O’Cain and Racey (Child support)

[2020] AATA 5570

O’Cain and Racey (Child support) [2020] AATA 5570 (24 November 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/BC020059

APPLICANT:  Mr O’Cain

OTHER PARTIES:  Ms Racey

Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  24 November 2020

DECISION:

The decision under review is varied so that the payments referred to in paragraph 11 of the Tribunal’s Reasons for Decision are credited pursuant to section 71A of the Child Support (Registration and Collection) Act 1988.

CATCHWORDS

CHILD SUPPORT – non-agency payment – whether payment made to a third party in lieu of child support – intention of both parents – 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 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 O’Cain and Ms Racey are the parents of four children. A child support case was registered from 28 January 2020 with what is commonly called the Child Support Agency or CSA. Ms Racey has been recorded as providing 100% care to the children. Mr O’Cain has been required to pay child support, which has been collectable by the CSA.

2. In certain circumstances, a payer of child support can make a payment to an entity other than the CSA, and the payment can be credited against the payer’s child support liability. Such payments are referred to as non-agency payments.

3. On 27 February 2020, Mr O’Cain provided a four-page spreadsheet with a chronological list of payments. It included a column entitled “kids”, and the payments in that column totalled $2,402.28. The document concluded: “The total of $2402.28 is to be deducted from the outstanding amount of child support due.” Ms Racey’s name and signature and the date “27/02/2020” appear below that statement.

4. On 8 May 2020, Mr O’Cain provided a chronological list of payments totalling $3,085.04: page 35 of the hearing papers. It includes almost all of the payments totalling $2,402.28.

5. On 12 May 2020 the CSA spoke to Ms Racey. It relevantly noted: “[Ms Racey] advised nothing on the list is mutual intent”. The CSA did not ask Ms Racey about the document she signed on 27 February 2020.

6. On 3 June 2020 the CSA made two decisions. The CSA has always referred to those two decisions as decisions to not credit payments totalling $2,882.99 and $238.05. I note that $2,882.99 + $238.05 = $3,085.04. However, the actual decision notices list payments totalling $2,641.52 and $202.05: pages 45 to 52 of the hearing papers. In a particularly unhelpful move, the CSA listed the individual payments in an apparently random manner. Notwithstanding those irregularities and obstacles, it appears that the CSA decided to not credit any of the payments totalling $3,085.04 which were listed in the document Mr O’Cain provided on 8 May 2020, and I will proceed on that basis.

7. Mr O’Cain objected to those two decisions. An objections officer disallowed his objections. Mr O’Cain applied to the Tribunal for further review. Prior to the hearing, Ms Racey stated that she would not be participating in the hearing. However, she provided additional documentation which was exchanged between the parties.

8. I referred Mr O’Cain to the “kids” payments totalling $2,402.28. He agreed that the payments that were made prior to 28 January 2020 should not be credited as non-agency payments. He agreed that payments of $18.25 and $17.93 on 20 February 2020 had been placed in the wrong column, and were not “kids” payments, and should not be credited as non-agency payments. He agreed that he had cancelled a payment of $550.00 which was to be made on 26 February 2020, and Ms Racey consequently had not received that payment. He submitted that the other payments should be credited as non‑agency payments.

9. Ms Racey’s written submissions included the following:

   The table I signed 27/02/2020 was before I submitted the child support claim under [Mr O’Cain’s] threats and manipulations threatening to quit his job and go on centrelink payments so he did not have to pay child support. I then received legal advice and child support advice stating that all of these payments are not extraordinary payments - hence the reason I am fighting it.

10. Ms Racey appears to be suggesting that a “child support claim” was submitted “under [Mr O’Cain’s] threats and manipulations”, but she signed the document dated 27 February 2020 before the alleged threats and manipulations. The reference to “the child support claim” cannot be a reference to her application to register a child support case; that application was lodged on 28 January 2020. If Ms Racey had participated in the hearing, the matter could have been explored further. As it is, the evidence suggests that she freely consented to having the “kids” payments credited as non-agency payments, and I find accordingly.

11. Section 71A of the Act allows a payment to be credited if certain requirements are satisfied, including a requirement that “the amount paid, or a part of the amount paid, was intended by both the payer and the payee to be paid in complete or partial satisfaction of an amount payable under the enforceable maintenance liability in relation to the child support enforcement period”: subparagraph 71A(1)(b)(ii). For the reasons stated above, I find that both parents held the requisite intention in respect of the payments listed on page 35 from 29 January 2020 to 21 February 2020, apart from the four payments of $18.25 on 31 January 2020, 7 February 2020, 14 February 2020 and 21 February 2020. There is no dispute that the other requirements of section 71A are also satisfied in respect of those payments. Those payments ought to be credited as non-agency payments: sections 71A and 71D of the Act.

12. Section 71C of the Act also allows a payment to be credited if certain requirements are satisfied, including a requirement that the payment falls within one of a number of prescribed categories of payment. Mr O’Cain agreed that none of the other payments on page 35 of the hearing papers fell within any of those prescribed categories. The other payments cannot be credited as non-agency payments pursuant to section 71C of the Act.

DECISION

The decision under review is varied so that the payments referred to in paragraph 11 of the Tribunal’s Reasons for Decision are credited pursuant to section 71A of the Child Support (Registration and Collection) Act 1988.