Riley and Riley (Child support)

[2019] AATA 5099

Riley and Riley (Child support) [2019] AATA 5099 (22 August 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/HC016751

APPLICANT:  Mr Riley

OTHER PARTIES:  Child Support Registrar

Mrs Riley

TRIBUNAL:Member Y Webb

DECISION DATE:  22 August 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – non-agency payment - whether payments made for purchases should be credited – no mutual intention – condition for crediting as prescribed payment not satisfied – refusal to credit non-agency payments - decision under review affirmed

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. This review is about whether payments made for purchases by Mr Riley should be accepted and credited as non-agency payments (NAPs) against Mr Riley’s child support liability.

2. This review relates to the three children (the children) of Mr Riley and Mrs Riley.  The children are aged 17, 15 and 13 years old.

3. The child support case was registered on 11 November 2018 and has been collectable by the Department of Human Services (Child Support Agency) since that date.

4. On 15 March 2019 Mr Riley contacted the Child Support Agency to request that purchases which he funded (NAPs) for the children totalling $57.99 be credited against his child support liability.  The details of the requested NAPs were:

Description	Amount
Clothing (purchased on 10/3/2019)	$8.00
Sports bra (purchased on 9/3/2019)	$49.99

1. On 16 May 2019 Mrs Riley informed a Child Support Agency officer that she did not agree with these payments being counted as child support. 

2. On 17 May 2019 a delegate of the Registrar decided that the payments would be refused on the basis that there was no mutual intention that the payments would count towards child support.  In addition, the payments did not fall within the category of payments which did not require mutual consent.

3. On 24 May 2019 Mr Riley objected to that decision on the basis that he pays for items for the children in addition to paying child support.

4. On 6 June 2019 an objections officer of the Child Support Agency disallowed Mr Riley’s objection.

5. On 17 June 2019, Mr [Riley] requested a review by the Administrative Appeals Tribunal (the Tribunal).

6. Both parents attended the hearing on 22 August 2019 by way of a telephone conference and both gave sworn evidence.

7. The Tribunal received two bundles of relevant papers from the Child Support Agency and these were marked as Exhibits C1 and C2.

ISSUES

1. The issues for the Tribunal to determine are:

   (i)   whether Mr Riley purchased items for the children during an enforceable maintenance liability period and if so, the amount of those payments;

   (ii)     whether there was any agreement between Mr Riley and Mrs Riley that the payments were intended to be taken into account for child support purposes;

   (iii)    whether the payments were of a type specified in the Child Support (Registration and Collection) Regulations 2018 (the Regulations);

CONSIDERATION

1. The legislation relevant to this decision is contained in the Child Support (Registration and Collection) Act 1988 (the Act).

2. When the Child Support Agency registers a child support liability for collection, the amounts payable become a debt to the Commonwealth and are payable to the Child Support Registrar pursuant to section 30 of the Act.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 by the Child Support Agency if they were intended as child support.  The Child Support Agency may also credit the value of non-cash payments or the provision of services in the same way.  These credits are referred to as NAPs and the relevant provisions are found in sections 71, 71AA, 71A, 71B, 71C and 71D of the Act.

3. Of relevance in this review is section 71A of the Act.  It relevantly provides (in summary) that a NAP can be accepted in the following circumstances:

   ·       the amount has actually been paid or transferred; and

   ·       the payment was made after the Child Support Agency commenced collection of child support; and

   ·       it was mutually agreed by the parents that the payment was intended to count as child support.

4. Central to the crediting of payments under section 71A of the Act is that the payments were intended by both the payee (Mrs Riley) and the payer (Mr Riley) to be payments to be credited against Mr Riley’s child support liability.  If that common intention is present, 100% of the payments can be so credited. 

5. In this case the clear evidence of the parents was that there was no mutual intention that the payments were intended to be credited against Mr Riley’s child support liability.  This was clearly evident in the C1 papers and reiterated at the hearing.

6. As there was no common agreement about this between them, the payments cannot be counted as NAPs under section 71A of the Act and were correctly refused under this section.

7. The Tribunal then considered whether the payments could be considered to be what are known as prescribed non-agency payments (prescribed NAPs).  Under section 71C of the Act, payments made by a parent for purposes specified in the Regulations can be credited against the child support liability.  This can occur regardless of the consent of the other parent.  An amount of up to 30% of the total child support liability can be credited until the total amount to be credited has been exhausted. 

8. Subsection 71C(1) details the prerequisites for crediting this type of payment.  The prerequisites are summarised as follows:

   ·       There is an enforceable maintenance liability;

   ·       There has been a payment to the payee or another person;

   ·       The payment is a kind specified in the Regulations;

   ·       The payments have not previously been credited against the child support liability; and

   ·       The payer does not have at least regular care of any of the children to whom the relevant administrative assessment relates either at the time the payments were made or the time the Registrar applies this section.

9. One of the prerequisites specified in section 71C is that the payment must be of a kind specified in the Regulations.  Regulation 19 of the Regulations specifies the types of payments that can be credited under section 71C. They are:

   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 pre‑school for that child;

   (c)amounts payable for uniforms and books required by a school or pre‑school 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.

10. The Tribunal finds that neither the payment by Mr Riley for clothing nor the payment for the sports bra falls within the category of prescribed NAPs as specified above.

11. Hence the Tribunal concludes that the claim of $57.99 as a NAP was correctly refused by the Child Support Agency.

DECISION

The decision under review is affirmed.