Rice and Morgan (Child support)

[2021] AATA 251

Rice and Morgan (Child support) [2021] AATA 251 (4 January 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/AC020114

APPLICANT:  Ms Rice

OTHER PARTIES:  Child Support Registrar

Mr Morgan

TRIBUNAL:Member W Budiselik

DECISION DATE:  04 January 2021

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that the father’s out of pocket expense of $21.25 incurred on 6 July 2020 as payment to [Medical services provider], [Town], for services provided to his daughter is to be credited against his child support liability as a prescribed non-agency payment.

CATCHWORDS

CHILD SUPPORT – non-agency payment – whether out of pocket medical expense should be credited as prescribed payment – all conditions to credit are satisfied – prescribed payment credited – 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

BACKGROUND

1. Ms Rice (the mother) and Mr Morgan (the father) are the parents of a female child (born 2019). A child support case was registered with Services Australia (the agency) on 12 April 2020. The father pays the mother child support. At 12 April 2020, the father is recorded by the agency as having less than regular care of the child. From 11 August 2020, the father is recorded by the agency as having regular care of the child.  

2. On 26 October 2020, an objections officer from the agency allowed an objection by the father to a decision made by an officer of the agency on 10 July 2020, to refuse to credit a prescribed non-agency payment of $60.00 paid by the father on 6 July 2020 in respect of the child’s medical account.

3. On 27 October 2020, the mother lodged an application for review of the agency’s decision with the Administrative Appeals Tribunal (the tribunal). On 4 January 2021, the tribunal conducted a hearing into the application. The parents participated in the hearing via conference telephone. Prior to the hearing the agency provided the tribunal and the parents with a bundle of documents taken from its file (folios 1–59). The mother provided the tribunal with a copy of a court order dated 11 August 2020 (folios A1–A8), which set out the parents’ pattern of agreed care for the child. This document has been provided to the father and to the agency.

ISSUES

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

2. The tribunal also had regard to the Child Support Guide (the Guide), the agency’s online technical and policy guide to the administration of the child support scheme.

3. The issue which arises in this case is whether or not the payment made by the father should be credited against his child support liability as a prescribed non-agency payment.

CONSIDERATION

Issue: Should the payment made by the father be credited against his child support liability as a prescribed non-agency payment?

1. Section 71C of the Act provides for payments of the kind prescribed by regulation to be credited against the amount payable under the enforceable liability for a payment period, up to a maximum of 30% of the amount payable. Such payments are termed prescribed non-agency payments. The payment must be a payment of the kind specified in regulation 19 of the Child Support (Registration and Collection) Regulations 2018 (the Regulations). Regulation 19(d) of the Regulations specifies one kind of payment as ‘fees for essential medical or dental services for that child’.

2. Paragraph 71C(1)(ba) of the Act provides that the payment will not be credited as a prescribed non-agency payment if the liable parent has at least regular care of the child or children to whom the child support assessment relates.  Subsection 4(1) of the Act defines regular care to have the meaning given by subsection 5(2) of the Child Support (Assessment) Act 1989, which defines it to mean the carer has at least 14% but less than 35% care of a child.

3. Section 71D of the Act provides that the Registrar (and the tribunal in the Registrar’s place) may refuse to credit an amount under section 71C if satisfied that in the circumstances of the case the amount should not be credited.

4. Based on the evidence provided by the parents the tribunal decided each had developed misunderstandings about prescribed non-agency payments.

5. The mother said she had decided to ask the tribunal to review the decision because even though the amount of money the father claimed was small she feared he would follow up this claim with other claims and that, for example, she might find her child support payment reduced because he had taken the child to a restaurant.

6. The tribunal pointed out to the mother that the Regulations specified the sort of payments that would reduce the father’s child support liability. The kind of expenditure did not include a visit to a restaurant. Specifically, Regulation 19 sets out:

   19 Specified payments

   For the purposes of paragraph 71C(1)(b) of the Act, payments of the following kinds in relation to an enforceable maintenance liability are specified:

   (a) child care costs for the child who is the subject of the enforceable maintenance liability;

   (b) fees charged by a school or preschool for that child;

   (c) amounts payable for uniforms and books required by a school or preschool for that child;

   (d) fees for essential medical and dental services for that child;

   (e) the payee’s share of amounts payable for rent or a security bond for the payee’s home;

   (f) the payee’s share of amounts payable for utilities, rates or body corporate charges for the payee’s home;

   (g) the payee’s share of repayments on a loan that financed the payee’s home;

   (h) costs to the payee of obtaining and running a motor vehicle, including repairs and standing costs.

7. In addition, if the father provides at least regular care to the child he is unable to be credited for prescribed non-agency payments (see paragraph 71C(1)(ba) of the Act).

8. The mother said she was reassured by the information provided by the tribunal and consequently she was less concerned about the payment under review.

9. The father said he understood that he would be credited with $18 of the payment because the agency’s policy was to credit only 30% of the amount paid.

10. The father is mistaken in his understanding on this point. The Guide at 5.3.1 explains the way the provision is applied:

    If the payer satisfies the conditions and the prescribed non-agency payment is accepted, the Registrar can credit up to 30% of the current liability from the date of notification of the payment. If the amount of the payment is more than 30% of the enforceable maintenance liability in a given month, the excess amount will be retained as an 'uncredited' amount. This uncredited amount can be applied against the payer's enforceable maintenance liability in a later month provided the conditions for payment are again met, and can be carried over to a different child support enforcement period as long as it relates to the same liability.

11. In addition, the father understood the agency accepted the gross amount of the fee for a medical service as the prescribed non-agency payment, without any reduction for Medicare or other rebates. The Guide at 5.3.1 explains:

    A payer can claim only their actual costs. The Registrar will credit only the net amount after any rebate the person can claim from Medicare or a health insurance fund.

18.The father said he had received a Medicare rebate of about $35. The tribunal checked the Medicare Benefits Schedule ( and satisfied itself the scheduled rebate is $38.75. The tribunal found the out of pocket expense incurred by the father in respect of the consultation for the child is $21.25.

19.The tribunal considers essential medical services are not limited to emergency services. The tribunal appreciated contact between the parents was difficult and that the father acted in the child’s best interests by taking her to the doctor, and that this decision was supported by the mother.

1. The mother said if she had the child in her care, she would have taken her for a medical consultation.

2. The tribunal was satisfied the cost incurred was of a kind that could be considered a prescribed non-agency payment.

3. The tribunal did not identify a circumstance why the out of pocket component of the payment should not be credited as a prescribed non-agency payment.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that the father’s out of pocket expense of $21.25 incurred on 6 July 2020 as payment to [Medical services provider], [Town], for services provided to his daughter is to be credited against his child support liability as a prescribed non-agency payment.