Saal and O’Bar (Child support)

[2020] AATA 5113

Saal and O’Bar (Child support) [2020] AATA 5113 (15 October 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/CC019651

APPLICANT:  Mr Saal

OTHER PARTIES:  Child Support Registrar

Ms O'Bar

TRIBUNAL:Member J Leonard

DECISION DATE:  15 October 2020

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that there is unpaid child support of $2,742.57 for the period 19 August 2019 to 18 November 2019 which is enforceable by the Child Support Registrar.

CATCHWORDS

CHILD SUPPORT – registration details – application for collection of unpaid amounts – whether the application should be accepted – there were unpaid amounts – decision under review set aside and substituted

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. Mr Saal and Ms O’Bar are the parents of [Child 1] (born 2004). There has been a child support assessment in place made by Services Australia (Child Support) since 2005. Mr Saal is the liable parent under the assessment. The liability had been registered for collection by the Child Support Registrar from 2007 to 2013, and from 1 October 2013 to 18 November 2019 it was privately collected.

2. On 19 November 2019 Ms O’Bar applied to Child Support to register Mr Saal’s liability. She also asked Child Support to collect arrears.

3. Her application was granted and a decision was also made that Mr Saal owed unpaid child support of $3,578.09 for the period 19 August 2019 to 18 November 2019.

4. Mr Saal lodged a written objection to the decision to collect arrears and an application for an extension of time to object. His extension of time application was granted, however his objection was disallowed on 3 August 2020. 

5. On 11 August 2020 Mr Saal applied to the Tribunal for a review of the objection officer’s decision.

6. The application was heard on 15 October 2020. Mr Saal and Ms O’Bar both attended the hearing by telephone. In addition to oral evidence, the Tribunal had regard to documents provided by the Department (pages 1 to 123).

ISSUES

1. The issues the Tribunal must decide are:

• whether Mr Saal has unpaid child support for the period 19 August 2019 to 18 November 2019; and, if so,

• the amount unpaid.

CONSIDERATION

1. The legislation relevant to this review is contained in the Child Support (Registration and Collection) Act 1988 (the Act). Subsection 39(1) of the Act provides that if a child support liability is not enforceable by the Child Support Registrar due to a decision to accept an application to no longer have the liability enforced, the payee can apply for the liability to become enforceable again.

2. If an application is made under subsection 39(1) of the Act, the payee can also apply under subsection 39A(4) of the Act for unpaid amounts to be treated as arrears amounts and collected by the Registrar. If the application under subsection 39(1) is granted, the Registrar must grant the payee’s application if the specified period does not exceed three months (subsection 39A(5) of the Act).

3. Mr Saal paid $1,492 to [Child 1]’s school on 30 October 2019 in respect of school fees for Term three. Ms O’Bar agreed to that and during the six-year period she collected child support from Mr Saal privately, the school fees were paid in either full or partial satisfaction of his child support liability. 

4. Ms O’Bar submitted that only some of the fees should be treated as child support as she is liable to pay the fees for Term four. Only the amount paid in respect of the period commencing 19 August 2019 should be offset against the arrears owed.

5. Mr Saal stated that he accepts that the application for collection was granted, however he paid an amount of $1,492 directly to [Child 1]’s school on 30 October 2019 and believes this should be deducted from the unpaid amount calculated by Child Support. He did not sign the enrolment form for [Child 1] and, although he paid the fees directly to the school, it should be regarded as child support paid to Ms O’Bar and so the period it represents is not relevant. He submitted the whole amount should be taken into account in calculating the unpaid amount owing.

6. The Tribunal was not persuaded by Mr Saal’s argument. Regardless of whether Mr Saal signed the enrolment form, the school fees statement is issued in Mr Saal’s name only and the arrangement for the payment of fees directly to the school was longstanding. The amount Mr Saal paid was the amount invoiced by the school. The Tribunal finds the amount of $1,492 paid on 30 October 2019 was in respect of a particular period.

7. Term 3 began on Monday 20 July 2020 and ended Friday 25 September 2020.[1] The Tribunal calculates that over the 10-week period the fees amounted to $149.20 per week. In the period 19 August 2020 to 25 September 2020 the Tribunal calculates the amount of $835.52 ($149.2 x 5.6 weeks) was paid by Mr Saal as child support.

   [1] [Source redacted].

8. Because there was no enforceable maintenance liability in place when the payment was made on 30 October 2019, the school fees cannot be credited under section 71A of the Act as a non-agency payment. However, in determining the unpaid amount under section 39A of the Act, the Tribunal finds that an amount of $835.52 is to be excluded. This was a direct payment intended by both Mr Saal and Ms O’Bar to be a child support payment.

9. The Tribunal finds that there is unpaid child support of $2,742.57 ($3,578.09 - $835.52) for the period 19 August 2019 to 18 November 2019 which is enforceable by the Child Support Registrar.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that there is unpaid child support of $2,742.57 for the period 19 August 2019 to 18 November 2019 which is enforceable by the Child Support Registrar.