Rothell and Porter (Child support)

[2020] AATA 1390

Rothell and Porter (Child support) [2020] AATA 1390 (5 March 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC017929

APPLICANT:  Miss Rothell

OTHER PARTIES:  Child Support Registrar

Mr Porter

TRIBUNAL:Member J Thomson

DECISION DATE:  05 March 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – registration of child support liability – opt-in arrears –  whether application to register assessment for collection should have been accepted – whetehr there were unpaid amounts –  application for collection of unpaid amounts should be accepted – decision 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 DECISION

BACKGROUND

1. Miss Rothell and Mr Porter are the parents of [Child 1], born 2009, and [Child 2], born 2014. The care percentages being assessed by the Department of Human Services – Child Support (the Department) are 24% to Miss Rothell and 76% to Mr Porter.

2. Miss Rothell seeks review of an objection decision made by the Department on 14 November 2019. This decision disallowed her objection to a Department decision dated 9 October 2019 accepting Mr Porter’s application for collection of Miss Rothell’s child support liability by the Department from 5 February 2018, and arrears of child support from 5 November 2017 to 4 February 2018.

3. The Tribunal heard the matter on 5 March 2020. Miss Rothell attended the hearing via conference telephone and gave affirmed evidence. Mr Porter also attended the hearing via conference telephone, but prior to a short adjournment because of conference telephone difficulties and his expressing reservations as to his need to participate in the hearing; he did not make himself available via conference telephone to participate further in the hearing process and did not provide any sworn or documentary evidence.

4. The Tribunal had before it documents provided by the Department. Miss Rothell had copies of these papers with her at the hearing, and the Department’s documents were admitted into evidence and marked Exhibit 1.

CONSIDERATION

1. In reaching its decision, the Tribunal has considered the affirmed evidence given by Miss Rothell at the hearing and the documents contained in Exhibit 1.

2. The legislation relevant to applications for the collection of child support by the Department is contained in the Child Support (Registration and Collection) Act 1988 (the Registration Act). Subparagraph 17(1)(a)(i) of the Registration Act defines a registrable maintenance liability as a liability of a parent of a child to pay a periodic amount to a parent of the child for the maintenance of the child.

3. Subsection 24A(2) of the Registration Act provides that the payee of a registrable maintenance liability may elect in the relevant application for assessment of child support or the relevant application for acceptance of a child support agreement, as the case requires, not to have the registrable maintenance liability enforced under this Act, where the parents have reached a private agreement as to the manner in which the maintenance liability for the child or children is to be collected.

4. Subsection 25(1) of the Registration Act permits a payee of a registrable maintenance liability to apply to the Registrar, in the manner specified by the Registrar, for the registration of the liability under this Act. Paragraph 28(1)(c) provides that a registered maintenance liability first becomes enforceable, if the liability is registered under subsection 25(2) on such day as is determined, in writing, by the Registrar (being a day not later than 60 days after the day on which the Registrar receives, under subsection 25(1), the relevant completed form from the payee of the liability.

5. Subsection 28A(3) of the Registration Act provides for the payee of a registrable maintenance liability to apply to the Registrar, in the manner specified by the Registrar, for any unpaid amounts payable under the liability in relation to a specified period to be treated as arrears amounts for the purposes of this section. Subsection 28A(4) provides that the Registrar must grant the payee’s application if the specified period does not exceed three months and the Registrar registers the liability under subsection 25(2) of the Registration Act.

6. The Department’s file, contained in Exhibit 1, records a child support assessment was registered on 20 December 2014 and Mr Porter made an application to the Registrar on 5 February 2018 for collection of the child support liability payable by Miss Rothell by the Department, together with arrears from 5 November 2017 to 4 February 2018.

7. It was not disputed at the hearing that prior to Mr Porter’s application on 5 February 2018, the parents had reached a private agreement regarding the collection of Miss Rothell’s child support liability.

8. The Department file note dated 16 February 2018 records a telephone conversation between an officer of the Department and Miss Rothell in which the Department officer made reference to the payment of arrears of child support and the need for Miss Rothell to make payment arrangements for those arrears. Miss Rothell’s income and financial situation were also discussed, and the file note suggests there may have been some reference to Mr Porter’ application for collection of Miss Rothell’s child support liability by the Department.

9. On 1 March 2018, a Department file note records Miss Rothell telephoning the Department to discuss a letter she received from a private collection agency advising her that ‘she owes c.s. and to contact CS’, in response to which a Department officer informed her, relevantly, that the Department records indicated she had ‘no debt on acc in her role as PAYER’. A further Department file note of 5 July 2018 records a telephone conversation with Miss Rothell on that date in which the Department informed Miss Rothell that although her 2016/17 income had been backdated for child support purposes to 1 October 2017, no debt had been raised as the Department’s records reflected the collection of child support as being subject to a private collection arrangement between the parents.

