Mortimer and Beringer (Child support)

[2024] AATA 479

Mortimer and Beringer (Child support) [2024] AATA 479 (23 January 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/CC026715

APPLICANT:  Mr Mortimer

OTHER PARTIES:  Child Support Registrar

Ms Beringer

TRIBUNAL:Member C Breheny

DECISION DATE:  23 January 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – non-agency payment - refusal to credit - whether payment mistakenly made by liable parent to carer entitled to receive should be credited – no mutual intention –- 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 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 Mortimer and Ms Beringer are the separated parents of [the child], born October 2005. A child support case has been registered with Services Australia – Child Support (Child Support) since 3 January 2007 and was registered for collection from 28 May 2013. Mr Mortimer was assessed as liable to pay child support to Ms Beringer on the basis that Ms Beringer had greater than primary care (100%) of [the child]. The child support case ended on 17 November 2023.

2. On 16 December 2022 Mr Mortimer contacted Child Support and advised that he had made a payment of $330 directly to Ms Beringer’s bank account on 13 December 2022. Ms Beringer was contacted and she advised that child support had not been privately collected for many years. She could not understand why Mr Mortimer had made the payment. She did not accept that the payment was mutually intended to be in lieu of Mr Mortimer’s child support liability.

3. On 13 January 2023 a decision was made to credit the amount of $330 against Mr Mortimer’s child support liability. On 19 April 2023 Ms Beringer objected to the decision and applied for an extension of time to lodge her objection. She was granted an extension of time on 27 July 2023 and, on the same date, Mr Mortimer was notified of Ms Beringer’s objection.

4. Mr Mortimer responded to the objection on 8 August 2023 and on 31 August 2023 a Child Support objections officer allowed Ms Beringer’s objection. The objections officer noted that Ms Beringer did not agree that the amount of $330 should be credited against Mr Mortimer’s child support liability.

5. On 5 September 2023 Mr Mortimer applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal for an independent review of Child Support’s decision. A hearing into Mr Mortimer’s application for review was held on 23 January 2024. Mr Mortimer attended the hearing by telephone and gave sworn evidence. Ms Beringer elected not to participate in the hearing. I had before me the statement and documents provided by Child Support pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975, received on 17 October 2023 and numbered 1–92.

LEGISLATIVE FRAMEWORK

1. The legislation relevant to this review is contained in the child support law, in particular the Child Support (Registration and Collection) Act 1988 (the Act).

2. Child Support can credit payments made by a liable parent directly to the payee against an enforceable maintenance liability under certain circumstances.

3. The term “enforceable maintenance liability” is defined in subsection 4(1) of the Act as a registered maintenance liability. A “registered maintenance liability” is defined by subsection 4(1) as one that is registrable under sections 17 and 18 of the Act. This includes a child support liability that arises under a child support assessment that is registered for collection by Child Support. In this case there is no dispute that an enforceable maintenance liability existed from 28 May 2013.

4. Section 71 of the Act provides for payments made to payees to be credited if there is an “enforceable maintenance liability” (that is, child support is being collected by Child Support) and it was intended by both the payer and the payee that the payments are to be credited against the maintenance liability. This section relevantly states:

   Direct payments to payee

   (1)  Subject to section 71D, if:

   (a)  the payee of an enforceable maintenance liability receives from the payer an amount intended by both the payer and the payee to be paid in complete or partial satisfaction of an amount payable under the liability in relation to the child support enforcement period; and

   (b)  the payer or the payee applies to the Registrar to have the amount received by the payee treated as having been paid to the Registrar;

   the Registrar shall, in spite of section 30, credit the amount received by the payee against the amount payable under the enforceable maintenance liability.

   [emphasis added]

5. I note here that section 71C of the Act allows for the gradual crediting of payments (up to 30% of the child support liability for a period) where they fall into categories set out in regulation 5D of the Child Support (Registration and Collection) Regulations 1988 (the Regulations) regardless of the parents’ intentions. This section however does not apply in this case, as the payment under review is not a “prescribed payment” in accordance with the Regulations.

6. Section 71 is subject to section 71D of the Act which provides that the Registrar may refuse to credit an amount under that section if satisfied that, in the circumstances of the particular case, the amount ought not to be credited.

ISSUES AND CONSIDERATION

1. There is no dispute that Mr Mortimer made a payment of $330 on 13 December 2022 directly into Ms Beringer’s bank account. The payment was identified as “Child Support”. The issue for me to determine is whether this payment ought to be credited against Mr Mortimer’s child support liability.

Mr Mortimer’s evidence

1. Mr Mortimer said that he had never claimed that the payment of $330 was a “mutually agreed non-agency payment” made in lieu of his child support liability. He said he transferred the payment to Ms Beringer in error. It was meant to be paid to his child support account.

