Reynolds and Mull (Child support)

[2024] AATA 1879

Reynolds and Mull (Child support) [2024] AATA 1879 (23 May 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/BC027573

APPLICANT:  Mr Reynolds

OTHER PARTIES:  Child Support Registrar

Ms Mull

TRIBUNAL:Member P Jensen

DECISION DATE:  23 May 2024

DECISION:

The decision under review is set aside and, in substitution, five payments of $195.39 on 2, 9, 16, 23 and 30 August 2022 and four payments of $475.00 on 3, 10, 17 and 24 August 2022 are credited as non-agency payments pursuant to section 71A of the Child Support (Registration and Collection) Act 1988.

CATCHWORDS

CHILD SUPPORT – non-agency payment – car loan repayments – rent payments – 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

1. Mr Reynolds and Ms Mull are the parents of two children. A child support case was registered with Services Australia – Child Support (Child Support) in June 2022. Mr Reynolds’ child support payable is a liability that he owes to Child Support. He can discharge that liability by making payments directly to Child Support. He can also make payments to third parties and have the payments credited if certain requirements are satisfied. Such payments are commonly referred to as non-agency payments.

2. When the child support case was registered, the parents were separated but still living in the same house (the House). They were co-tenants and jointly liable for the rent. They were also co-owners of a car and jointly liable for the associated car loan repayments.  

3. On 31 July 2022, Mr Reynolds moved to separate premises. Ms Mull and the children continued living in the House. On 30 August 2022, Ms Mull contacted Child Support and applied to have certain payments credited as non-agency payments including five car loan payments of $195.39 on 2, 9, 16, 23 and 30 August 2022 and four rent payments of $475.00 on 3, 10, 17 and 24 August 2022. Child Support noted (at pages 24 and 25 of the hearing papers, with minor typographical errors in the original):

   Discussion regarding the reason for NAP:

   [Ms Mull] adv that would accept payments of half of payments while care was 50/50

   [Ms Mull] adv that would accept 100% of payments from 29/07/2022 when care has changed

   …

   Details:

   Adv by RP [receiving parent, Ms Mull]

   Was evidence provided:

   Evidence is not required for a NAP reported by the payee as per Non Agency Payments (NAPs) (CS)

4. Section 71A of the Child Support (Registration and Collection) Act 1988 (the Act) allows payments to be credited as non-agency payments if certain requirements are satisfied. The only requirement that was potentially in dispute in respect of the nine payments in question was whether “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 [of child support] payable” by Mr Reynolds to Child Support. On 30 August 2022 an original decision‑maker decided to credit the nine payments as non-agency payments.

5. Subsequent applications were made to Child Support to have other payments credited as non-agency payments and those payments were considered under section 71C of the Act. Payments credited under that section are called prescribed non-agency payments because the payments must fall within certain prescribed categories such as “the payee’s share of amounts payable for rent or a security bond for the payee’s home”, and “costs to the payee of obtaining and running a motor vehicle, including repairs and standing costs”: regulation 19 of the Child Support (Registration and Collection) Regulations 2018. Importantly, the requirements for crediting a payment under section 71C do not include a requirement that the payee (i.e. Ms Mull) intended the payment to be credited as a non‑agency payment.

6. On 4 July 2023, Ms Mull belatedly objected to the decision dated 30 August 2022 and she applied for an extension of time in which to object. Child Support granted her extension of time application. On 13 February 2024 an objections officer allowed her objection and decided to credit half of each of the nine payments in question under section 71C of the Act. The objections officer did not consider whether the payments could be credited under section 71A of the Act. Mr Reynolds promptly applied to the Tribunal for further review. I heard the matter on 23 May 2024. Mr Reynolds and Ms Mull gave sworn evidence via MS Teams.

7. I referred Ms Mull to Child Support’s file note dated 30 August 2022 and asked her whether she had agreed to the payments in question being credited as non-agency payments. She said she had not agreed. She said she had been unaware of the difference between a non-agency payment and a prescribed non-agency payment. She said it would be fair to credit half of each of the nine payments, but not the total of each of the nine payments.

8. Child Support’s file note on the issue is clear. I consider it to be the more reliable evidence of Ms Mull’s intention as at 30 August 2022 than her recollection of events almost two years later. I find that Ms Mull contacted Child Support on 30 August 2022 to have the nine payments in question (and other payments) credited as child support payments, and since the nine payments in question occurred after 29 July 2022 (which was when she had believed, at the time, that she had commenced 100% care of the children) and after 31 July 2022 (which was when Child Support subsequently decided that she commenced 100% care of the children), she intended “100% of [the] payments” to be credited. During the hearing Mr Reynolds stated, and I accept, that he had also held that intention. The requirements of section 71A of the Act were satisfied in respect of those nine payments.

9. Section 71A of the Act commences: “Subject to section 71D, …” Section 71D of the Act simply states: “The Registrar may refuse to credit an amount under section 71, 71A or 71C if satisfied that, in the circumstances of the particular case, the amount ought not to be credited.” Ms Mull noted that Mr Reynolds had been jointly liable for the rent and jointly liable for the car loan repayments. Those facts had led to the objections officer crediting half of the nine payments as prescribed non-agency payments pursuant to section 71C of the Act, and that decision could have been made regardless of whether Ms Mull had been agreeable to the payments, or a portion of the payments, being credited. However, Ms Mull was agreeable to the entirety of the nine payments being credited; she contacted Child Support and applied to have them credited. She subsequently changed her mind, but her initial contact reflected her assessment, at that time, that it would have been fair to credit the entirety of the nine payments. At that time, Ms Mull and the children were living in the House and Mr Reynolds was not living in the House. Ms Mull had exclusive use of the car for transporting herself and the children; Mr Reynolds did not use the car. Mr Reynolds made the payments in question but Ms Mull and the children received the benefits of those payments. Those circumstances make it appropriate to credit the entirety of the nine payments as non‑agency payments pursuant to section 71A of the Act.

DECISION

The decision under review is set aside and, in substitution, five payments of $195.39 on 2, 9, 16, 23 and 30 August 2022 and four payments of $475.00 on 3, 10, 17 and 24 August 2022 are credited as non-agency payments pursuant to section 71A of the Child Support (Registration and Collection) Act 1988.