Timmins and Mayhall (Child support)

[2023] AATA 420

Timmins and Mayhall (Child support) [2023] AATA 420 (3 February 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/AC024717

APPLICANT:  Ms Timmins

OTHER PARTIES:  Child Support Registrar

Mr Mayhall

TRIBUNAL:Member P Jensen

DECISION DATE:  3 February 2023

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – non-agency payment - payment correctly credited - 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

1. Ms Timmins and Mr Mayhall are the parents of [Child 1] and [Child 2]. A child support case was registered with the Child Support Agency (“the CSA”) in December 2020. At all relevant times, Mr Mayhall has been recorded as providing 0% care. He does not provide any overnight care but he provides one six-hour block of care each Saturday.

2. The child support that is payable by Mr Mayhall is a liability that he owes to the CSA. The liability is usually discharged via direct payments to the CSA but the Child Support (Registration and Collection) Act 1988 (“the Act”) allows for payments to third parties to be credited in certain circumstances. On 8 June 2022, Mr Mayhall applied to have a payment of $144.00 on 5 February 2022 and a payment of $267.50 on 4 June 2022 credited pursuant to section 71C of the Act. The section contains a number of requirements but the only requirement in dispute is whether the payments were for “fees for essential medical and dental services for [the] child”: paragraphs 71C(1)(b) of the Act and 19(d) of the Child Support (Registration and Collection) Regulations 2018. The CSA decided to not credit the payments. Mr Mayhall objected to that decision. An objections officer allowed the objection and decided to credit the payments. Ms Timmins applied to the Tribunal for further review. I heard the matter on 3 February 2023. Ms Timmins and Mr Mayhall gave sworn evidence by conference phone.

3. [Child 2] requires prescription glasses. Put simply, he has “one good eye and one bad eye”, and the condition of the eye that requires medical attention has fluctuated significantly. At one point, he was assessed as being legally blind in that eye.

4. Mr Mayhall said he purchased prescription sunglasses for [Child 2] on 5 February 2022 and the out-of-pocket cost was $144.00. He said he purchased prescription non-tinted glasses (i.e. “ordinary” prescription glasses) for [Child 2] on 4 June 2022 and the out-of-pocket cost was $267.50. Mr Mayhall provided receipts for both purchases. Both receipts include [Child 2]’s name. At the hearing, Ms Timmins said she had not seen either pair of glasses. She was unable to take the matter further. I accept Mr Mayhall’s evidence that he purchased the prescription glasses for [Child 2].

5. The CSA concluded that the term “medical services” extends to optometry services,[1] and I agree. The payments were for essential medical services for the child. The requirements of section 71C of the Act are satisfied and the two payments must be credited pursuant to that section, subject to section 71D of the Act. Section 71D relevantly provides that a 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 be credited.” Most of the hearing concerned the discretion in section 71D.

   [1]See 5.3.1 of the Child Support Guide.

6. Ms Timmins said that since late 2020, there had been one or two occasions when [Child 2] had gone to Mr Mayhall’s without his glasses. Mr Mayhall stated in June 2022: “It is not infrequent for [Child 2] to be presented to me without his glasses, and he has never been presented to me with his sunglasses.” [Child 2] suffers from autism and intermittent explosive disorder. Ms Timmins said that when [Child 2] gets angry he will hide or try to break his glasses. She said she has a drawer full of [Child 2]’s broken glasses. She said [Child 2] does not wear sunglasses because he does not like looking through tinted glasses. Mr Mayhall said, and Ms Timmins did not dispute, that the sunglasses that Ms Timmins provided for [Child 2] were not prescription sunglasses. Mr Mayhall believed that [Child 2] might be more willing to wear sunglasses if they were fitted with prescription lenses. Ms Timmins stated that [Child 2] has not been specifically prescribed sunglasses. Mr Mayhall said his time with the children can include outdoor activities. Ms Timmins agreed that, as a general proposition, sunglasses are recommended for people when they are outdoors in strong sunlight.

7. There is no dispute that [Child 2] has significant eye problems. There is no dispute that he will hide or attempt to break his glasses. Ms Timmins has observed that [Child 2] does not like wearing non-prescription sunglasses because he does not like looking through tinted glasses. In my opinion, it was not unreasonable for Mr Mayhall to believe that [Child 2] might be more inclined to wear sunglasses if they were fitted with prescription lenses. As noted earlier, there is no dispute that sunglasses are generally recommended for people when they are outdoors in strong sunlight. I am not persuaded that the payment of $144.00 ought not be credited.

8. On 4 February 2022, Ms Timmins sent an email to Mr Mayhall which included the following: “[Child 1] and [Child 2] both had eye tests in late June 2021. [Child 2]’s were checked again in October 2021. Neither are due for new tests until June 2022 at the earliest.”

9. Mr Mayhall said that when he purchased prescription sunglasses for [Child 2] in February 2022, the optometrist checked [Child 2]’s eyesight and confirmed that the existing prescription was still the appropriate prescription.

10. On 28 March 2022, Mr Mayhall sent an email to Ms Timmins which included the following: “Please ensure that the children bring their glasses and sunglasses. As [Child 1] does not require his glasses all of the time, please send them in their case.” Ms Timmins’s reply included the following: “If you are concerned that their glasses may be forgotten on occasion, then you might want to consider purchasing spare pairs.”

11. On 4 June 2022, Mr Mayhall purchased prescription glasses for [Child 2]. On 1 July 2022, [Child 2] had his scheduled review and was given an updated prescription which was different to his previous prescription. Ms Timmins submitted that Mr Mayhall knew [Child 2]’s eyesight was about to be reviewed and he should have waited until after that review before buying new glasses. She also said that Mr Mayhall bought cheaper frames which are more likely to break, whereas she buys more expensive frames which are more durable. Mr Mayhall said the prescription that he used was appropriate in February 2022 and it was reasonable to assume that it would still be appropriate in June 2022.

12. If [Child 2] occasionally hides or tries to break the prescription glasses that he takes with him to Mr Mayhall’s, and there has been at least one occasion when [Child 2] has arrived at Mr Mayhall’s without his glasses, it seems reasonable for Mr Mayhall to have a spare set of prescription glasses at his home. Ms Timmins’s suggestion that Mr Mayhall might want to consider purchasing spare pairs of glasses lends some support to the view. It was not unreasonable for Mr Mayhall to purchase less expensive frames given that they were only intended to be a spare set and [Child 2] is only in Mr Mayhall’s care once per week. The evidence suggests that [Child 2]’s eyes are tested regularly. Ms Timmins makes the point that when Mr Mayhall bought the glasses, [Child 2]’s next eye test was due the following month. Mr Mayhall makes the point that when he bought the glasses, [Child 2]’s eyes had been tested four months previously and Mr Mayhall had not expected a significant change during those four months. I note Ms Timmins’s comment in an email dated 9 July 2022: “His new [glasses] are ordered but have not yet arrived. The doctor said he can continue to wear old glasses until new glasses arrive.” That evidence suggests that the glasses that Mr Mayhall bought in June 2022 could still function as an adequate spare set of glasses notwithstanding the new assessment in July 2022. I am not persuaded that the payment of $267.50 ought not be credited.

DECISION

The decision under review is affirmed.