Voaden and Marriott (Child support)

[2022] AATA 1712

Voaden and Marriott (Child support) [2022] AATA 1712 (1 April 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/BC022855

APPLICANT:  Ms Voaden

OTHER PARTIES:  Child Support Registrar

Mr Marriott

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  1 April 2022

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the payment of $304.50 for a school resource fee for the child [Child 1] made on 25 August 2021 should be credited under section 71A of the Child Support (Registration and Collection) Act 1988 against Ms Voaden’s child support liability.

CATCHWORDS

CHILD SUPPORT – non-agency payment – whether payment made to a third party in lieu of child support – intention of both parents – decision under review set aside and substituted

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. Ms Voaden and Mr Marriott are the parents of [Child 1] (born October 2005) and [Child 2] (born April 2010).  There has been a child support assessment in place since 12 November 2019 with collection by the Child Support Agency from the same date.  Ms Voaden is the parent liable to pay child support under the assessment.

2. The child support assessment reflected that from 2 July 2021 Ms Voaden had 0 per cent care and from 11 August 2021 Mr Marriott has 100 per cent care of [Child 1].  The child support assessment reflected that from 1 February 2019 Ms Voaden has 50 per cent care and Mr Marriott has 50 per cent care of [Child 2].

3. On 25 August 2021 Ms Voaden applied to the Child Support Agency for one payment made on 25 August 2021 of $304.50 for a school resource fee as a non-agency payment.

4. On 13 September 2021 the Child Support Agency made the decision to refuse to credit the payment made on 25 August 2021 for a school resource fee as a non-agency payment.

5. On 29 September 2021 Ms Voaden objected to this decision and on 11 November 2021 the Child Support Agency disallowed the objection (the objection decision).

6. On 2 December 2021 Ms Voaden applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

7. The Tribunal conducted a hearing into the application on 24 February 2022.  Ms Voaden and Mr Marriott gave evidence on affirmation by conference telephone.  The Child Support Agency provided the Tribunal and the parties with papers relevant to the two reviews (123 pages).

8. Following the hearing the Tribunal sought further potentially relevant information from the Child Support Agency under subsection 37(2) of the Administrative Appeals Tribunal Act 1975.  This was received on 8 March 2022 and a copy was distributed to the parties (pages 124-130).

ISSUES

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

2. When a child support liability is registered under the Act for collection, the amount payable is a debt due to the Commonwealth and must be paid to the Child Support Agency, not the payee.

3. 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 (sections 71, 71A or 71C of the Act).  The Child Support Agency refers to the credits under sections 71 and 71A as ‘non-agency payments’.  Credits under section 71C are known as ‘prescribed non-agency payments’ as this section applies to payments of the kind specified in section 19 of the Child Support (Registration and Collection) Regulations 2018 (the Regulations).

4. Section 71C of the Act provides a mechanism whereby payments made by a liable parent to the payee or to another person for items specified in the Regulations may be taken into account in partial satisfaction of the liable parent’s child support liability. A number of specific criteria must be satisfied for this provision to apply. Even where all the criteria are met, there is still a discretion in section 71D of the Act to refuse to credit amounts that would otherwise be able to be credited against the liability.

5. The issue which arises in this case is whether or not the payments made by Ms Voaden can be accepted as a non-agency payment and credited against her child support liability.

CONSIDERATION

1. Ms Voaden told the Tribunal the children were attending [College 1] and she was paying the full amount of fees for both children.  Ms Voaden said in a change of assessment decision made on 15 July 2021 her annual rate of child support was reduced in recognition of the contribution she was making towards the school fees for [Child 1] and [Child 2].

2. Ms Voaden explained that the change of assessment decision only took into account the costs she was meeting for tuition fees and the school building levy but not the resource fee.  Ms Voaden said it was the resource fee she was now claiming as a non-agency payment.

3. Ms Voaden told the Tribunal the school resource fee was for items such items as books, stationery, text books and excursions.  Ms Voaden said the resource fee for [Child 1] was $304.50 per term and she was only claiming this amount as [Child 1] was in the 100 per cent care of his father and receiving child support from her on that basis.  Ms Voaden pointed out that she was not claiming the resource fee for [Child 2] as he was in the shared care of the parents and she was prepared to meet that expense in full herself.

4. Ms Voaden said in the past there had been no formal arrangement between the parents for the payment of school costs.  Ms Voaden said Mr Marriott had simply told her that she should pay the full amount and then he would agree to any claim made through the child support system.  Ms Voaden pointed out that she had provided evidence to the Child Support Agency to confirm she was paying the resource fee for [Child 1] but the Child Support Agency had refused to accept her application for this to be considered as a non-agency payment.

