Sebastian and Jaeger (Child support)

[2020] AATA 583

Sebastian and Jaeger (Child support) [2020] AATA 583 (30 January 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC017391

APPLICANT:  Miss Sebastian

OTHER PARTIES:  Child Support Registrar

Mr Jaeger

TRIBUNAL:Member J Longo

DECISION DATE:  30 January 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT - opt-in arrears - whether 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.   This application for review is about the day on which the child support liability first became enforceable when an application for the Child Support Registrar to collect child support was made by Miss Sebastian.

2.Miss Sebastian made an application to the Department of Human Services – Child Support (the Department) for the collection of child support on 11 April 2019 and requested the collection of arrears of child support for the period from 11 January 2019 to 10 April 2019.

3.On 29 April 2019 the Department made the decision to accept Miss Sebastian’s application for the collection from 11 April 2019 and to collect arrears for the specified period 11 January 2019 to 10 April 2019.

4.On 23 May 2019 Mr Jaeger objected to the Department’s decision. On 11 September 2019 an objections officer allowed Mr Jaeger’s objection and refused to collect arears for the specified period 11 January 2019 to 10 April 2019. 

5.On 12 September 2019 Ms Sebastian applied to the Administrative Appeals Tribunal (the tribunal) for review. On 30 January 2020 the tribunal conducted a hearing. Mr Jaeger and Miss Sebastian spoke to the tribunal via conference telephone and gave sworn evidence. The tribunal received documents (209 pages) provided by the Department. Copies of these documents were provided to both parties by the Department prior to the hearing.

CONSIDERATION

6.The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (“the Act”).

7.Paragraph 28(1)(c) of the Act states that if a person is entitled to receive child support under a registrable maintenance liability and has previously elected not to have the liability enforced under the Act, the Child Support Registrar may determine the day on which the liability becomes enforceable, provided that date is not later than 60 days after the application is made.

8.In addition, section 28A of the Act allows arrears of child support to be collected. The Department records show that Miss Sebastian made an application for registration on 5 September 2008 and that her application was accepted. Since that time, the assessment was, for periods, both enforced and not enforced by the Department.

9.Miss Sebastian made an application for collection of child support by the Department on 11 April 2019. On 29 April 2019, the Department granted Miss Sebastian’s application for collection and also accepted the application made by Miss Sebastian to collect arrears for the specified period 11 January 2019 to 10 April 2019.

10.Mr Jaeger stated at the hearing that he was up to date with the payment of child support to Miss Sebastian as he had been paying Miss Sebastian by cardless cash. In addition, on 12 December 2018, he gave Miss Sebastian $2,500 which was an advance on child support. Mr Jaeger obtained a receipt from Miss Sebastian for this payment. In addition, Mr Jaeger stated that he had made payments to Miss Sebastian during the period. Many of these payments were cardless cash payments.

11.Miss Sebastian confirmed that she had received cardless cash payments from Mr Jaeger but did not keep a record of these payments. Miss Sebastian stated that the payment of $2,500 from Mr Jaeger was for child support that was outstanding. Miss Sebastian stated that most of the payments were received from Mr Jaeger but disputed two payments on 11 and 17 January 2019 as he did not make cardless cash payments when he was paying child support to her account.

12.It is clear in this matter that the Department had not collected child support on behalf of Miss Sebastian prior to her application for this to occur on 10 April 2019. It was therefore a correct decision for the Registrar to accept the application and for the Department to collect child support.

13.Subsection 28A(6) of the Act provides that any “unpaid amounts” (of arrears) become child support debts at the time when the registrable liability became enforceable. In this case, paragraph 28(1)(c) of the Act means that the registrable maintenance liability became enforceable on 10 April 2019.

14.Based on the evidence at hearing, the tribunal finds that while Mr Jaeger was paying the assessed amounts of child support at the time to Miss Sebastian, as he would pay via cardless cash and deposits, as provided to the Department on page 68 of the documents. In addition, Mr Jaeger gave $2,500 to Miss Sebastian on 12 December 2018 as an advance payment of child support. The tribunal accepts Mr Jaeger’s evidence of these payments. There is no evidence before the Tribunal which supports Miss Sebastian’s claim that he had not paid child support during the three-month period prior to registration for collection. In fact, Miss Sebastian signed a receipt acknowledging that the $2,500 paid to her on 12 December 2018 was an advance of child support. The tribunal is therefore satisfied that there were no unpaid amounts of child support prior to the application for collection on 11 April 2019. Therefore, no arrears of child support prior to this date is payable.

DECISION

The decision under review is affirmed.