Odell and Tonner (Child support)

[2019] AATA 1198

Odell and Tonner (Child support) [2019] AATA 1198 (21 March 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/AC015681

APPLICANT:  Mr Odell

OTHER PARTIES:  Child Support Registrar

Miss Tonner

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  21 March 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – non-agency payment - whether payments made to a third party are in lieu of child support - both parents did not intend - 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

1. Mr Odell and Miss Tonner are the parents of [Child 1] (born November 2010) and [Child 2] (born August 2012).  There has been a child support assessment in place since 15 March 2015 and Mr Odell is the liable parent.

2. On 5 April 2018 Mr Odell applied to the Department of Human Services, Child Support (the Child Support Agency) for credit of six non-agency payments totalling $2,112.30 made on 10 May 2015, 4 June 2015, 15 June 2015, 29 June 2015, 13 July 2015 and 10 March 2018.

3. On 19 June 2018 the Child Support Agency made the decision to accept the non-agency payments made by Mr Odell and credit the payment of $2,112.30 (the original decision).

4. On 13 August 2018 Miss Tonner objected to this decision and, following the granting of an extension of time, the Child Support Agency allowed the objection on 20 December 2018.  The Child Support Agency made the decision to not accept the payments made on 10 May 2015, 4 June 2015, 15 June 2015, 29 June 2015, 13 July 2015 totalling $2,012.30 but to accept the payment made on 10 March 2018 of $100.00 (the objection decision).

5. On 24 December 2018 Mr Odell applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

6. The matter was considered on 21 March 2019.  Mr Odell and Miss Tonner gave evidence on affirmation by conference telephone.  An official translator was also present and provided translation on affirmation.  The Child Support Agency provided the Tribunal and the parties with a bundle of documents relevant to the review (111 pages).  Mr Odell provided additional evidence prior to the hearing and copies were distributed to the parties (A1-A150).

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection Act) 1988 (the Act).

2. When a child support liability is registered under the Act for collection, the amount payable is a debt due to the Commonwealth and must be paid to the Child Support Agency not the payee.  In some circumstances the Child Support Agency may credit payments made directly to a payee or to a third party against a child support liability that is registered for collection (sections 71 and 71A of the Act).  The Child Support Agency refers to the credits under sections 71 and 71A as ‘non-agency payments’.

3. The issue which arises in this case is whether or not any of the payments made by Mr Odell can be credited against his child support liability.

CONSIDERATION

1. Mr Odell told the Tribunal he had paid the car registration for Miss Tonner as well as the other four direct payments to her in 2015 as child support.  Mr Odell said he did so because he knew Miss Tonner was facing financial hardship at the time and thought the payments would be of assistance.  Mr Odell said he also made a cash payment in 2018 of $100.00.

2. Mr Odell explained that although he was unable to communicate with Miss Tonner at the time due to a violence restraining order against him, he was aware she needed the funds because Miss Tonner had been communicating with mutual friends and asking for money.  Mr Odell said he had hoped the additional funds would make it easier for Miss Tonner to meet the needs of their children.  Mr Odell said his only aim was to help in supporting the children.

3. The Tribunal notes in evidence from the Child Support Agency a receipt issued by the Western Australian Department of Transport [in] May 2015 for vehicle licence renewal.  The receipt is for $662.30.  A  [bank] statement in the name of Mr Odell shows a corresponding purchase for the same amount made [in] May 2015.  The Tribunal also notes in evidence, [other] bank statements in the name of Mr Odell showing payments to Miss Tonner of $250.00 on 4 June 2015, $300.00 on 15 June 2015, $400.00 on 29 June 2015 and $400.00 on 13 July 2015.  The vehicle licence payment and the four direct payments total $2,012.30.

4. Mr Odell reiterated he only made the payments in addition to his child support as a result of requests made indirectly by Miss Tonner.

5. Miss Tonner told the Tribunal she did not dispute that Mr Odell had paid the vehicle licence renewal and the other direct payments in 2015.  Miss Tonner said she did not consider these payments to be instead of child support but rather money that Mr Odell owed her.

6. Miss Tonner said after the relationship with Mr Odell ended she was forced to leave the family home and moved to a refuge with the children.  Mr Odell was to sell the furniture in the family home and pay her half.  In addition she said Mr Odell owed her for household bills which she had paid when she was not living at the family home.  Miss Tonner said she believed the money Mr Odell had paid her in 2015 was repayment of what she was owed.

7. Miss Tonner told the Tribunal she agreed the $100.00 payment made by Mr Odell on 10 March 2018 was in lieu of child support.

8. Section 71 of the Act provides for a payment received by the payee of an enforceable maintenance liability direct from the payer to be credited against the amount payable under the liability. The amount received must be 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 (paragraph 71(1)(a)).  Section 71A provides for a payment made by the payer of an enforceable maintenance liability to a third party to be credited against the amount payable under the liability. The amount paid must partially or completely satisfy a debt owed by the payee, the payer or both the payer and the payee (paragraph 71A(1)(a)). The amount paid, or a part of the amount paid, must be 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 (paragraph 71A(1)(c)).

9. It is not in contention, and the Tribunal finds, that Mr Odell made payments totalling $2,112.30 to Miss Tonner and a third party.  Miss Tonner has stated only one of these payments, for $100.00, was intended as child support.  Mr Odell disagrees and believes all payments were intended as child support.

10. In circumstances where parents disagree about a payment being intended as child support the ‘Child Support Guide’ provides the following at 5.3.1 in terms of guidance:

    Where the parents disagree, the Registrar will seek evidence from both parents and decide on the basis of that evidence whether the relevant intention existed when the payment was made. 

    The Registrar will seek oral statements (or written, if either parent cannot be contacted by telephone) from both parents about their intention at the time the payment was made and the circumstances surrounding the payment. Before making a decision, the Registrar will discuss the evidence with both parents, so that they have an opportunity to respond or expand on their statements. 

11. Although not bound by policy as set out in the ‘Child Support Guide’, the Federal Court has held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation.

12. The Tribunal is not satisfied, based on the evidence provided, that the payment made [in] May 2015 for vehicle licence renewal and the direct payments made on 4 June 2015, 15 June 2015, 29 June 2015 and 13 July 2015 were intended by both parents as child support.

13. The Tribunal is satisfied the payment of $100.00 made by Mr Odell on 10 March 2018 was intended by both parents as child support and was made during an enforceable maintenance period as the Child Support Agency was collecting child support at that time. 

14. The Tribunal finds the payment of $100.00 made on 10 March 2018 satisfies section 71 of the Act and can be credited as a non-agency payment against Mr Odell’s child support liability.

DECISION

The decision under review is affirmed.