Scrubb and Scrubb (Child support) - [2021] AATA 1290

Scrubb and Scrubb (Child support) [2021] AATA 1290 (2 March 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2020/MC020495
APPLICANT:  Mr Scrubb
OTHER PARTIES:  Child Support Registrar
Ms Scrubb

TRIBUNAL:Senior Member R Ellis
DECISION DATE: 02 March 2021
DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – non-agency payments – no mutual intent – whether payments direct to parent entitled to receive child support were prescribed payments – payments could not be credited due to care level of children – decision under review affirmed

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

BACKGROUND

Mr Scrubb and Ms Scrubb are the parents of [Child 1] (born June 2014) and [Child 2] (born July 2016). There has been a child support assessment in place since 20 December 2019 with collection by the Child Support Agency from the same date. Mr Scrubb is currently the parent liable to pay child support under the assessment.
From 5 December 2019 the child support assessment reflected that the children were in the 21 per cent care of Mr Scrubb and the 79 per cent care of Ms Scrubb.
On 14 July 2020 Mr Scrubb applied to the Child Support Agency for credit of 13 payments of $500 each made direct to Ms Scrubb as non-agency payments. These payments were made during the period from 17 April 2020 to 10 July 2020.
On 4 September 2020 the Child Support Agency made the decision to credit the 13 payments, totaling $6,500, as non-agency payments.
On 23 September 2020 Ms Scrubb objected to this decision and on 7 December 2020 the Child Support Agency allowed the objection and made the decision to refuse to accept the 13 payments as non-agency payments (the objection decision).
On 18 December 2020 Mr Scrubb applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.
The Tribunal conducted a hearing into the application on 2 March 2021. Mr Scrubb and Ms Scrubb gave evidence on affirmation by conference telephone. The Child Support Agency provided the Tribunal and the parties with papers relevant to the review (119 pages).

ISSUES

The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (the Act).
When a child support liability is registered under the Act for collection, the amount payable is a debt due to the Commonwealth and must be paid to the Child Support Agency not the payee. In some circumstances the Child Support Agency may credit payments made directly to a payee or to a third party against a child support liability that is registered for collection (sections 71, 71A or 71C of the Act). The Child Support Agency refers to the credits under sections 71…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] AATA 1290
Decision Date: 2 March 2021

CaseChat Overview and Summary

The case of *Scrubb and Scrubb* concerned a dispute over child support payments. The applicant sought to have certain payments made directly to the respondent, the child's parent, credited against their child support liability. The respondent argued that these payments were not prescribed payments and therefore could not be credited. The matter came before the court for review of a decision made by the Child Support Registrar.

The central legal issue before the court was whether payments made directly by the applicant to the respondent, which were not made through the Child Support Agency, could be recognised as satisfying the applicant's child support obligations. This involved determining whether the payments met the criteria for "prescribed payments" under the relevant legislation, and if so, whether they could be credited despite the care level of the children involved.

The court affirmed the decision under review, finding that there was no mutual intent between the parties that the direct payments would be treated as child support. Crucially, the court determined that even if the payments could be considered prescribed payments, they could not be credited against the applicant's liability because the care level of the children meant that the respondent was not entitled to receive child support from the applicant at that time. The court applied the principles of the *Child Support (Registration and Collection) Act 1988* concerning the nature of prescribed payments and the conditions for crediting such payments.

Orders