Rowatt and Guthrie (Child support)

[2018] AATA 1724

Rowatt and Guthrie (Child support) [2018] AATA 1724 (4 April 2018)

DIVISION:  Social Services & Child Support Division

REVIEW NUMBER:  2018/MC013333

APPLICANT:  Mr Rowatt

Ms Guthrie

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:  Ms Hamilton-Noy, Member

DECISION DATE:  4 April 2018

DECISION:

The tribunal affirms the decision under review.

CATCHWORDS

Child Support – Prescribed non-agency payments – The payments were for essential medical services – Payments should be credited - 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. This application relates to a decision by the Department of Human Services – Child Support (the Department) to credit payments made by Ms Guthrie as non-agency payments towards her child support liability.

2. Mr Rowatt and Ms Guthrie are the separated parents of [Child 1].

3. On 9 August 2017, 22 August 2017, 5 September 2017 and 27 September 2017 Ms Guthrie reported to the Department that she had made seven payments for psychologist fees for [Child 1] in the period between 4 July 2017 and 26 September 2017.

4. On 29 September 2017 an employee of the Department made a decision to accept the seven payments as prescribed non-agency payments.

5. On 10 October 2017 Mr Rowatt lodged an objection to this decision and on 29 November 2017 an objections officer of the Department disallowed the objection.

6. On 22 January 2018 Mr Rowatt made application to the Administrative Appeals Tribunal for an independent review of the Department’s decision. 

7. The hearing was held on 4 April 2018, on which date Mr Rowatt attended the hearing to speak to the tribunal in person.  Ms Guthrie did not participate in the hearing.  The tribunal was assisted in this matter by documents provided by the Department (1 to 132).  A copy of the documents was provided to the parties prior to the hearing and Mr Rowatt confirmed receipt of the documents with the tribunal. 

CONSIDERATION

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act). The legal issue for the tribunal in this case is whether the payments made by Ms Guthrie are able to be credited as non-agency payments.

2. Part 5 of the Registration and Collection Act deals with the payment and recovery of child support debts. The Department has credited the payments in question as prescribed non-agency payments under section 71C of the Registration and Collection Act. This section allows payments of a kind specified in the Regulations to be credited as non-agency payments in specified circumstances. In particular, subsection 71C(1) of the Registration and Collection Act provides as follows:

   (1)  If:

   (a)  the payer of an enforceable maintenance liability in relation to a payment period or initial period has made one or more payments to the payee of the liability, or to another person; and

   (b)  the payment is a payment of the kind specified in the regulations; and

   (ba)  at the time the payment is made, the payer does not have at least regular care of any of the children to whom the relevant administrative assessment relates; and

   (c)  the sum of those payments exceeds the sum of all such payments previously credited under this section against the amount payable under the liability for all past periods; and

(d)  the payer does not, at the time at which the Registrar applies this section, have at least regular care of any of the children to whom the relevant administrative assessment relates;

then the Registrar must, despite section 30, credit the excess amount mentioned in paragraph (c) against the amount payable under the payer's liability for the period, up to a maximum of 30% of the amount payable.

1. The Note to this subsection states that subsection 71C(1) is subject to section 71D of the Registration and Collection Act.

2. It was not disputed, and the tribunal accepted, that at the time of the payments Ms Guthrie had less than regular care of [Child 1].  The Child Support (Registration and Collection) Regulations 1988 provide, at regulation 5D, that the following types of payments are specified payments for the purpose of paragraph 71C(1)(b) of the Registration and Collection Act:

   ·       Child care costs for the child who is the subject of the enforceable maintenance liability;

   ·       Fees charged by a school or pre-school for that child;

   ·       Amounts payable for uniforms and books prescribed by a school or pre-school for that child;

   ·       Fees for essential medical and dental services for that child;

   ·       The payee's share of amounts payable for rent or a security bond for the payee's home;

   ·       The payee's share of amounts payable for utilities, rates or body corporate charges for the payee's home;

   ·       The payee's share of repayments on a loan that financed the payee's home;

   ·       Costs to the payee of obtaining and running a motor vehicle, including repairs and standing costs.

3. The issue for the tribunal in this case is whether attendance at a psychologist under a Mental Health Care Plan is an “essential medical service” within the meaning of section 71C of the Registration and Collection Act. Mr Rowatt did not dispute that attendance at a psychologist fell within this definition. The tribunal had regard to a letter prepared by [Dr A] of [Medical Practice 1] dated 16 May 2017, to [Medical Practice 2], stating the following:

   Re: [Child 1]

   Regarding: generalised anxiety disorder

   Will come with MHCP

   Thank you for seeing [Child 1] for assessment and opinion. I am meeting [Child 1] for the first time.  She describes generalised and social anxiety since she has been about 12-13y old.  She would be grateful for your further assessment and management and for your help with strategies to deal with this.  Please see progress notes below for more details.