5. The Tribunal notes in evidence from the Child Support Agency a statement from [College 1] dated 8 July 2021.  The statement includes tuition fees and resource fees for both children for Term 3.  The resource fee for [Child 1] is $304.50. A further statement dated 23 September 2021 shows payment of $304.50 on 25 August 2021.

6. Mr Marriott told the Tribunal he agreed the children were attending [College 1] and Ms Voaden was meeting the costs.  Mr Marriott said this had been addressed in the change of assessment decision and acknowledged the resource fee had not been taken into account.

7. Mr Marriott explained he had initially been reluctant to agree to the resource fee for [Child 1] being considered in lieu of child support as the Child Support Agency had informed him there was no evidence of the payment actually being made.  Mr Marriott said, in light of the statement from [College 1], he took no issue with the resource fee being accepted in lieu of child support.  Mr Marriott said the Child Support Agency had told him, however, that only his half of this cost should be credited as a non-agency payment.

8. The Tribunal notes in evidence from the Child Support Agency that during a conversation between Mr Marriott and a child support officer on 13 September 2021 Mr Marriott was advised:

   the DM of the COA process stated she [Ms Voaden] cannot lodge NAPs for school fess [sic] however she can lodge 50% of the costs for ‘school resource payments’ if she can provide evidence. 

   The further information received from the Child Support Agency on 8 March 2022 was a copy of the change of assessment decision made on 15 July 2021.  A review of this change of assessment decision, which relates to the costs of educating the children at [College 1], provides no explanation as to why Ms Voaden should only be able to claim half the school resource payments as non-agency payments.

9. Section 71A of the Act provides for payments made by the payer of an enforceable maintenance liability to a third party to be credited against the amount payable under the child support liability. The amount paid by the payer to the third party must partially or completely satisfy a debt owed by the payee, the payer or both the payer and the payee (paragraph 71A(1)(a)). It must be the intention of both parties that the payments, or part of the payments, be credited against the payer’s enforceable child support liability in relation to the child support enforcement period (paragraph 71A(1)(c)).

10. It is not in contention and the Tribunal finds that Ms Voaden made a payment of $304.50 for a resource fee for [Child 1] on 25 August 2021.  Collection of child support commenced from 12 November 2019 and the Tribunal is satisfied that at the time the payment was made there was an enforceable maintenance liability in place.  Payments towards the school resource fee also satisfy a debt owed by Mr Marriott, Ms Voaden or both to [College 1].  Paragraph 71A(1)(a) is, therefore, met.

11. For the school resource fee payment to meet the requirements under paragraph 71A(1)(c) it must also have been the intention of both parents that the amount paid, or part of the amount paid, was to be paid “in complete or partial satisfaction of an amount payable” under the “enforceable maintenance liability in relation to the child support enforcement period”.  Mr Marriott has agreed the resource fee for [Child 1] should be considered as a payment made in lieu of child support and this was the initial intention.  Mr Marriott only wants half the amount to be credited against Ms Voaden’ enforceable maintenance liability, however, in keeping with subsequent advice he received from the Child Support Agency.

12. The Tribunal disagrees with the advice provided by the Child Support Agency in this regard and has found no basis for this advice.

13. Child support is calculated according to a formula which includes a “costs of children” amount.  This is intended to represent a global amount that is the average cost of a child, given that child’s age, the family structure and the combined income of the parents. The “costs of children” amount includes a component for education costs. Mr Marriott has 100 per cent care of [Child 1] and Ms Voaden is, therefore, already contributing to the costs associated with educating [Child 1] through the payment of child support.  If the full amount of the resource fee for [Child 1] is not credited as a non-agency payment then Ms Voaden would effectively be paying twice.

14. Given Mr Marriott agrees the resource fee for [Child 1] should be considered as a payment made by Ms Voaden in lieu of child support the Tribunal is satisfied the requirements of requirements of paragraph 71A(1)(c) are met.

15. The Tribunal finds the payment made by Ms Voaden towards the school resource fee for [Child 1] can be considered as a non-agency payment under section 71A of the Act. The application made by Ms Voaden for the payment of $304.50 on 25 August 2021 to be credited as a non-agency payment should, therefore, be accepted.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the payment of $304.50 for a school resource fee for the child [Child 1] made on 25 August 2021 should be credited under section 71A of the Child Support (Registration and Collection) Act 1988 against Ms Voaden’s child support liability.