Ritson and Kinchen (Child support)

[2021] AATA 1697

Ritson and Kinchen (Child support) [2021] AATA 1697 (16 March 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2020/BC020409, 2020/BC020434, 2020/BC020435, 2020/BC020436, 2020/BC020437, 2020/BC020438, 2020/BC020439

APPLICANT:  Ms Ritson

OTHER PARTIES:  Mr Kinchen

Child Support Registrar

TRIBUNAL:Member P Jensen

DATE OF DECISION:  16 March 2021

DECISIONS:

The decisions under review are affirmed.

CATCHWORDS

CHILD SUPPORT – non-agency payment – whether payment made for car loan in lieu of child support – intention of both parents – decisions 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 DECISIONS

1. Ms Ritson and Mr Kinchen are the parents of three children. According to Ms Ritson, the parents separated in June 2018. A child support case was registered from 9 July 2018 with what is commonly called the Child Support Agency or CSA. Mr Kinchen was required to pay child support. Ms Ritson elected to have the CSA collect the child support payable, and it was therefore a debt that Mr Kinchen owed to the CSA. Such debts are usually discharged via direct payments to the CSA, but the Child Support (Registration and Collection) Act 1988 (“the Act”) allows payments to third parties to be credited against the payer’s child support debt in certain circumstances. Such payments are commonly referred to as non-agency payments.

2. Mr Kinchen made weekly car loan repayments in respect of a car that was owned and used by Ms Ritson. Mr Kinchen was solely liable for the car loan repayments. On a number of occasions, Ms Ritson contacted the CSA, informed it of the total of a number of weekly car loan repayments that had been made, and applied to have that total credited as a non‑agency payment. On other occasions, Mr Kinchen did likewise. The CSA decided to credit the total payments accordingly. Ms Ritson belatedly objected to those decisions and lodged applications for extensions of time in which to object. The CSA granted those applications. Mr Kinchen provided evidence of his actual car loan repayments. The objections officer found against Ms Ritson on the main issue in dispute but noted some minor discrepancies between the payments that were reported and the payments that were actually made, and varied the decisions accordingly. A summary of those matters is annexed to these Reasons for Decisions.

3. Ms Ritson applied to the Tribunal for further review. I heard the matters on 16 March 2021. Ms Ritson and Mr Kinchen gave sworn evidence by conference phone.

4. Relevantly for present purposes, section 71A of the Act allows a payment to be credited, subject to section 71D of the Act, if “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 payable” to the CSA, and two other requirements are satisfied. There is no dispute that the other two requirements of section 71A were satisfied in respect of each of the car loan repayments in question. The issue is whether Ms Ritson intended the car loan repayments to be credited as non-agency payments.

5. On 2 September 2020, Ms Ritson summarised her reasons for disputing the CSA’s decisions. She stated that Mr Kinchen gave her the car in question in 2015 as a birthday present. She stated (with typographical errors in the original) that she had accepted the payments as non-agency payments:

   … because i was confused and had felt pressured by to agree to [Mr Kinchen’s] terms, even though it didnt feel right (to have a gift in 2015 then 3yrs later in 2018 when we separated - when i applied for child support is when the request for the non agency payments/third party to be subtracted?- pay back car payments of gift?? With money that was to raise the kids?)

   I was under high stress and abusive messages from [Mr Kinchen] since separating in june 2018 - to the point when in february/march 2019 that the 3 kids and i went into a domestic violence refuge for 3 months, life was challenging at the time.

   So when asked to pay these payments through my child support payments, not knowing what i was doing, i agreed As above, for those reasons i felt i had to.

6. At the hearing, Mr Kinchen said he had not given Ms Ritson the car as a birthday present. He said he bought the car for the family.

7. Ms Ritson provided a text message from Mr Kinchen to her dated 23 July 2018. It includes the following: “And Still Paying The car You Drive them [the children] Around In. Please don’t look for any reason about these payments, than The boys!” That evidence suggests that Mr Kinchen viewed the car loan repayments as payments for the benefit of the children. There was no suggestion that Ms Ritson received the car as a birthday present.

8. On 1 August 2018, Ms Ritson contacted the CSA and stated that she could not confirm that Mr Kinchen was making the car loan repayments. The CSA noted: “She will agree to these payments being credited if we have evidence that they have been paid.”

9. Ms Ritson provided text messages that were exchanged between herself and Mr Kinchen later that day. Ms Ritson wrote: “They will ring again I’d say for proof of the car repayments as I don’t have access.” Mr Kinchen then referred to the $111 per week that he was paying, and Ms Ritson wrote: “$111 a week to look after 3 kids Yep you got it tough”. That evidence suggests that Ms Ritson also viewed the car loan repayments as payments for the benefit of the children. Again, there was no suggestion that Ms Ritson received the car as a birthday present.

