Sykes and Laslett (Child support)

[2023] AATA 1645

Sykes and Laslett (Child support) [2023] AATA 1645 (12 April 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/PC025057

APPLICANT:  Mr Sykes

OTHER PARTIES:  Child Support Registrar

Ms Laslett

TRIBUNAL:Member M Martellotta

DECISION DATE:  12 April 2023

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – registration details – application for collection of the maintenance liability - whether the application for collection and arrears should be accepted – the application for collection and arrears 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 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

BACKGROUND

1. Mr Sykes and Ms Laslett are the parents of two children for whom an assessment for child support has been registered since 9 October 2009.

2. On 20 January 2022 Ms Laslett made an application to Services Australia (Child Support) to have the child support liability collected on her behalf. That application was accepted on 27 January 2022.

3. On 3 August 2022 Ms Laslett applied for the collection of three months of arrears. On 26 September 2022 Child Support decided to accept the arrears application. Mr Sykes objected to the decision. That objection was disallowed.

4. Mr Sykes now comes to the Tribunal seeking review of the decision. A hearing was held on 12 April 2023. Mr Sykes attended in person and Ms Laslett participated by telephone, they each made submissions and provided evidence. Other evidence considered by the Tribunal included documents provided by Child Support, copies of which had been sent to both parents.

ISSUES

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

2. Child support legislation is interpreted by the Agency with the aid of the Child Support Guide (the Guide). The Tribunal is not bound by law to apply the policy as set out in the Guide, but provided the policy is consistent with the legislation, it is required to have regard to it and in the ordinary course follow it.[1]

   [1] See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

3. The issue that arises for consideration is whether Ms Laslett’s application for collection of child support and arrears is to be accepted.

CONSIDERATION OF LEGISLATION, SUBMISSIONS AND EVIDENCE

1. The Act provides that when the Child Support Registrar makes an assessment then a registerable maintenance liability arises. This liability is ‘registered’ in the Child Support Register.[2] This liability is payable to the Child Support Registrar who collects the liability on behalf of the payee.[3]

   [2] Subsection 24A(1) of the Act.

   [3] Section 30 of the Act provides that if a registrable maintenance liability is registered, an amount payable under the child support liability is a debt due to the Commonwealth and must be paid by the payer to the Registrar, not to the payee.  

2. The payee however can under the Act[4] elect to ‘opt out’ of having the liability enforced by the Child Support Register. This means that in effect there is a ‘private arrangement’ for the payment of the assessed liability between the payer and the payee.

   [4] Subsection 24A(2) of the Act.

3. A payee can however at any time apply to ‘opt in’ for the collection of child support by the Child Support Registrar.[5] Where a person has previously elected to ‘opt out’ they can apply for the liability to again become enforceable.[6] This is the situation in this case. The Act provides that Child Support must grant the application unless they are satisfied that:

   a)the payer of the liability has been complying with his or her child support obligations in relation to the payee; or

   b)the payer of the liability has satisfactorily explained and rectified a failure to comply with his or her child support obligations in relation to the payee; or

   c)there are special circumstances that exist in relation to the liability that make it appropriate to refuse the application.

   [5] Subsection 25(1) of the Act.

   [6] Section 39 of the Act.

4. A payee can also make a separate application for the Child Support Registrar to collect arrears of any unpaid amounts that are payable. This is usually for a period of three months and if that application is granted then those arrears also become child support debts payable to the Registrar.[7]

   [7] Subsection 28A(3) or 39A of the Act.

5. In this particular case as noted an assessment for child support has been registered since 9 October 2009. The parties confirmed that the collection of child support had been collected by Child Support. In 2020 however Ms Laslett ‘opted out’ and requested that Child Support cease collecting on her behalf. According to Child Support documents:

   a)Child Support was advised of a change in care in 2020. As a result of that change new assessment issues resulted in Mr Sykes having a continued child support liability.

   b)On 20 January 2022 Ms Laslett applied for child support collection and this was recorded as a subsequent collection application.

   c)Mr Sykes was contacted by Child Support on the following day, 21 January 2022 to discuss the application. He was advised to provide updated information by 27 January 2022 or the application to opt in would be processed on 28 January 2022.

   d)On 21 January 2022 the parties were advised of an update to the care percentages for the children.

   e)A further discussion took place on 27 January 2022 and on that date the application to have Child Support collect was accepted.

   f)On 3 August 2022 Child Support made contact with Ms Laslett to discuss an application made by Mr Sykes to have a non-agency payment credited against the liability. In that discussion Ms Laslett applied for Child Support to collect three months’ arrears of child support for the period 20 October 2021 to 19 January 22, an amount of $3037.09.

   g)On 3 August 2022 Child Support made a decision to accept Mr Sykes’ non-agency payment.

   h)On 26 September 2022 Child Support decided to accept the arrears application.

6. Mr Sykes’ submission is that the Agency should not have accepted the application for arrears. He said that it is unfair that Ms Laslett has brought that application some months after her application for collection. He provided the following evidence:

   a)In January 2020 he assumed 100% care of one of the children.

   b)He and Ms Laslett agreed that as this would necessitate him renting a larger home and meeting some additional expenses then Ms Laslett would not seek to enforce the child support liability as they each would have a child in their full-time care.

   c)This agreement is evidenced by correspondence that passed between them. In particular Mr Sykes relies upon an email received from Ms Laslett on 8 January 2020 in which she states: “Rest assured I wont be seeking child support as its only fair being that we’ll have one child each. Even if I’m entitled to payments I wont be pursuing it. I am actually a person with integrity, but you don’t know me.” [8]

   d)That in the period he had full-time care of the child, his expenses increased due to having rented a larger home and because he met the child’s dancing lesson costs in full. He agreed that when the child was living with the mother, she met those costs in full. He did not contribute to those costs as he considered those expenses were to be met out of the child support payments received by Ms Laslett.

   e)He said any costs he made in that period of full-time care fully offset any arrears amount.

   f)In January 2022 the child returned to live with her mother.

   g)In the period that the child lived with him he did not make any child support payments to Ms Laslett.

