Price and Price (Child support)

[2019] AATA 4857

Price and Price (Child support) [2019] AATA 4857 (17 October 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC017128

APPLICANT:  Mr Price

OTHER PARTIES:  Child Support Registrar

Ms Price

TRIBUNAL:Member K Buxton

DECISION DATE:  17 October 2019

DECISION:

The decision under review is varied such that, as at 14 May 2019 when Ms Price applied for collection of child support on her behalf by the Registrar, the amount of $351.53 in child support remained unpaid by Mr Price for the period 29 March 2019 to 13 May 2019.

CATCHWORDS

CHILD SUPPORT – opt-in arrears – whether there were unpaid amounts – application for collection of unpaid amounts should be accepted – 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 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 Price has been assessed to pay child support to Ms Price for their [Child 1], who has been recorded by the Child Support Agency (CSA) as being in Ms Price’s 100% care. The payment of child support can be a private matter between the parents. Alternatively, it can be registered for collection by the CSA. On 14 May 2019 Ms Price applied pursuant to section 25 of the Child Support (Registration and Collection) Act 1988 (the Act), to have the CSA collect payments of child support on her behalf from Mr Price. She also applied, pursuant to section 28A of the Act, to have the CSA collect any unpaid amounts payable under the child support liability in relation to the time after the child support case was registered up until the day prior to her application to collect, being the period 29 March 2019 to 13 May 2019 (the “arrears period”).

2. On 25 May 2019 the CSA accepted Ms Price’s application to the CSA for collection of child support payments from Mr Price from 14 May 2019 and arrears in the sum of $2,801.33 for the arrears period.

3. Mr Price objected to the CSA’s decision to collect arrears. Mr Price stated that he had made private payments via a credit card used by Ms Price and that those payments were intended for child support. The objection was disallowed and Mr Price applied to the tribunal for review of that decision.

4. The tribunal hearing was held on 17 October 2019. In reaching its decision, the tribunal has considered the sworn evidence given by Mr Price and Ms Price, who participated in the hearing by telephone and documentation provided by the CSA (marked exhibit 1).

CONSIDERATION

1. The central question for the tribunal is whether, as at 14 May 2019, any amount of child support for [Child 1] remained unpaid by Mr Price for the arrears period. Mr Price was assessed for the arrears period to pay child support to Ms Price for [Child 1] at the rate of $426.23 per week, totaling just over $2,800 for the arrears period.

2. During the arrears period Mr Price made deposits into a credit card account operated in the names of both parents.  However, both parents accept that Mr Price did not use that account after separation in February 2019 and that Ms Price used the account for purchases for the child. Therefore, rather than making cash payments to Ms Price for child support, Mr Price had deposited monies into the credit card account which has been available for her use. Ms Price stated that Mr Price had not made payments of child support to her during the arrears period. However, the tribunal is satisfied based on the available evidence that the deposits made by Mr Price to repay credit card debt incurred by Ms Price during the arrears period in meeting the child’s expenses was in the nature of child support and it is proper to accept those payments as such.

3. The material before the tribunal shows that three deposits were made by Mr Price into the joint credit card account during the arrears period, being $1,000 on 1 April 2019, $950 on 30 April 2019 and $500 on 7 May 2019. It is proper to regard Mr Price as having made payments totaling $2,450 into the joint credit card account during the arrears period and which have been available for child support, and which have been used to meet the child’s needs. When the payments totaling $2,450 are deducted from $2,801.53, being the total child support payable in that period, the amount of $351.53 in child support remained unpaid.

4. Mr Price made a further payment of $1,664.10 on 29 March 2019 for “Ski trip” and “[private health insurance]”. Both a ski trip and private health cover are discretionary expenses which the parents may choose to incur, but would not ordinarily be included in the child support assessment as proper costs of the child, therefore the payment will not be considered as in the nature of child support.

5. Section 28A requires the Registrar to collect child support which is “unpaid” in the arrears period. It follows that, when the application for collection was made by Ms Price on 14 May 2019, the amount of $351.53 in child support remained “unpaid” by Mr Price during the arrears period. As the tribunal has reached a different decision to that under review, that decision is set aside and a decision substituted which gives effect to these findings.

DECISION

The decision under review is varied such that, as at 14 May 2019 when Ms Price applied for collection of child support on her behalf by the Registrar, the amount of $351.53 in child support remained unpaid by Mr Price for the period 29 March 2019 to 13 May 2019.