2. Mr Mortimer explained that he has been paying a minimum annual rate of child support for many years. He usually meets his child support liability by making one (or two) annual payments directly to Child Support. On this occasion he made a mistake and chose an incorrect account from the “dropdown box” on his internet banking app. He had kept an old bank account number for Ms Beringer dating back to the time when the liability was privately collected (prior to May 2013). He chose the incorrect account by accident and when he realised his mistake, he contacted Child Support to advise that he made a payment directly to Ms Beringer instead of to his child support account.

3. Mr Mortimer said that he was under the impression (from discussions with case officers and from the decision made on 13 January 2023) that Child Support and Ms Beringer had accepted the payment as being a payment in lieu of his child support liability and he noted that the payment was gradually drawn down and disbursed to Ms Beringer over the following months.

4. Mr Mortimer submitted that, although he is currently in receipt of age pension payments only, he was not “worried about the money” and did not wish to put any stress on Ms Beringer. He noted however that Child Support made “many errors” in this case. He relied on the first decision (13 January 2023) only to find out eight months later (objection decision 31 August 2023) that the first decision was incorrect. Had he been told immediately that he needed to establish “mutual intent” for the money to be credited to his account, he could have approached his bank to reverse the transaction and the matter would have been resolved straightaway. Mr Mortimer stated that “miscommunication” from Child Support (as he never claimed “mutual intent’) and the unusually long time it took for the matter to be clarified, resulted in a financial loss for him. Mr Mortimer suggested that he was “owed an apology” by Child Support.

Ms Beringer’s evidence

1. Ms Beringer did not participate in the hearing.  Records show that she told Child Support on 19 December 2022 (folio 24) that payments had been collected by Child Support for the past 10 years. There was no agreement regarding a private payment and she was not accepting the payment made by Mr Mortimer as being “mutually intended” to be for child support.

2. Ms Beringer contacted Child Support again on 31 March 2023 (folio 35), as she could not understand why the decision of 13 January 2023 was made. She thought she had made it clear on 19 December 2022 that there had been no “mutual intent” regarding the payment of $330 made by Mr Mortimer. She was advised to lodge an objection and apply for an extension of time. The case manager noted they would post the relevant forms to her.

3. Ms Beringer lodged her objection on 19 April 2023, having received the paperwork from Child Support on 13 April 2023 (folios 38–43). In her objection Ms Beringer noted that her communication with Child Support is via letter (Australia Post) or telephone, however the decision of 13 January 2023 was sent electronically to her “myGov” account. She only accessed that account “by chance” for another matter and discovered the Child Support decision.

4. Ms Beringer further stated that there was nothing in her bank account which alerted her to the fact that the deposit made on 13 December 2022 was from Mr Mortimer, as all payments made by Child Support are labelled “child support” on her banking app. She submitted that Mr Mortimer never communicated with her about the payment, and she did not accept the payment as being in lieu of his child support liability.

5. Ms Beringer contacted Child Support again on 22 May 2023 (folio 44) to inquire about her objection and was told that “due to a severe backlog” it would take 6–8 weeks for the objection to be allocated.

Conclusion

1. I have carefully considered the evidence before me. The question for me to determine is whether the payment of $330 made 13 December 2022 was intended by both Mr Mortimer and Ms Beringer to be in satisfaction of Mr Mortimer’s child support liability. I note in this regard the decision of Child Support Registrar & Thurber [2013] FCCA 417, wherein Scarlett J considered the issue of mutual intent for the purpose of section 71 of the Act and stated (at [69] and [70]):

   It is clear that both parties must intend that the payment should be regarded as child support. It is not sufficient for the payer to make a payment and ask that it be treated as child support, unless the other party agrees. Without a mutual intention, a payment directly to the payee instead of to the Registrar will not be classified as a non-agency payment and credited against the payer’s child support liability.

   [emphasis added]

2. In this case Mr Mortimer submitted that he did not claim that the payment was a mutually agreed non-agency payment to be credited against his child support liability. He acknowledged that he had no communication with Ms Beringer about the payment. He said that the payment was made “in error”; he selected the wrong account “by accident”. The payment was supposed to be transferred to his child support account.

3. Ms Beringer was equally clear in her statements to Child Support that there had been no communication from Mr Mortimer, as they have not spoken to each other for many years and that she did not accept the payment of $330 to be in lieu of a child support payment from him.

4. Based on the evidence from both parties I am satisfied that there was no mutual intention that the payment of $330 made by Mr Mortimer on 13 December 2022 was in complete or partial satisfaction of his outstanding liability. Mr Mortimer never intended for the payment to go into Ms Beringer’s bank account. He made an error on his online banking app.

5. I have reached the same conclusion as the objections officer, and I will therefore affirm the decision under review.

6. For completeness I will note that Mr Mortimer expressed great dissatisfaction with the customer service provided by Child Support. He suggested miscommunication and long delays in decision-making resulted in a financial loss to him. I appreciate Mr Mortimer’s comments however these matters are outside this Tribunal’s jurisdiction.

DECISION

The decision under review is affirmed.