10. On 9 October 2018, Ms Ritson contacted the CSA again and asked for certain car loan repayments to be credited as non-agency payments. The CSA noted: “I explained that [Mr Kinchen] will not be required to be [pay?] a full months child support payment as we will be crediting the naps off the monthly payment.” The file note strongly suggests that Ms Ritson was taking active steps to have Mr Kinchen’s car loan repayments credited as non-agency payments in circumstances where she was aware that by doing so, she would receive less child support from the CSA. In other words, she knew what she was doing.

11. Ms Ritson continued to make applications to have Mr Kinchen’s car loan repayments credited as non-agency payments, and then later, Mr Kinchen started making the applications. On 25 May 2019 the CSA noted: “[Ms Ritson] has confirmed that the payment of $444 for the car loan made 30/4/19 was in lieu of CS.” On 16 July 2019 it noted: “[Ms Ritson] indicates she is happy to continue to accept the NAPs however needs to be certain that the amounts have been paid.”

12. At the hearing, Ms Ritson said there were other occasions when she told the CSA that she was not accepting payments as non-agency payments. That suggests that, contrary to her earlier evidence, her will had not been overborne by Mr Kinchen, and she was making decisions about which payments to have credited and which payments to not have credited. I asked Ms Ritson to take me to the relevant pages in the hearing papers. She said she had not read the hearing papers. She nevertheless suggested that enquiries should be made with the CSA as to whether there were any file notes of any such conversations that had not been included in the hearing papers. She also said that, in any event, the CSA had told her that it did not make file notes of all its conversations with parents.

13. The CSA prepared the hearing papers on the basis that it was required to provide all relevant documentation in its possession or under its control: section 37 of the Administrative Appeals Tribunal Act 1975. In the absence of a particularised submission by Ms Ritson that the CSA omitted to include particular documents, I am satisfied that the CSA has complied with its legal obligation.

14. I consider the CSA’s contemporary file notes to be the best evidence of Ms Ritson’s intentions when the applications to have the car loan repayments credited as non-agency payments were lodged. I find that Ms Ritson intended the payments to be credited as non-agency payments. Pursuant to section 71A of the Act, the payment must be credited, subject to section 71D of the Act which 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.

15. The file notes indicate that when Ms Ritson applied or agreed to have payments credited as non-agency payments on a number of occasions during the period from August 2018 to July 2019, she was aware of the practical consequences of what she was doing. The parents had reached an agreement whereby Mr Kinchen’s loan repayments in respect of the car that Ms Ritson was using would be credited as non-agency payments, and they were credited, and they ought to remain credited.

16. After the hearing, Ms Ritson sent an email to the Tribunal Registry. She reiterated some matters that were raised during the hearing. She raised other matters that could have been raised during the hearing. After having regard to section 30 of the Child Support Review Directions, I decided to not accept the email into evidence.

DECISIONS

The decisions under review are affirmed.

Annexure

Date of payment                  Amount reported                   Amount paid             AAT reference
  and credited by CSA              and credited by

objections officer

31/08/18  $111.13           2020/BC020409
07/09/18  $111.13           2020/BC020409
14/09/18  $111.13           2020/BC020409
21/09/18  $117.13           2020/BC020409
28/09/18  $111.13           2020/BC020409
05/10/18  $111.13           2020/BC020409

$777.91

19/10/18  $117.13           2020/BC020439
26/10/18  $111.13           2020/BC020439
02/11/18  $111.13           2020/BC020439
09/11/18  $111.13           2020/BC020439
16/11/18  $111.13           2020/BC020439

$555.65

23/11/18  $117.13           2020/BC020437
30/11/18  $111.13           2020/BC020437
07/12/18  $111.13           2020/BC020437
14/12/18  $111.13           2020/BC020437

$444.52

04/01/19  $111.13           2020/BC020436
11/01/19  $111.13           2020/BC020436
18/01/19  $111.13           2020/BC020436
25/01/19  $117.13           2020/BC020436

$444.52

01/02/19  $111.13           2020/BC020435
08/02/19  $111.13           2020/BC020435
15/02/19  $111.13           2020/BC020435
22/02/19  $117.13           2020/BC020435
01/03/19  $111.13           2020/BC020435
08/03/19  $111.13           2020/BC020435
15/03/19  $111.13           2020/BC020435
22/03/19  $111.13           2020/BC020435

$888.00

Date of payment                  Amount reported                   Amount paid             AAT reference
  and credited by CSA              and credited by

objections officer

05/04/19  $111.13           2020/BC020434
12/04/19  $111.13           2020/BC020434
18/04/19  $117.13           2020/BC020434
26/04/19  $111.13           2020/BC020434

$444.00

07/06/19  $111.13           2020/BC020438
14/06/19  $111.13           2020/BC020438
21/06/19  $117.13           2020/BC020438
28/06/19  $111.13           2020/BC020438

$444.00