   Progress Notes

   Tuesday May 16 2017   16:19:47

   [Dr A]

   New patient:

   Has come for a MHCP 2701

   Some issues with anxiety

   Has been recommended to [Medical Practice 2] in [Suburb 1] (lives in [Suburb 2] with dad)

   Goes to school in [Suburb 3] and with mum Tues afternoons

   Prone to anxiety if any thing happens that changes her known schedule eg casual clothes day, day off, calling people she doesn’t know.  Social anxiety. Does not go to parties or go to groupd [sic].  Has been for many years.  Became worse about 12-3y.

   Has a good group of friends.

   Parents split up when she was 12-3y.

   She chose to stay with dad and sees mum Fridays and sleeps over Tuesday evenings.

   Has 2 older sisters, 1 adult, 1 with dad, they get on well

   Dad lives alone.

   In year 11, hard worker and motivated to do well, might want to be a teacher.  Prone to exam anxiety.  Social drinker with rare binge, no drugs, no self harm, no suicide attempt, not depressed. 

   Has not tackled anxiety in the past.

   Mostly sleeps well.

4. The tribunal also had regard to a letter prepared by clinical psychologist [Ms B] of [Medical Practice 3] dated 14 November 2017 (folio 81) which stated as follows:

   [Dr A] of [Medical Practice 1] referred [Child 1] to [Medical Practice 3] for assistance with generalised and social anxiety.  [Child 1] was referred with a mental health care plan (MHCP) dated 25/05/17 recommending an initial six psychology sessions under Medicare’s Better Access Program.  [Child 1]’s MHCP was subsequently reviewed by [Dr C] at [Medical Practice 3] on 18/09/17 and she endorsed a further four psychology sessions.  Medicare’s Better Access Program cover the bulk billing cost of ten psychology sessions per calendar year.

   [Child 1] was allocated to me as her practitioner and has attended eight psychology sessions to date.  [Child 1] presented with heightened levels of anxiety and avoidant behaviours.  She has been engaged in psychoeducation about anxiety and instructed in anxiety management strategies.  A significant part of this work has been supporting [Child 1] to confront situations she finds anxiety provoking rather than continuing to avoid these situations.

   This is a gradual process and [Child 1] is making good progress.  At her most recent session, [Child 1] reported that our sessions are helpful, but she continues to engage in some avoidance.  It is my opinion that [Child 1] would benefit from continued psychological intervention and support.

5. The tribunal found from the above evidence that [Child 1] had been experiencing symptoms of anxiety and had been referred, as a result, by her GP to a psychologist under a Mental Health Care Plan. The tribunal was satisfied from the medical evidence that [Child 1] required intervention by a psychologist and that this was an essential medical service within the meaning of the Regulations.

6. As to the costs being claimed by Ms Guthrie, the tribunal had before it a series of seven invoices that form the basis of this decision (20 June 2017, 4 July 2017, 18 July 2017, 8 August 2017, 22 August 2017, 5 September 2017 and 26 September 2017)[1], each citing total costs of $160 with a benefit available for each session of $124.50. The tribunal accepted that out of pocket costs for Ms Guthrie for each appointment was $35.50. The tribunal found on the evidence before it that each of the seven payments was a non-agency payment within the meaning of subsection 71C(1) of the Registration and Collection Act.

   [1] The Subsection 38AA documents refer to other non agency payments claimed by Ms Guthrie and Mr Rowatt referred to these in his evidence at the tribunal hearing.  While original decisions had been made in relation to these, as no objections officer decision had reviewed the original decisions, the tribunal did not include these additional non agency payment claims as part of its review.

7. The tribunal noted that section 71D of the Registration and Collection Act allows the tribunal to refuse to credit an amount under section 71C of the Registration and Collection Act if satisfied that, in the circumstances of the particular case, the amount ought not be credited.

8. Mr Rowatt stated to the tribunal that a bulk-billing psychologist could have been chosen and, in the absence of her choosing to do so, she should incur the additional costs. Mr Rowatt stated he had had no input into [Child 1] attending counselling or the choice of counsellor she attended.  Mr Rowatt further submitted that Ms Guthrie is currently in receipt of an income of $90,000 and is about to become controller of a family trust; while he is living off $30,000 from his superannuation account plus age pension.

9. The tribunal carefully considered the circumstances raised by the applicant, however, did not consider that the tribunal should, in the circumstances of this case, refuse to credit the amounts claimed under section 71C of the Act. The tribunal found that the Department’s decision is legally correct and this decision is therefore affirmed.

DECISION

The tribunal affirms the decision under review.