Stark and Stark (Child support)

[2019] AATA 5106

Stark and Stark (Child support) [2019] AATA 5106 (12 September 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC016861

APPLICANT:  Mr Stark

OTHER PARTIES:  Child Support Registrar

Ms Stark

TRIBUNAL:Member J Longo

DECISION DATE:  12 September 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – non-agency payment - whether payment made to a third party in lieu of child support – no mutual intention – whether payments could be credited as prescribed non-agency payments – care more than regular – payments not to be credited - 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 whether payments made by Mr Stark should be credited as payment towards his child support liability.

2.Mr Stark made payments totalling $3,292 for which he then applied to Child Support for these payments to be credited towards his child support liability.

3.On 5 December 2018 the Department decided to refuse to credit the amounts as a non‑agency payment. On 14 December 2018 Mr Stark objected to the Department’s decision. On 11 February 2019 a Departmental objections officer disallowed Mr Stark’s objection.

4.On 22 March 2019 Mr Stark applied to the Administrative Appeals Tribunal (the tribunal) for review. On 12 September 2019 the tribunal conducted a hearing. Mr Stark and Ms Stark spoke to the tribunal and gave sworn evidence. The tribunal received documents (300 pages) provided by the Department. Copies of these documents were provided to both parties by the Department prior to the hearing.

CONSIDERATION

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

6.Section 71A of the Act states that if a payer makes a payment to a third party in satisfaction of a liability and it is intended by both to be in complete or partial satisfaction of the payer’s child support liability, the amount can be credited against the payer’s liability as a non‑agency payment.

7.There is no dispute that Mr Stark made payments of childcare costs, petrol, gas utility payments and mortgage payments on 5 and 12 November 2018 totalling $3,292. Mr Stark stated that the payments were made to ensure that these expenses were covered because he felt that if he didn’t make the payments, no one else would pay them and these would then go into arrears. Mr Stark stated that as no formal decision had been made regarding the care arrangements for the children, he maintained the childcare payments so they did not lose their places, which would have been difficult to find again if taken out of child care.

8.Mr Stark stated that he made the payments but could not recall directly speaking to Ms Stark, and Ms Stark agreeing, that the payments were in lieu of the child support liability. He made the payments because nobody else was making the payments as Ms Stark was not working at the time. Ms Stark also confirmed that there was never any discussion at the time regarding the payments and that they would be in lieu of Mr Stark’s child support liability. The tribunal therefore finds that Mr Stark and Ms Stark never discussed Mr Stark’s payments of childcare costs, utilities, mortgage payments and petrol and that they would be considered as child support.

9.It is clear from the evidence in the Department documents and the evidence at hearing that there was never any mutual intention by Mr Stark and Ms Stark that the payments made by Mr Stark would be credited against his child support liability. It is also clear that both Mr Stark and Ms Stark never agreed that the payments were in lieu of child support and never discussed the matter. Accordingly, the tribunal cannot accept that the payments were intended by both Ms Stark and Mr Stark to be credited against Mr Stark’s child support liability.

10.Section 71C of the Act also allows for some non-agency payments to be credited and it is not necessary for there to be mutual intention between the parties. To be credited under this section of the Act, the payments need to be one of the types of payments prescribed under the Act. Childcare costs and mortgage payments are prescribed payments under the regulations.

11.In addition to the payments being prescribed under the regulations, the payer must have less than regular care of the children for the payment to meet the requirements under section 71C of the Act. In this case, based on Mr Stark and Ms Stark’s evidence, which is also recorded by the Department, Mr Stark had more than regular care of the children. The Department records that Mr Stark and Ms Stark had shared care (49% and 51% respectively) of the children at the time the payments were made and at the time the claim for the non-agency payments were lodged with the Department. Accordingly, the requirements under section 71C of the Act are not met and the amounts cannot be credited as prescribed non-agency payments.

12.The tribunal therefore determines that the $3,292 in payments made by Mr Stark cannot be credited as payment towards Mr Stark’s child support liability as non-agency or prescribed non‑agency payments and therefore the decision of the Department is correct.

DECISION

The decision under review is affirmed.