Stamos and Stamos (Child support)

[2022] AATA 4010

Stamos and Stamos (Child support) [2022] AATA 4010 (9 September 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/MC024147

APPLICANT:  Mr Stamos

OTHER PARTIES:  Child Support Registrar

Ms Stamos

TRIBUNAL:Member P Jensen

DECISION DATE:  9 September 2022

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – non-agency payment – prescribed payment for school fees – payment correctly refused – 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

1. Mr Stamos and Ms Stamos are the separated parents of four children. A child support case was registered from July 2020 with what is commonly called the Child Support Agency or CSA. The CSA has not provided all of the care records for the children but according to an objections officer, Mr Stamos has been recorded as providing 0% care for the children since the child support case was registered.

2. The children attend private schools. On 27 January 2022, Mr Stamos applied to have the following payments credited against his child support liability pursuant to section 71C of the Child Support (Registration and Collection) Act 1988 (“the Act”):

   ·    payments of $988.30 to [School 1] on 15 July 2021, 16 August 2021, 15 September 2021, 15 October 2021 and 15 November 2021; and

   ·    a payment of $2,997.50 to [School 2] on 6 December 2021.

3. The requirements of section 71C were satisfied in respect of each payment. In particular, the payments were of a kind specified in paragraph 19(b) of the Child Support (Registration and Collection) Regulations 2018, namely “fees charged by a school or preschool for that child”. Section 71C required the payments to be credited, subject to section 71D of the Act which relevantly states: “The [decision-maker] may refuse to credit an amount under section … 71C if satisfied that, in the circumstances of the particular case, the amount ought not to be credited.”

4. An original decision-maker granted Mr Stamos’s applications and the payments were credited. At a practical level, the decision resulted in Ms Stamos paying those school fees.

5. Ms Stamos objected to the decision. In support of her objection, she provided the cover page of Federal Circuit Court interim orders dated 9 December 2020 and orders 6 to 8 of those orders, with order 8 redacted. Her highly selective disclosure of that potentially relevant information was unfortunately typical of the approach she took when providing documentary evidence. Order 6 states: “The husband shall continue to pay [Child 1]’s high school fees and [Child 2], [Child 3] and [Child 4]’s primary school fees as and when they fall due.” The objections officer concluded that the payments ought not to be credited, and made a decision accordingly.

6. Mr Stamos applied to the Tribunal for further review. I heard the matter on 6 September 2022. Mr Stamos and Ms Stamos attended the hearing via an MS Teams audio link. Shortly before the hearing, Ms Stamos provided additional documentation. After the hearing, Ms Stamos provided further additional documentation. It was documentation that Ms Stamos could have provided 14 days prior to the hearing, pursuant to section 10 of the Child Support Review Directions, or at least several days prior to the hearing, thereby avoiding potential unfairness to Mr Stamos (in respect of the documents provided shortly before the hearing) or the necessity to reconvene for a second day of hearing in order to provide Mr Stamos to response to Ms Stamos’s post-hearing documentation. I decided to not accept that documentation into evidence and I have not had regard to that documentation when making my decision.

7. On 30 June 2021 the Federal Circuit Court made interim parenting orders and final property orders which included the following: “All previous property orders are discharged.” Prior to the Tribunal hearing I arranged for the parents to be asked to provide a complete copy of the sealed orders dated 9 December 2020, and Ms Stamos did so. At the hearing I noted that all of the orders dated 9 December 2020 appeared to deal with the parents’ property, i.e. they were property orders. Ms Stamos submitted that there were also orders concerning parenting, but she was unable to locate any such orders. The orders dated 9 December 2020 were property orders and the orders dated 30 June 2021 discharged those earlier orders. The later orders did not include an order that Mr Stamos pay the children’s school fees.

