Vincent and Copeland (Child support)

[2019] AATA 3840

Vincent and Copeland (Child support) [2019] AATA 3840 (4 July 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/AC016419

APPLICANT:  Mr Vincent

OTHER PARTIES:  Child Support Registrar

Ms Copeland

TRIBUNAL:Member Y Webb

DECISION DATE:  04 July 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – opt-in arrears – whether there were unpaid amounts in the specified period – application for collection of unpaid amounts 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 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 the extent of arrears payable (if any) by Mr Vincent as the liable parent.

2. Mr Vincent and Ms Copeland are the parents of one child now aged five (“the child”).

3. The parents separated in or about March 2013 and the child was born [in] 2013.

4. Initially the parents elected not to have the Department of Human Services (Child Support Agency) collect child support in relation to the child.   In other words, the parents had a “private collect” arrangement regarding child support.

5. On 26 October 2018, Ms Copeland contacted the Child Support Agency to request collection of child support by the Agency.  She also requested collection by the Agency of alleged unpaid amounts of child support totalling $106.71 for the three month period 26 July 2018 to 25 October 2018.  It is not disputed that the care of the child is 100% to Ms Copeland and 0% to Mr Vincent.

6. On 4 December 2018 the Child Support Agency decided that no payments had been made by Mr Vincent to Ms Copeland in the period between 26 July 2018 and 25 October 2018 (the arrears period).  It made a decision to accept Ms Copeland’s application for collection and her request for arrears as claimed.

7. On 20 December 2018 Mr Vincent objected to that decision.  He contended that he had given Ms Copeland a car which he said was worth $6,000 and which was in lieu of child support.  He contended that the agreement with Ms Copeland was that the assessed amounts per year of child support would be deducted from the $6,000 until the $6,000 was exhausted after which he and Ms Copeland would make a new agreement.  He submitted that the $6,000 had not yet been exhausted.  He calculated that there had been four annual assessments of child support since the child’s birth and that the amounts of $399, $408, $414 and $420 should be deducted from the $6,000 and therefore that the balance remaining to cover future child support payments was $3,932.

8. Ms Copeland responded that when they were together Mr Vincent purchased a second hand car for $600; not $6,000.  She said that the car was purchased before the child was born.  She said that when they split up Mr Vincent told her that she could keep the car.  She stated that she has never changed the ownership of the car into her name.  She denied that she had agreed that she would accept the car instead of receiving child support.

9. On 13 April 2019 an objections officer disallowed Mr Vincent’s objection.

10. On 29 April 2019 Mr Vincent requested review by the Administrative Appeals Tribunal (“the Tribunal”).

11. He attended the hearing in person on 4 July 2019 and gave sworn evidence.

12. At the hearing Mr Vincent provided documents additional to those included in the Child Support Agency papers.  The additional documents were marked Exhibits A1 to A10.

13. Ms Copeland could not be reached on the date and time of the hearing. The Tribunal was satisfied that she had been advised in writing and via text message of the hearing date and time. In accordance with subsection 40(1) of the Administrative Appeals Tribunal Act 1975 the Tribunal proceeded to hear the review in her absence.

ISSUES

1. The issue which must be decided in this case is the amount of child support arrears, if any, Mr Vincent is liable to pay.

CONSIDERATION

1. A payee can initially elect not to have a liability which arises from a child support assessment enforceable by the Child Support Agency under subsection 24A(2) of the Child Support (Registration and Collection) Act 1988 (the Act).  In other words, the child support is collected privately.

2. Section 25 of the Act states that if a payee who made an election under subsection 24A(2) applies at a later time to have the liability enforced by the Child Support Agency then the application must be accepted.

3. The Tribunal finds that Ms Copeland applied for the liability to become enforceable by the Child Support Agency on 26 October 2018.

4. If an application is made under section 25 of the Act, the payee may also apply for any unpaid amounts to be treated as arrears amounts and collected by the Child Support Agency (subsection 28A(3)).  If the specified period does not exceed three months, the Child Support Agency must grant the payee’s application (subsection 28A(4)) provided the child support liability remains unpaid.

5. The Tribunal finds that Ms Copeland applied for arrears of three months to be collected.  Her application must, therefore, be granted. 

