Rooney and Jemison (Child support)

[2023] AATA 3401

Rooney and Jemison (Child support) [2023] AATA 3401 (23 August 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/PC025893

APPLICANT:  Mr  Rooney

OTHER PARTIES:  Child Support Registrar

Miss Jemison

TRIBUNAL:Member P Jensen

DECISION DATE:  23 August 2023

DECISION:

The decision under review is set aside and the matter is remitted to the Child Support Registrar for reconsideration in accordance with a direction that Mr Rooney paid $555.00 in child support in respect of the period from 30 August 2022 to 29 November 2022.

CATCHWORDS

CHILD SUPPORT - opt-in arrears - whether there were unpaid amounts - decision under review set aside and matter remitted with directions

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

1. Mr Rooney and Miss Jemison are the parents of [Child 1] who was born in 2012. A child support case was registered with Services Australia – Child Support (Child Support) in 2013. Child Support assessed the rate of child support payable. Miss Jemison elected to attend to the collection of child support privately.

2. Although it is not apparent from the hearing papers, Mr Rooney and Miss Jemison subsequently reconciled. They separated again in mid-2022.

3. On 30 November 2022, Miss Jemison applied to have Child Support collect the ongoing child support payable. Child Support decided to grant that application. Neither parent objected to that decision.

4. Miss Jemison also applied to have Child Support collect the child support arrears in respect of the period from 30 August 2022 to 29 November 2022 (the Application Period). Child Support concluded that Mr Rooney had not paid any child support in respect of that period. At the time, Mr Rooney had been assessed to pay $2,097.17 in respect of that period. Child Support decided to collect $2,097.17 in respect of the Application Period.

5. Mr Rooney objected to that decision. Miss Jemison agreed to $550.00 being credited as child support paid during the Application Period. She said Mr Rooney paid $500.00 in school fees and she withdrew $50.00 from a joint account during that period. An objections officer decided to collect $2,097.17 - $550.00 = $1,547.17 in respect of the Application Period.

6. Mr Rooney applied to the Tribunal for further review. I heard the matter on 23 August 2023. Mr Rooney and Miss Jemison gave sworn evidence via MS Teams.

7. Mr Rooney said the parents reached an agreement in approximately July or August 2022 whereby he would pay [Child 1]’s private school fees, tuition fees and private health insurance and he would not be required to pay child support. Miss Jemison confirmed that they had reached that agreement, adding that Mr Rooney had not paid the school fees, hence her decision to have Child Support collect the child support payable. I asked Miss Jemison whether there had been an agreement to credit school fees, tuition fees, etc towards Mr Rooney’s child support payable. She said the parents had not reached such an agreement: either Mr Rooney paid “everything” or there was no agreement.

8. Mr Rooney said he had paid “everything” when Miss Jemison applied to have Child Support collect the child support payable. Miss Jemison said he had not paid the school fees. Mr Rooney referred to his payments of $500.00 on 17 November 2022 and $116.00 on 15 December 2022. He confirmed that the payment of $116.00 brought the school fees up-to-date, and that until 15 December 2022, the school fees were in arrears. I noted that Miss Jemison lodged her application with Child Support on 30 November 2022, when the school fees were in arrears. Later in the hearing, Mr Rooney changed his evidence and said the payment of $116.00 did not bring the school fees up-to-date; they had been up-to-date prior to 15 December 2022. I consider his earlier acknowledgement to the contrary to be the more reliable evidence.

9. Mr Rooney provided text messages in support of his general account of events. Unfortunately, he did not include the dates of the text messages. He said Miss Jemison did not require him to pay the school fees in one payment. He referred to the following text messages (on pages 50 and 51 of the hearing papers, with typographical errors in the original):

   Miss Jemison:              How’s it waiting on me u call the school and change over details

   Then when that’s done I’ll call child support

   Mr Rooney:You haven’t cancelled it yet or put anything in writing

   Cause at the moment there still wanting money

   Miss Jemison:              Cuz u haven’t paid the school fees Mr Rooney and it’s been the weekend dude

   […]

   Miss Jemison:              [Invoice from school showing $2,132 owing]

   One hit or pay off up to u

   Mr Rooney:                 Did you end up sorting out child support

   Miss Jemison:              Right Mr Rooney, i told u I won’t cancel until I see Proof u paid her fees. And I no u won’t pay until I cancel the child support. So I’m gonna say this, “which one of us is more trustworthy to keep their word”?

   Mr Rooney:                 Me

   Miss Jemison:              How?

   Agree to disagree

10. Mr Rooney placed particular emphasis on the statement: “One hit or pay off up to u”. In response to further questions, Mr Rooney ascertained that the text messages were exchanged on 15 August 2022. As at 30 November 2022, the school fees remained outstanding. Miss Jemison said she had grown tired of asking Mr Rooney to comply with their agreement, hence her application to have Child Support attend to the collection of child support. In my opinion, Miss Jemison gave Mr Rooney ample opportunity to pay the school fees and bring the account up-to-date. As at 30 November 2022, he had not done so. It is worth noting that Mr Rooney’s 2022–23 adjusted taxable income was $209,648.00. Miss Jemison drew the reasonable conclusion that Mr Rooney had not complied with their agreement. The parents’ agreement had been that Mr Rooney would pay “everything” or he would be required to pay his administratively assessed rate of child support payable; there was no middle ground. Nevertheless, after Child Support decided to collect the arrears owing in respect of the Application Period, Miss Jemison agreed to Mr Rooney’s payment of $500.00 on 17 November 2022 being credited as child support in respect of the Application Period. She also said she withdrew $50.00 from a joint account and she was agreeable to that amount being credited as child support in respect of the Application Period. During the hearing, Miss Jemison confirmed that she had actually withdrawn $55.00 and she agreed to that payment being credited. She did not agree to any other payments made during the Application Period being credited. In the absence of such an intention by Miss Jemison, the other payments cannot be credited: sections 28A and 71A of the Child Support (Registration and Collection) Act 1988.

11. As an aside, Mr Rooney said the payment of $116.00 on 15 December 2022 should also be credited. I noted that the payment was not made during the Application Period. I explained that Mr Rooney could lodge a separate application with Child Support to have the payment credited as a non-agency payment. Miss Jemison said she was agreeable to the payment being credited. Both parents were agreeable to me noting their statements in these written reasons. In noting these matters, I am not expressing a view on whether such an application should be granted.

12. Mr Rooney sought to have child care payments and private health insurance payments credited against his child support payable in respect of the Application Period. There was no agreement that those payments would be credited and Miss Jemison did not subsequently agree to them being credited. After the objections officer decided to collect $1,547.17 in respect of the Application Period, Mr Rooney’s rate of child support in respect of that period increased. The matter will be remitted to Child Support to recalculate the arrears owing on the basis that Mr Rooney paid $500.00 + $55.00 = $555.00 in child support in respect of the Application Period.

DECISION

The decision under review is set aside and the matter is remitted to the Child Support Registrar for reconsideration in accordance with a direction that Mr Rooney paid $555.00 in child support in respect of the period from 30 August 2022 to 29 November 2022.