.
- The payer is claiming a credit under CSRC Act section 71C for loan repayments and they have a history of regularly withdrawing funds from the loan account using its redraw facility.[4]
In this particular case the tribunal notes that there had previously been consent orders whereby Mr Monk was to pay for the child’s school fees. Ms Archibald said that despite this, Mr Monk has previously been able to have fees credited as non-agency payments which meant in effect, she was carrying the burden of both the school fees and the child’s [sports] fees. Agency documents show that Mr Monk had a payment credited to his account as non-agency payments in 2021. [5]
[5] NAP screen at p134
In addition to this, Ms Archibald submits that Mr Monk is jointly and severally liable for their daughter’s school fees in 2022. He unilaterally took the action to ‘un-enrol’ their daughter in order to force an agreement between the parents. Mr Monk agrees that he took this action in order to try to get Ms Archibald to agree to an increase in care and he only re-enrolled their daughter on the basis that he would claim his share of the fees as PNAPs. Ms Archibald disagrees that this was an agreed position but one that Mr Monk has taken upon himself.
The tribunal is satisfied on the advice provided by the Anglican school, that Mr Monk was jointly and severally liable for the child’s school fees. The tribunal is also satisfied that Mr Monk has demonstrated through his actions that he has undertaken to meet 50% of those school fees. This is evidenced by the decision to jointly re-enrol their daughter in December 2021 and the fact that Mr Monk has in fact been meeting 50% of the school fees. The tribunal is not satisfied that there was an agreement between the parents whereby he would only make those payments on the provision that he would claim these amounts back as PNAPs.
To credit the liability in such circumstances would in effect mean that Ms Archibald is meeting the full costs of the school fees including Mr Monk’s share for which he is separately responsible.
For these reasons the tribunal affirms the decision under review not to credit the amounts paid by Mr Monk as PNAPs.

DECISION

The decision under review is affirmed

[2022] AATA 5198

9 January 2022

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Jurisdiction