6. The Child Support Agency determined that the amount of the arrears liability was $106.71 and it is this amount Mr Vincent disputes.

Mr Vincent’s evidence and contentions

1. Mr Vincent told the Tribunal that he and Ms Copeland were in a relationship and living together.  He was unsure of the precise dates but he confirmed that they rented a property together (with a 12 month lease) in a southern suburb but that Ms Copeland left and returned to live with her mother after about three months.  He stayed on in the property for approximately six more months and then he returned to [Town 1] (where his family lived).  At the time that he moved out of the property and prior to returning to [Town 1] he gave a car to Ms Copeland.  He had purchased the car for $3,250 on 26 October 2012 and had restored it.  He estimated that with the improvements he had made to the car, it was worth $6,000.  He provided bank transactions showing various amounts paid to [a repairer] and to [a supplier] and a debit bank transaction dated 26 October 2012 of $3,250 to [a car dealer].

2. Mr Vincent said that he cannot remember exactly the date that he gave the car to Ms Copeland but it was sometime in 2013. He stated that the understanding he had with Ms Copeland (who was pregnant at the time with their child) was that she would obtain her driver’s licence and then she would have a car and it would make it easier for her to make sure that Mr Vincent saw his child.  However, Mr Vincent stated that Ms Copeland never obtained a driver’s licence and never transferred the car registration into her name and now Mr Vincent does not know where the car is.  He has discovered that it is neither registered in his name nor Ms Copeland’s.  He now does not know where the car is, who owns it or what Ms Copeland has done with it.

3. Mr Vincent stated that he and Ms Copeland had a discussion in 2013 and he said that he had told her that the car was “pretty much for child support”.  He stated that Ms Copeland said that was fine.  He said that when the child support case commenced in 2014 he spoke to Child Support and told them that he and Ms Copeland had a private arrangement; that he had given her a $6,000 car to cover child support and that both parents had agreed on this arrangement.  Mr Vincent stated that he was under the impression from his discussion with the Child Support Agency in 2014 that the case was registered for collection in 2014.  He did not realise that the case wasn’t registered for collection until 26 October 2018.

4. Mr Vincent provided a statutory declaration dated 20 November 2018 in which he declared that “…a private agreement between [Ms Copeland] and myself was made privately for child support payments until the full $6,000 is paid in full by the assessed amounts by Child Support on a yearly basis.”

5. Mr Vincent spoke with a Child Support Agency officer on 10 January 2019 and the officer recorded that Mr Vincent stated that: “When the case was registered [Ms Copeland] and I had an agreement that I purchase a car for [her] to the value of $6,000 and this would be in lieu of child support.  The annual child support rate each year was to be deducted from the $6,000.  As Child Support were not collecting for the last 4 years the annual amount of child support for each year has been deducted from the $6,000.  When [Ms Copeland] made this case collectable on 26 October with arrears there are four assessments to the value of $399, $408, $414, $420 and this year $427 = $2,068 from $6,000 leaving a balance of $3,932 to ongoing yearly deductions as assessed on the annual rate of child support.”

6. Mr Vincent, in his application for non-agency payments to be credited (a copy of his application being included within the Child Support Agency papers)  stated that he anticipated that the minimum yearly rate of child support – approximately $400 per year – would be deducted from the $6,000 figure “unless my circumstances or income changes.”

7. In summary, Mr Vincent contended that he had given the car to Ms Copeland in good faith.  He had spent money on the secondhand vehicle to the extent that it was worth $6,000 when he gave it to Ms Copeland.  It was intended by both parties to be in lieu of future child support.

Ms Copeland’s evidence and contentions

1. Ms Copeland did not attend the hearing but when she was contacted by the Child Support Agency on 26 October 2018 the officer recorded that Ms Copeland stated that “[Mr Vincent] had purchased a $6,000 car for her at the time of (the child’s) birth.  She agreed to this being child support at the time.  She couldn’t specify what period this was intended for.  She has not received any other payments from [him].”

2. She requested three months of arrears from 26 July 2018.

3. In response to Mr Vincent’s objection to the decision to accept the application for collection and grant arrears of $106.71 Ms Copeland spoke with a Child Support officer on 3 January 2019.  The officer recorded that Ms Copeland stated that: “When [Mr Vincent] and I were still together he purchased a car second hand for $600 not $6,000.  The car was purchased about 6 years ago.  When we split up he said I could keep the car. I have not changed the car into my name.  The car was purchased prior to (the child) and in no way was it for child support”.