10. A Department file note of 6 August 2018 records Miss Rothell telephoning the Department to notify them of a change in her financial circumstances due to a work related injury, and her providing an estimate of her income. The Department confirmed her rate of child support and the currency of the private collection arrangement between Miss Rothell and Mr Porter, although, curiously, there is a record of the Department officer making reference to Mr Porter’s option to apply to have Miss Rothell’s child support liability collected by the Department. Miss Rothell’s response that she is putting aside funds to cover her liability because she does not have Mr Porter’s current bank account details, due to a breakdown in the parents’ communication, is also recorded (see page 29 of Exhibit 1).

11. It is not until 26 September 2018, when Mr Porter contacts the Department to enquire as to why he has not received any child support payments pursuant to his application for collection of Miss Rothell’s child support liability by the Department, that the Department appears to realise it has failed to complete the processing of his application of 5 February 2018. The Department then proceeds to contact Miss Rothell to inform her of its error in failing to notify her of Mr Porter’s application of 5 February 2018, and its effect with respect to her payment of child support and arrears (see Department file note and letter to Miss Rothell of 27 September 2018 at pages 34 and 35 of Exhibit 1).

12. On 9 October 2018 the Department made a decision to accept Mr Porter’s application for collection of Miss Rothell’s child support liability from 5 February 2018 and arrears from 5 November 2017 to 4 February 2018 (see pages 36 and 37 of Exhibit 1), and formally notified Miss Rothell of its decision by letter sent to her dated 9 October 2018 (see page 40 of Exhibit 1).

13. Miss Rothell’s case at the hearing of her application was that she was not notified of Mr Porter’s application for collection by the Department of her child support liability by either Mr Porter or the Department until she received the Department’s letter of 9 October 2018, during which time arrears of child support in the amount of approximately $3,069.38 had accrued, including $644.90 arrears from 5 November 2017 to 4 February 2018, she had suffered a diminution in her income, due to a work related injury, and her options to raise funds to satisfy those arrears were severely compromised.

14. The outcome she sought was some financial adjustment to the accumulated arrears of child support resulting from the Department’s failure to afford her the opportunity to make adequate provision for payment of her child support arrears of approximately $2,500 accrued between 5 February 2018, and when she became aware of the Department’s decision of 9 October 2018 to accept Mr Porter’s application of 5 February 2018 for collection of her child support liability by the Department together with arrears from 5 November 2017, which she said she could have arranged to be deducted by her employer from her income on a regular periodic basis, had she been given notice by the Department of Mr Porter’s application in February 2018 and afforded the opportunity of making those arrangements.

15. Miss Rothell gave evidence that she did not receive the Department’s letter of 9 October 2018, notifying her of its decision to accept Mr Porter’s application for collection of her child support liability and arrears until 7 November 2018. She was admitted to hospital for surgical treatment of [an] injury on 15 November 2018, as a consequence of which she has since been made redundant. However, she gave evidence that she has received a redundancy payment as well as compensation from her income protection insurer.

16. Miss Rothell also gave evidence that she has since made arrangements with the Department to pay off the accumulated arrears of child support and that debt has been reduced to a balance of approximately $1,200 to $1,500. She also acknowledged in evidence that she does not dispute the Department’s calculation of the total amount of the arrears of child support she has been assessed to pay.

17. The relevant legislation set out above does not require the Department to notify a paying parent of the Department’s receipt of an application by a receiving parent to have the paying parent’s child support liability collected by the Department on the date the application is made to the Department. The legislation permits a parent to make such an application at any time, and provided the application is the first application for collection by the Department of a child support liability, and no previous application of that nature has been made, the Registrar is obliged to accept the application for collection of child support from the paying parent, together with any arrears for a period of three months prior to the date of the application.

18. Accordingly, the Department was obliged, in response to Mr Porter’s application of 5 February 2018, to collect child support from Miss Rothell, together with the arrears of $644.90 from 5 November 2017, regardless of when it ultimately (and belatedly) decided to accept Mr Porter’s application on 9 October 2018, and notified Miss Rothell of its decision by letter of that date. In any event, regardless of the decision the Department made on 9 October 2018, Miss Rothell was obliged to pay child support to Mr Porter in accordance with the assessment made at the time the case was registered with the Department on 20 December 2014, pursuant to the private collection arrangement she and Mr Porter had agreed upon, up until she became aware of the Department’s decision of 9 October 2018 to accept Mr Porter’s application for collection of her child support payments and arrears by the Department on 5 February 2018.

19. Miss Rothell did not dispute the Department’s decision to accept Mr Porter’s application for collection of her child support liability from 5 February 2018 together with arrears of $644.90 from 5 November 2017. Her issue at hearing related to the Department’s delay in reaching its decision of 9 October 2018 to accept Mr Porter’s collection application of 5 February 2018, and the inconvenience she suffered in having to reach a repayment arrangement with the Department.

20. The Tribunal finds that the Department was entitled to accept Mr Porter’s application of 5 February 2018 on 9 October 2018, and collect child support from Miss Rothell from 5 February 2018 together with arrears amounting to $644.90 from 5 November 2017.

21. As the Tribunal has reached the same conclusion as the objections officer in the decision under review, the Tribunal affirms that decision.

DECISION

The decision under review is affirmed.