   [8] Page 16.

7. Ms Laslett agreed that she and Mr Sykes had an agreement to change the care and she does not refute the email dated 8 January 2020. She said it was only in discussion with a Child Support officer that she was encouraged to apply for the arrears and that she agrees that her decision was in response to Mr Sykes applying for the credit of non-agency payments.

   The application for collection

8. In this matter, the factors identified in subsection 39(5) of the Act pertain to the question of whether or not the application to opt back in for the collection of child support by the Registrar should be accepted. As noted this aspect was not really in issue at hearing. In any event the Tribunal is satisfied that none of the criteria in subsection 39(5) have application for the following reasons.

9. The Tribunal is satisfied and finds that Mr Sykes has not been complying with his child support obligations since 2020. So, paragraph 39(5)(a) does not apply.

10. The Tribunal also concludes that paragraph 39(5)(b) does not have application. Whilst Mr Sykes has provided an explanation for not paying child support, he has not rectified that failure as required by the legislation.

11. The final consideration is whether special circumstances[9] exist which make it appropriate for the Registrar to refuse the application (paragraph 39(5)(c)). According to the Guide:[10]

    When the payee applies for collection, Services Australia will contact the payer. If the payer provides a reason why they believe their circumstances are special such that the application for collection should be refused, Services Australia will give the payee an opportunity to comment on the reason the payer has given. The Registrar will then make a decision based on the information and evidence provided by both parties.

    [9] The phrase special circumstances is not defined in the legislation. The Family Court has held that “it is intended to emphasise that the facts of the case must establish something special or out of the ordinary” (Gyselman and Gyselman (1992) FLC92-279). Likewise, in Phillippe and Phillippe (1978) FLC 90–433 the Court held that “special circumstances” are “facts peculiar to the particular case which set it apart from other cases”.

    [10] 5.6.3.

12. Child Support legislation provides that parents have a primary duty to maintain their children.[11] The objects of the Act include that children receive the financial support from their parents that the parents are liable to provide and that periodic amounts payable are paid on a regular and timely basis.[12]

    [11] Section 3 Child Support (Assessment) Act 1989.

    [12] Section 3 of the Act.

13. Whilst the Tribunal recognises that the parties had some agreement regarding the payment of child support the Tribunal is not satisfied that even the existence of such circumstances would make it appropriate for the Registrar to refuse the application to collect.

14. The Tribunal concludes that Ms Laslett’s application for collection of child support made on 20 January 2022 must be accepted.

The application for collection of arrears

1. In this case it is not in contention and the Tribunal finds that on 20 January 2022 Ms Laslett made an application for collection of child support. The Tribunal has concluded that that application was properly accepted.

2. On a later date Ms Laslett (3 August 2022) also applied for the collection of three months’ arrears. Mr Sykes says that it is unfair that the application for collection of arrears was made later in time. The Tribunal notes that the application for collection of arrears will usually be made at the same time as the application for collection is made, however there is nothing in the legislation that specifies that the applications are to be lodged concurrently. Section 39A of the Act is enlivened when a person applies for liability to again become enforceable under subsection 39(1) of the Act.

3. Where a person’s application for arrears does not exceed three months then the Child Support Registrar must accept the application.[13] The Tribunal is satisfied and finds that these arrears have not been paid.

   [13] Subsection 39A(5) of the Act.

4. In this case Child Support has decided that Mr Sykes owes three months’ arrears of $3037.09 for the period. Mr Sykes argues that amounts he has made for rent and dance lessons should be offset against the arrears. Ms Laslett says that there was no mutual agreement that those payments were to be in lieu of the child support liability. Amounts cannot be credited against an arrears amount pursuant to the provisions which deal with non-agency payments (section 71,71A or 71C).

5. Section 73C of the Act deals with prescribed non-agency payments that can be credited against a payer’s child support liability. Subsection 39A(8) of the Act specifies that:

   Amounts that would have been credited under section 71C

   (8)  To avoid doubt, a reference in this section to an unpaid amount payable under a liability does not include a reference to any amount that would have been credited against that unpaid amount under section 71C if the liability had been an enforceable maintenance liability at all relevant times.

6. It is however generally open to consider whether any payments made during the arrears period should reduce the arrears. As noted, Mr Sykes submits payments he has made to move into a larger rental property to accommodate the child living with him and payments he made for dance lessons exceeds the arrears amount should reduce the arrears. As noted, this aspect is disputed by Ms Laslett. She said that there was no specific agreement that such payments were to be in partial or complete satisfaction of the child support liability.

7. Mr Sykes stated in his evidence that the dance costs were met solely by Ms Laslett when she has full time care of the child. Ms Laslett submitted that Mr Sykes chose to upgrade his accommodation, and this was not something that she requested that he do.

8. The tribunal concludes that it is not satisfied that the arrears are to be reduced by the amounts paid by Mr Sykes. The Tribunal is otherwise satisfied that Ms Laslett’s application for collection of arrears is to be accepted.

DECISION

The decision under review is affirmed.