Tindall and McAllister (Child support)

[2019] AATA 5505

Tindall and McAllister (Child support) [2019] AATA 5505 (12 November 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/AC017334

APPLICANT:  Mr Tindall

OTHER PARTIES:  Child Support Registrar

Ms McAllister

TRIBUNAL:Member Y Webb

DECISION DATE:  12 November 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – non-agency payment – whether payments are prescribed payments – 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 review is about whether payments made by Mr Tindall should be accepted and credited as prescribed non-agency payments (PNAPs) against Mr Tindall’s child support liability.

2. This review relates to the two children (the children) of Mr Tindall and Ms McAllister.  The children are aged 17 and almost 15 years old.

3. The child support case was registered in 2007 and has been collectable by the Department of Human Services (Child Support Agency) since 2 October 2015.

4. On 3 June 2019 Mr Tindall contacted the Child Support Agency to request that purchases (pre/school fees) of $2,783.90 for the children be credited against his child support liability.  On 4 June 2019 Mr Tindall contacted the Child Support Agency to request that a payment of $465 (child care costs) also be credited. The details of the requested PNAPs (as described in the receipts provided) were:

Description	Amount
2 computers needed for school (purchased on 11/6/2017)	$2,783.90
Sports fees and sports clothing (paid on 5/2/2019)	$465

1. On 25 June 2019 a delegate of the Registrar decided that the payments would be refused on the basis that the payments were being assessed as PNAPS and were determined not to be valid. 

2. On 18 July 2019 Mr Tindall objected to that decision on the basis that the payments were agreed to by Ms McAllister and the cost was above the normal monthly child support payment.

3. On 3 September 2019 an objections officer of the Child Support Agency disallowed Mr Tindall’s objection on the basis that Mr Tindall has had 21% care of the children since 29 November 2015 and therefore the payments cannot be considered as PNAPs.

4. On 5 September 2019, Mr Tindall requested a review by the Administrative Appeals Tribunal (the Tribunal).

5. Both parents attended the hearing on 12 November 2019 by way of a telephone conference and both gave evidence on affirmation.

6. The Tribunal received a bundle of relevant papers from the Child Support Agency and these were marked as Exhibit C1.

CONSIDERATION

1. The legislation relevant to this decision is contained in the Child Support (Registration and Collection) Act 1988 (the Act).

2. When the Child Support Agency registers a child support liability for collection, the amounts payable become a debt to the Commonwealth and are payable to the Child Support Registrar pursuant to section 30 of the Act.In some circumstances the Child Support Agency may credit payments made directly to a payee or to a third party against a child support liability that is registered for collection by the Child Support Agency if they were intended as child support.  The Child Support Agency may also credit the value of non-cash payments or the provision of services in the same way.  These credits are referred to as NAPs and the relevant provisions are found in sections 71, 71AA, 71A, 71B, 71C and 71D of the Act.

3. In this case it appears that Mr Tindall made a claim for PNAPs rather than ordinary NAPs.  Certainly, regardless of whether Mr Tindall specifically only claimed the payments as PNAPs or ordinary NAPs, the Child Support Agency only determined whether the payments made by Mr Tindall were PNAPs.  There is no evidence within the C1 papers that the Child Support Agency had considered and determined whether the payments were valid NAPs (under section 71A of the Act).

4. Certainly, the objections officer only considered whether the payments qualified as PNAPs.

5. Because the payments have only been assessed by the Child Support Agency to determine whether they qualified as PNAPs, the Tribunal only has jurisdiction to likewise consider whether the payments should be credited as valid PNAPs.  The Tribunal notes that the objections officer stated that “these non-agency payments will be considered separately under section 71A of the (Act) and are not part of this review”.  This statement suggests that the Child Support Agency is separately considering whether the payments qualify as ordinary NAPs.

6. In relation to whether the payments/purchases made by Mr Tindall qualify as PNAPs,  section 71C of the Act provides that payments made by a parent for purposes specified in the Child Support (Registration and Collection) Regulations 2018 (the Regulations) can be credited against the child support liability.  This can occur regardless of the consent of the other parent.  An amount of up to 30% of the total child support liability can be credited until the total amount to be credited has been exhausted. 

7. Subsection 71C(1) details the prerequisites for crediting this type of payment.  The prerequisites are summarised as follows:

   ·      There is an enforceable maintenance liability;

   ·      There has been a payment to the payee or another person;

   ·      The payment is a kind specified in the Regulations;

   ·      The payments have not previously been credited against the child support liability; and

   ·      The payer does not have at least regular care of any of the children to whom the relevant administrative assessment relates either at the time the payments were made or the time the Registrar applies this section.

8. One of the prerequisites specified in section 71C is that the payment must be of a kind specified in the Regulations.  Regulation 19 of the Regulations specifies the types of payments that can be credited under section 71C. They are:

   Specified payments

   For the purposes of paragraph 71C(1)(b) of the Act, payments of the following kinds in relation to an enforceable maintenance liability are specified:

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

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

   (c)amounts payable for uniforms and books required by a school or pre‑school 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.

9. However, the Tribunal does not need to consider whether the payments made by Mr Tindall fall within the “specified payments” detailed above because to qualify as a PNAP the payer must have less than regular care of the children either at the time the payments were made or the time the Registrar applies this section.

10. In Mr Tindall’s case, he confirmed that at the time that the payments were made he had 21% care of the children and the Child Support Agency records also confirm that he has had 21% care of the children (which is regular care) since 29 November 2015.

11. Hence, Mr Tindall does not have less than regular care of the children and therefore the payments do not qualify and cannot be credited as PNAPs.

12. Therefore, the Tribunal concludes that it agrees with the objections officer’s decision.

DECISION

The decision under review is affirmed.