Upston and Kresser (Child support)

[2022] AATA 3516

Upston and Kresser (Child support) [2022] AATA 3516 (31 August 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2022/MC024136

2022/MC024149

2022/MC024150

2022/MC024151

APPLICANT:  Mr Upston

OTHER PARTIES:  Child Support Registrar

Ms Kresser

TRIBUNAL:  Senior Member K Dordevic      

DECISION DATE:  31 August 2022

CATCHWORDS

CHILD SUPPORT – dismissal of application for review - particulars of the administrative assessment – non-agency payements - no reasonable prospect of success - application for review dismissed

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.

DISMISSAL OF ALL APPLICATIONS FOR REVIEW:

1. The Tribunal is satisfied that the applications for review have no reasonable prospect of success and dismisses the application for review pursuant to subsection 42B(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act).

2. The reasons for this decision are set out in the following paragraphs.

3. On 22 and 24 June 2022 Mr Upston lodged applications for review with the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) in relation to decisions made on 30 May 2022 by an objections officer of Services Australia – Child Support (the Agency).

4. The objections officer disallowed Mr Upston’s objection to a decision to refuse to credit the following non-agency payments totalling:

   ·      $11,270 during the period 5 November 2016 to 7 October 2017;

   ·      $11,270 during the period 14 October 2017 to 15 September 2018

   ·      $11,270 during the period 22 September 2018 to 24 August 2019; and

   ·      $11,040 during the period 30 August 2019 to 24 September 2020.

5. The statutory scheme outlined in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration & Collection) Act 1989 (the Act) provides some flexibility for parents as to the method by which child support payments can be made.

6. Section 71A of the Act allows the Agency to credit a payment made to a third party on behalf of the payee of an “enforceable maintenance liability” in lieu of a payer’s child support liability in certain circumstances. Such payments are known as non-agency payments.

7. The term “enforceable maintenance liability” is defined by section 4 of the Act to mean “a registered maintenance liability that is enforceable under this Act”. Section 30 of the Act stated that when a registrable maintenance liability is registered, it means that the amounts payable under the child support assessment are debts due to the Commonwealth by the payer.

8. It is not in dispute that whilst the case was notified to the Agency on 7 May 2017, it was only enforceable maintenance liability from 16 September 2021, when it was registered for collection by the Agency.

9. On 29 July 2022 the Tribunal’s Early Case Assessment Registrar contacted Mr Upston by telephone to discuss his application. It was explained to him that as the payments made prior to 16 September 2021 the legislation does not permit them to be credited as non-agency payments.  An email to that effect was sent to Mr Upston on the same day, where it was explained to him that if he believes that the payments were made to be credited against the assessment from 16 September 2020 he may wish to consider lodging a change of assessment application with the Agency. A link to the Child Support Guide regarding the ground on which he could rely on in that application was provided to him.

10. On 9 August 2022 the Tribunal wrote to Mr Upston. The letter, in part, stated:

    As discussed at your Early Case Assessment Conference, the Tribunal is considering whether to dismiss your application under section 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 on the basis that the application has no reasonable prospect of success.

    You have 21 days from the date of this letter to give us any evidence or written submission that you wish to have considered before that decision is considered.

11. Mr Upston provided a response lengthy submission in response on 29 August 2022, attaching various court documents and invoices relating to his legal fees.

12. In view of there being no submission or evidence received from Mr Upston to contradict the findings made by the Agency in regards to the date the registrable maintenance liability became enforceable the Tribunal is satisfied that the application for review has no reasonable prospect of success and so dismisses the application pursuant to subsection 42B(1) of the AAT Act.