The Tribunal’s consideration

1. There is no dispute between the parents that Mr Vincent gave a car to Ms Copeland in 2013.  There is some dispute about the value of the car.  The Tribunal accepts that Mr Vincent bought the car on 26 October 2012 from [the car dealer] for $3,250 (as evidenced by his bank transaction)[1].  It accepts that it was a [specified] car.  The Tribunal accepts that Mr Vincent made various improvements to the car but the evidence is insufficient to prove that all of the bank transactions relating to [the repairer] related to the improvements on this particular car as Mr Vincent told the Tribunal at the hearing that he had another car as well as the [specified] car.  While Mr Vincent valued the improved value of the car as $6,000 at the time that he gave the car to Ms Copeland in 2013, the Tribunal finds that the evidence is insufficient to confirm the value of the car as $6,000.  Ms Copeland initially appeared to agree that the car was worth $6,000 but later, in her discussions with the Child Support Agency, she disputed the value of the car and claimed that Mr Vincent bought the car for $600.  The Tribunal finds that Mr Vincent gave Ms Copeland a car in 2013 but that the value of that car is not ascertainable.

   [1] Exhibit A4

2. Neither Mr Vincent nor Ms Copeland disputed that there was no written agreement about Mr Vincent’s contention that the gift of the car was intended to be in lieu of future child support.  Mr Vincent was adamant that it was given in lieu of child support and that the annual assessment of child support payable would be deducted from $6,000 until the $6,000 was exhausted. This is contradicted somewhat by a telephone call he made to the Child Support Agency on 6 November 2015 in which he expressed concerns that “nothing has come out of his Centrelink payment and (he) is concerned that there is a debt with the case that he has with [Ms Copeland] that may be building up.”  This tends to suggest that Mr Vincent, despite giving a car to Ms Copeland on his understanding that it was in lieu of child support payments – may have expected that deductions may also be made from his Centrelink income support payments.

3. Ms Copeland initially stated that at the time she was given the car she agreed it was for child support “at the time” but later she stated that “in no way was it for child support”.

4. In circumstances where there is no clear agreement between parents about certain payments being made in lieu of child support and the parents disagree, the Child Support Guide at 5.1.4 offers some guidance in considering the procedure for determining child support amounts which are unpaid during an arrears period and concludes:

   If the parents do not agree and the Registrar cannot be satisfied based on the information and evidence available that payment was made for some or all of the arrears period being claimed, the arrears claim will be accepted.

5. The Tribunal is not satisfied that there was mutual agreement that the car was in lieu of child support payments in the manner that Mr Vincent has contended.  The Tribunal finds it is unlikely that Ms Copeland would have agreed that the annual assessment would be deducted from an amount of $6,000 until exhausted.  Mr Vincent suggested that the annual amount payable in child support would most likely be the minimum rate and that this would be deducted from the $6,000 until it was all used.  However, on that basis the child would be around 14 years old before the $6,000 was exhausted.  The Tribunal considers it most unlikely that Ms Copeland would have agreed to that arrangement.

6. While Mr Vincent stated that he anticipated the arrangement would continue “unless his circumstances or income changes” the arrangements as envisioned by Mr Vincent do not take into account the possibility that Ms Copeland’s circumstances may change.  It also does not take into account what the arrangements would be if the car was written off, had a major breakdown or was no longer of any value to Ms Copeland.  The Tribunal finds that there is uncertainty about the duration of any agreement even if Ms Copeland had originally agreed to the car being in lieu of child support for a limited time at the time that the car was given to her. 

7. In summary, the Tribunal finds that the evidence is insufficient to prove that the car which Mr Vincent gave to Ms Copeland in 2013 was mutually intended to be in lieu of future child support payments.  The car was purchased during a private collect period prior to the commencement of the child support assessment.

8. Hence, the Tribunal concludes that Ms Copeland is entitled to opt-in arrears of $106.71 in outstanding amounts for the three-month period from 26 July 2018 to 25 October 2018.

DECISION

The decision under review is affirmed.