Simpson and Simpson (Child support)

[2020] AATA 5110

Simpson and Simpson (Child support) [2020] AATA 5110 (30 October 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/BC019855

APPLICANT:  Mr Simpson

OTHER PARTIES:  Ms Simpson

Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  30 October 2020

DECISION:

The decision under review is set aside and, in substitution, the payment of $380.00 that was made on 10 February 2020 is credited pursuant to section 71C of the Child Support (Registration and Collection) Act 1988.

CATCHWORDS

CHILD SUPPORT – non-agency payment – whether school fees should be credited – no mutual intention – conditions for crediting as prescribed payment satisfied – 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 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

1. Mr Simpson and Ms Simpson are the parents of [Child 1] and [Child 2]. On 4 February 2020, Ms Simpson applied to register a child support case with what is commonly called the Child Support Agency, or CSA. On 10 February 2020, Mr Simpson paid [Child 2]’s [High School] fees of $380 (“the Payment”). On 20 February 2020 the CSA contacted Mr Simpson, and in the course of their conversation, Mr Simpson effectively applied to have the Payment credited against any future child support debt that he might owe to the CSA. On 3 March 2020 the CSA decided to grant Ms Simpson’s application to register a child support case, with effect from 4 February 2020. The CSA recorded Ms Simpson as providing 100% care to both children.

2. The Payment could potentially be credited pursuant to section 71A or 71C of the Child Support (Registration and Collection) Act 1988 (“the Act”). On 16 March 2020 the CSA decided to not credit the Payment pursuant to section 71A. It did not consider whether the Payment could be credited pursuant to section 71C. On 18 May 2020, Mr Simpson referred the CSA to section 71C. On 28 May 2020 the CSA decided to not credit the Payment pursuant to that section. Mr Simpson promptly objected to that decision. An objections officer disallowed his objection. Mr Simpson promptly applied to the Tribunal for further review. I heard the matter on 30 October 2020. Mr Simpson and Ms Simpson gave sworn evidence by conference phone. At the hearing, Mr Simpson acknowledged that the Payment could not be credited pursuant to section 71A. In my opinion, that acknowledgement was properly made.

3. Departmental policy relevantly summarises section 71C of the Act as follows (at 5.3.1 of the Child Support Guide):

   The Registrar can credit certain payments towards a payer's child support liability regardless of the intention of the parents at the time the payment was made … except if:

   ·…

   ·at the time the payment was made, the payer had at least [14% care] of any of the children to whom the relevant administrative assessment relates …

   Credit can be given up to a maximum of 30% of the liability, provided:

   ·the balance of child support is paid as it becomes due and payable

   ·the payer has less than 14% care of all of the children to whom the relevant administrative assessment relates at the time the credit is being applied …, and …

   The types of payments that can be credited in this way are prescribed by regulation … They are:

   ·…

   ·fees charged by a school or preschool for that child …

4. At the hearing, Ms Simpson acknowledged that the Payment satisfied the requirements of section 71C of the Act. In my opinion, that acknowledgement was properly made.

5. Section 71D of the Act states:

   Registrar may refuse to credit amounts in special circumstances

   The Registrar may refuse to credit an amount under section 71, 71A or 71C if satisfied that, in the circumstances of the particular case, the amount ought not to be credited.

6. On 20 May 2020, Mr Simpson informed the CSA that the parents had agreed that they would each pay one child’s school fees. Ms Simpson paid [Child 1]’s fees of $380 and Mr Simpson paid [Child 2]’s fees of $380. It was for that reason that the CSA decided to exercise the discretion contained in section 71D and not credit the Payment pursuant to section 71C. However, as Mr Simpson explained to the CSA at the time, that agreement was made before the child support case had been registered. The CSA noted: “I asked if there had been any discussion about how [the agreement] would impact on the assessment being made, and [Mr Simpson] said no”.

7. At the hearing, Mr Simpson and Ms Simpson agreed that when the Payment was made, they had discussed the possibility of having a general agreement concerning the payment of child support — Mr Simpson had proposed paying $200 per week — but no general agreement had been reached. It was in that context that they had at least agreed to each pay one child’s school fees.

8. As noted above, the CSA decided on 3 March 2020 to register a child support case with effect from 4 February 2020. Mr Simpson was assessed to pay approximately $328 per week in child support. As I explained during the hearing, that rate of child support was based on the parents’ most recently assessed adjusted taxable incomes, their percentages of care of the children, and the children’s ages, and it is presumed to represent a fair contribution by Mr Simpson towards both children’s ordinary costs, including the ordinary costs of their attendance at a public school. If the Payment were not credited, Mr Simpson would effectively be required to make a fair contribution towards both children’s public school fees via his administratively assessed rate of child support payable, and he would also have directly paid [Child 2]’s public school fees. Having explained those general concepts during the course of the hearing, Ms Simpson stated that it would be appropriate to credit the Payment pursuant to section 71C of the Act, and I agree.

DECISION

The decision under review is set aside and, in substitution, the payment of $380.00 that was made on 10 February 2020 is credited pursuant to section 71C of the Child Support (Registration and Collection) Act 1988.