8. In considering whether one parent should ultimately pay the six fees in question or whether the fees should be apportioned between the parents, the parents’ incomes were a significant factor. Mr Stamos’s 2019-20 adjusted taxable income was $180,019. He stated that in previous years his taxable income had been approximately half of that figure because the family had operated a business via a trust and the profits had been distributed between himself and Ms Stamos. He said he is now employed by a company controlled by his sister and he earns $80,000 per annum as an employee. Ms Stamos suspects that Mr Stamos’s wage understates the broader financial resources that are available to Mr Stamos via his relationship with his employer. Ms Stamos’s 2019-20 adjusted taxable income was $18. She said she has not been in paid employment since prior to [Child 1]’s birth in 2005. She said she has applied for income support payments. Mr Stamos submitted that Ms Stamos should be assessed for child support purposes on her earning capacity. All of those matters — the apportionment of private school fees, the quantification of Mr Stamos’s income and financial resources via his relationship with his employer and a determination as to whether regard can be had to Ms Stamos’s earning capacity — would normally be dealt with in a departure application, commonly referred to as a Change of Assessment: see chapters 2.6.9 and 2.6.14 of the Child Support Guide. If either parent had lodged a departure application, it might have been appropriate to effectively leave the resolution of the current matter to that more comprehensive process. However, neither parent has lodged a departure application.

9. As noted earlier, Mr Stamos earns $80,000 per annum. Ms Stamos currently does not earn any income. If her application for income support payments is successful, her income will presumably still be less than the child support income support amount, which is currently $27,063 per annum. It is the income considered necessary for self-support and from which a parent is considered to have a minimal capacity to contribute to the children’s costs (although I note that Ms Stamos’s accommodation costs are quite low because she owns her unencumbered home).

10. Mr Stamos said the property settlement resulted in Ms Stamos receiving an unencumbered home, a vehicle and $50,000. Ms Stamos said the $50,000 was for legal fees (and therefore, at a practical level, she was not left with a significant sum of money). Ms Stamos said Mr Stamos received a rental property and the family company. As I noted during the hearing, I will proceed on the basis that the property settlement was fair.

11. Ms Stamos provided part of a letter from Mr Stamos’s solicitor to her solicitor dated 13 August 2020. Ms Stamos redacted all of the contents of the letter apart from one sentence: “Our client instructs that, in addition to paying child support as assessed, he will continue to pay for [Child 1]’s schooling as well as the other boy’s [sic] primary school fees until they finish at [School 2].” Neither parent provided a complete copy of that letter. Mr Stamos did not provide any correspondence to suggest that he had subsequently adopted a different position prior to the making of the final property orders. As was noted during the hearing, the final property orders do not address the issue. On one view, the important point is that the court imposed an interim obligation on Mr Stamos to pay the school fees and it relieved him of that court-ordered obligation when it made the final property orders. On another view, the important point is that Mr Stamos stated that he would pay for [Child 1]’s schooling as well as the other boys’ primary school fees until they finish at [School 2], and final property orders were made in the context of that statement (and the interim property order merely reflected that statement). In my opinion, the second view is the better view. It is consistent with the fact that Mr Stamos had been the primary income earner and Ms Stamos had been the primary homemaker during their relationship, and Mr Stamos was likely to earn a higher income post-separation. It is also supported by an email from [School 1] to Ms Stamos dated 1 September 2022 which, after being partially redacted and cropped by Ms Stamos, relevantly states:

    I can inform you that the College has a signed agreement/contract with [Child 1]’s father, [Mr Stamos], who has accepted 100% responsibility for the school fees and levies for [Child 1], dated 5 October 2020. Due to Privacy laws, I cannot provide any further information about the school fee account.

    The above-stated agreement/contract supersedes the enrolment application form initially signed by both parents on 7 February 2017 to jointly and severally agree to College enrolment conditions and fees.

12. Finally, Ms Stamos stated, and Mr Stamos did not dispute, that she has paid the [School 2] fees for 2022. In that way, there has already been some apportionment of the school fees when viewed over a longer period. In light of all of those circumstances, the preferable decision is to refuse Mr Stamos’s application to have the six payments in question credited pursuant to section 71 of the Act.

DECISION

The decision under review is affirmed.