Sudaksan and Sudaksan (Child support)

[2024] AATA 2758

Sudaksan and Sudaksan (Child support) [2024] AATA 2758 (20 June 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/BC027691

APPLICANT:  Mr Sudaksan

OTHER PARTIES:  Child Support Registrar

Mrs Sudaksan

TRIBUNAL:Senior Member J Longo

DECISION DATE:  20 June 2024

DECISION:

The decision under review is set aside and, in substitution, the Tribunal decides that the application for collection is granted from 15 June 2023.

CATCHWORDS 
CHILD SUPPORT – pattern of payment of child support – no unpaid amounts of child support prior to the application – no arrears of child support – application for collection is granted – decision under review set aside

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 theChild 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 becomes enforceable when an application for the Child Support Registrar to collect child support was made by Mrs Sudaksan.

2. Mrs Sudaksan made an application to Services Australia – Child Support (Child Support) for the collection of child support on 2 June 2023.

3. On 24 July 2023 Child Support made the decision to accept Mrs Sudaksan’s application for collection from 7 June 2023. On 2 November 2023 Mr Sudaksan objected to Child Support’s decision. On 15 March 2024, an objections officer partly allowed Mr Sudaksan’s objection and made a decision to accept the application for collection from 2 June 2023.

4. On 22 March 2024 Mr Sudaksan applied to the Administrative Appeals Tribunal (the Tribunal) for review. On 20 June 2024, the Tribunal conducted a hearing via conference telephone. Mr Sudaksan and Mrs Sudaksan gave sworn evidence under affirmation. The Tribunal received documents (120 pages) provided by Child Support. Copies of these documents were provided to both parties by Child Support prior to the hearing. Mr Sudaksan provided additional documents to the Tribunal prior to the hearing (A1 to A4).

CONSIDERATION

1. The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (‘the Act’).

2. 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. In addition, section 28A of the Act allows arrears of child support to be collected. Child Support records show that Mrs Sudaksan first made an application for registration on 6 September 2021 and that her application was accepted. At the time, the assessment was not enforced by Child Support but rather subject to private collect.

3. Mrs Sudaksan subsequently made an application for collection of child support by the Registrar on 2 June 2023. On 24 July 2023 Child Support granted Mrs Sudaksan’s application for collection. At the time of the decision, Mr Sudaksan was overseas. On his return to Australia, Mr Sudaksan objected to the decision.

4. Mr Sudaksan stated at the hearing that as part of the private arrangement in place, he paid the child support liability in advance on the 15th of each month when he was paid. Mr Sudaksan stated that he had paid child support to Mrs Sudaksan via bank transfer on 13 May 2023 for the period up to and including 14 June 2023.

5. Mrs Sudaksan told the Tribunal that she was unsure whether Mr Sudaksan’s monthly payments were payments in advance or in arrears – she thought the payments were payments in arrears, for the past month, but she did not have any evidence either way and had never reconciled the payments to determine whether they were in advance or in arrears. She stated that she was happy for the collection of child support by the Registrar to commence from 15 June 2023 in the circumstances.

10.It is clear in this matter that Child Support had not collected child support on behalf of Mrs Sudaksan prior to her application for this to occur on 2 June 2023. It was therefore a correct decision for the Registrar to accept the application and for Child Support to collect child support. In this case, Child Support determined that the child support liability became enforceable on 2 June 2023. However, paragraph 28(1)(c) of the Act allows for the liability to become enforceable from a later date. While it is usual for the liability to become enforceable from the date an application for collection of child support is made, in this case, the liability enforceable against Mr Sudaksan should be made at a later date to ensure that the payment is made for the period in arrears. This is because until a request for collection was made, Mr Sudaksan had been paying in advance.

11.Based on the evidence at hearing, the Tribunal finds that Mr Sudaksan was paying child support at the time to Mrs Sudaksan, in advance of the period for which it applied. The Tribunal finds that Mr Sudaksan’s payment of child support on 13 May 2023 was for the period from 13 May 2023 to 14 June 2023 and that this has been the pattern of payment of child support. The Tribunal accepts Mr Sudaksan’s evidence that this was the arrangement between the parties. The Tribunal is therefore satisfied that there were no unpaid amounts of child support prior to the application for collection on 2 June 2023 and, therefore, no arrears of child support. Furthermore, the Tribunal finds that when the application was made, Mr Sudaksan had paid the liability of child support in advance and consequently his liability had been paid until 14 June 2023. Mrs Sudaksan accepted that the child support collection should start from 15 June 2023.

12.The adjustment of the commencement of the collection of the registrable maintenance liability to 15 June 2023 will therefore result in Mr Sudaksan’s child support being collected in arrears, in the usual manner that collection occurs by Child Support. The Tribunal notes that if there is any overpayment of child support, this will be offset by the Registrar from future payments of Mr Sudaksan’s child support liability.

DECISION

The decision under review is set aside and, in substitution, the Tribunal decides that the application for collection is granted from 15 June 2023.