Tebbutt and Benstock (Child support)

[2023] AATA 3303

Tebbutt and Benstock (Child support) [2023] AATA 3303 (23 August 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2023/BC025911

2023/BC025912

2023/BC025891

APPLICANT:  Mr Tebbutt

OTHER PARTIES:  Child Support Registrar

Ms Benstock

TRIBUNAL:Member M Martellotta

DECISION DATE:  23 August 2023

DECISION:

The decisions under review are affirmed.

CATCHWORDS

CHILD SUPPORT – non-agency payment – whether payment was prescribed payment for payee’s share of amount payable for utilities – 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. This review concerns the issue of whether all or part of an amount is to be credited as a non-agency payment or “prescribed non-agency payment” (PNAP) against Mr Tebbutt’s child support liability.

2. There is an active case for child support which has been registered with Services Australia (Child Support) since 27 May 2022. The care recorded for the child is that he is in Mr Tebbutt’s 0% care and Ms Benstock’s 100% care.

3. Mr Tebbutt advised Child Support that he made the following third-party payments which he says ought to be credited. All payments refer to a telecommunications bill issued in his name:

$	Date paid	Date lodged with Child Support	Original decision date Child Support	Original decision
137	5 July 2022	6 July 2022	22 August 2022	Credit allowed
137	28 August 2022	28 August 2022	30 September 2022	Credit allowed
274 (2 x 137)	22 October 2022 26 November 2022	22 October 2022 26 November 2022	9 December 2022	Credit allowed

1. Ms Benstock objected to all the decisions. In each case Child Support allowed the objections which meant that the amounts were not credited.

2. Mr Tebbutt lodged his applications for review on 4 April 2023.

3. Mr Tebbutt participated in a hearing conducted by telephone on 23 August 2023. He presented oral evidence and made submissions. Other evidence included the Child Support statement and documents relevant to the case. Attempts to contact Ms Benstock at the time of hearing were unsuccessful, she did not answer the phone. The tribunal was satisfied that Ms Benstock had been informed of the time and date of hearing and decided to proceed without taking her oral evidence.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (the Act) and the Child Support (Registration and Collection) Regulations 2018 (the Regulations).

2. Child support legislation is interpreted by Child Support 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, may have regard to it.[1]

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

3. The issue which arises in this case is whether payments made by Mr Tebbutt are to be credited against his child support liability.

CONSIDERATION OF LEGISLATION, SUBMISSIONS AND EVIDENCE

Legislation

1. Provisions of the Act provide that certain payments made by a payer can be credited against their child support liability. The requirements for such payments include that the payer and payee mutually intended that when the payment was made it was to be a payment in lieu of child support.[2]

   [2] Section 71A of the Act deals with payments to a third party.

2. Section 71C of the Act and regulation 19 of the Regulations allow Child Support to credit up to 30% of certain payments towards a payer’s child support liability regardless of the intention of the parents at the time the payment was made (that is, regardless of whether or not the payments were intended to be in lieu of child support), except if, at the time the payment was made, the payer had at least regular care of any of the children to whom the relevant administrative assessment relates and at the time the Registrar applies this section, the payer does not have at least regular care. Child Support refers to these payments as PNAPs. Such payments must be of the types specified under the Regulations.

3. The Child Support Registrar (and on review, the tribunal) may refuse to credit amounts under section 71A or 71C of the Act if satisfied that, in the circumstances of the particular case, the amounts ought not to be credited (section 71D of the Act).

Submissions and evidence

1. Mr Tebbutt submitted that the amounts he has paid should be credited because he is paying Ms Benstock’s phone service plan. He said that when he and Ms Benstock were in a relationship, he included Ms Benstock’s mobile phone plan onto his account and that he made the payments during their relationship.

2. Post separation, he requested Ms Benstock take over the plan, but she did not engage with any of his correspondence. He suspended the service in about September 2022, but he is still having to pay for the handset. Mr Tebbutt also stated that the phone was the only means he had of contacting Ms Benstock and in turn have contact with his child.

3. According to the Child Support file, Ms Benstock in her objection stated that she never agreed to those amounts being credited towards the child support liability. Mr Tebbutt cancelled the service, and she does not have use of either the phone service or the handset.

4. Documents before the tribunal included copies of the telephone bills which are in Mr Tebbutt’s sole name.

5. The tribunal is satisfied and finds that there was no mutual intention that the payments were to be in lieu of child support. This means that section 71A of the Act has no application.

6. The tribunal next considered whether there was any basis for the payments to be considered PNAPs pursuant to section 71C of the Act. The Regulations prescribe that specified payments may be credited.

7. The types of payments are set out in regulation 19:

   (a)   child care costs for the child who is the subject of the enforceable maintenance liability;

   (b)   fees charged by a school or preschool for that child;

   (c)   amounts payable for uniforms and books required by a school or preschool for that child;

   (d)   fees for essential medical and dental services for that child;

   (e)   the payee’s share of amounts payable for rent or a security bond for the payee’s home;

   (f)    the payee’s share of amounts payable for utilities, rates or body corporate charges for the payee’s home;

   (g)   the payee’s share of repayments on a loan that financed the payee’s home;

   (h)   costs to the payee of obtaining and running a motor vehicle, including repairs and standing costs.

8. In this case the type of payment is a personal telephone plan which is in Mr Tebbutt’s name. Mr Tebbutt said it is only fair that the amount be credited because Ms Benstock refused to take over the plan. He submitted that the payment comes within paragraph 19(f).

9. According to the regulations that type of payment relates to the payee’s share of amounts payment for a utility that is specific for the payee’s home. The Guide, in this regard, suggests that “payments for utilities include gas, electricity, water and telephone, including the home phone portion of any phone / internet / mobile package.”[3]

   [3] The Guide at 5.3.1. The tribunal is not bound to apply Departmental guidelines but may have regard to such matters where consistent with legislation.

10. On the available evidence the tribunal is not satisfied that the payments made by Mr Tebbutt in relation to the telephone plan come within the definition of paragraph 19(f). The payments he has made were for a personal phone service for an account that is in his sole name, for which he says Ms Benstock utilised until he suspended the service. The tribunal is not satisfied that this constitutes Ms Benstock’s share of amounts payable for a home phone portion of a phone package.

11. The tribunal concludes that as the payments are not prescribed in the Regulations they cannot be credited as PNAPs.

DECISION

The decisions under review are affirmed.