Wade and Brandon (Child support)

[2019] AATA 688

Wade and Brandon (Child support) [2019] AATA 688 (5 March 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/PC015237

APPLICANT:  Mr Wade

OTHER PARTIES:  Child Support Registrar

Miss Brandon

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  05 March 2019

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the amount of child support payable by Mr Wade in the arrears period is $1,828.82.

CATCHWORDS

CHILD SUPPORT - opt-in arrears - whether there were unpaid amounts - application for collection of unpaid amounts should be accepted - 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. Mr Wade and Miss Brandon are the parents of [Child 1] (born March 2004) and [Child 2] (born April 2006).  There has been a child support assessment in place since 4 March 2004 and Mr Wade is the liable parent under the assessment.

2. On 1 January 2018 the Department of Human Services, Child Support (the Child Support Agency) ceased to collect child support payments from Mr Wade and the child support assessment was registered as a private collect arrangement between the parents.

3. On 9 July 2018 Miss Brandon applied to the Child Support Agency to start collecting child support as well as outstanding payments for the period from 9 April 2018 to 8 July 2018.

4. On 9 July 2018 the Child Support Agency accepted Miss Brandon’s application for collection.  A decision was made to adjust the arrears owed by Mr Wade to $43.82 for the period from 9 April 2018 to 8 July 2018.

5. On 6 August 2018 Miss Brandon objected to the arrears decision and on 26 September 2018 the Child Support Agency allowed the objection.  A decision was made to collect child support arrears of $3,168.82 for the period 9 April 2018 to 8 July 2018 (the objection decision).

6. On 16 October 2018 Mr Wade 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 5 March 2019.  Both Mr Wade and Miss Brandon gave evidence on affirmation by conference telephone.  The Child Support Agency provided the Tribunal and the parties with a bundle of papers relevant to the matter (100 pages).

8. At hearing the Tribunal requested additional evidence from Mr Wade in the form of his work roster for the period under consideration and this was received on 5 March 2019 (A1-A2).

ISSUES

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

2. The issue which arises in this case are:

   ·       what is the amount of child support arrears, if any, Mr Wade is liable to pay in the specified three month period?

CONSIDERATION

1. A payee can elect to end the collection of a child support liability under section 38A of the Act.  The Child Support Agency must accept an election to end collection and the liability will cease to be enforceable from a specified terminating day.

2. Section 39 of the Act states a payee who made an election under section 38A can reapply at a later time to again have the liability enforced by the Child Support Agency.  If the application is made in a specified manner then it must be granted subject to the satisfaction of the Registrar.

3. If an application made under section 39 of the Act is accepted, the payee may also apply for any unpaid amounts to be treated as arrears amounts and collected by the Child Support Agency (subsection 39A(4)).  If the specified period does not exceed three months, the Child Support Agency must grant the payee’s application (subsection 39A(5)).

4. The Tribunal notes that, according to evidence provided by the Child Support Agency, Miss Brandon has changed the mode of collection on a number of occasions.  The Tribunal is satisfied that Miss Brandon applied in the specified manner for the liability to become enforceable again on 9 July 2018 and this was a subsequent application.

5. Mr Wade told the Tribunal that prior to Miss Brandon applying for agency collection he would pay her child support directly into her bank account every week.  Mr Wade said they had agreed on an amount of $380.00 per week and he paid this regularly but would also sometimes pay cash amounts if Miss Brandon requested this because she was short of money.  He said this arrangement worked well and he had never been in arrears.

6. Mr Wade said that around 29 May 2018, when an issue arose with his eldest son, Miss Brandon applied for child support to be collected by the Child Support Agency.  Initially the arrears were calculated at $43.82 but Miss Brandon then withdrew her application for collection.  When she later changed her mind and asked to proceed with agency collection he agreed this was the best option for both of them as he was sick of Miss Brandon changing her mind.  Mr Wade said he was only in arrears because he had not made any payments after thinking collection by the Child Support Agency had started.

7. Mr Wade told the Tribunal he always paid Miss Brandon child support the week it was due.  He said often Miss Brandon needed more money and he had recently started making additional payments using cardless cash.  He said this was at Miss Brandon’s request.  Mr Wade said the cardless cash system allowed him to send a text message to Miss Brandon with a five digit code which she then used to withdraw a fixed amount from his account.

8. Mr Wade told the Tribunal there were three such cardless cash payments he made during the arrears period that had not been included by the Child Support Agency.  These were payments made on 20 April 2018, 7 May 2018 and 23 May 2018 totalling $450.00.  Mr Wade explained the money was withdrawn at a [teller machine] in [Town 1] where Miss Brandon lived but she disputed ever receiving these amounts.  Mr Wade added he was working in [another specified town] on these dates and was not in [Town 1] and so he could not possibly have withdrawn the money himself.

9. Miss Brandon agreed that she had asked Mr Wade to pay child support of $380.00 per week during the private collect period.  Miss Brandon told the Tribunal that Mr Wade always paid regularly by transferring the funds into her bank account.  Miss Brandon said Mr Wade never paid child support unless it was properly documented with a record of the payments so it could not “come back and bite him in the bum.”

10. Miss Brandon told the Tribunal she agreed with all the child support payments made by Mr Wade during the arrears period through her bank account.  Miss Brandon said she only disputed the cardless cash payments and had never received cardless cash codes from Mr Wade.  She said she did not receive that money.  Miss Brandon added the cardless cash payments could have been made to his new girlfriend who also lived in [Town 1]. 

11. Mr Wade responded by saying he was unaware of the cardless cash system until Miss Brandon had recently explained to him how it worked.  Mr Wade reiterated that he was not in [Town 1] on 20 April 2018, 7 May 2018 or 23 May 2018 when the withdrawals were made from a [teller machine] in [Town 1].

12. The Tribunal notes in evidence from the Child Support Agency copies of [Bank 1] statements provided by Mr Wade with child support payments to Miss Brandon circled.  During the arrears period from 9 April 2018 to 8 July 2018 the following payments were made from this account:

    ·     11/04/2018   ‘Ms Brandon CSA’ - $380.00

    ·     11/04/2018   ‘Ms Brandon CSA’ - $300.00

    ·     12/04/2018   ‘Ms Brandon CSA’ - $50.00

    ·     16/04/2018   ‘Ms Brandon CSA’ - $50.00

    ·     20/04/2018   ‘Ms Brandon CSA’ - $280.00

    ·     27/04/2018   ‘Ms Brandon CSA’ - $380.00

    ·     04/05/2018   ‘Ms Brandon CSA’ - $380.00

    ·     11/05/2018   ‘Ms Brandon CSA’ - $380.00

    ·     18/05/2018   ‘Ms Brandon CSA’ - $380.00

    ·     25/05/2018   ‘Ms Brandon CSA’ - $380.00

    ·     01/06/2018   ‘Ms Brandon CSA’ - $380.00

    ·     08/06/2018   ‘Ms Brandon CSA’ - $380.00

    ·     15/06/2018   ‘Ms Brandon CSA’ - $380.00

    ·     22/06/2018   ‘Ms Brandon CSA’ - $380.00

    ·     25/06/2018   ‘Ms Brandon CSA’ - $380.00

13. The Tribunal also notes in evidence that on 18 July 2018 Miss Brandon provided the Child Support Agency with copies of her [Bank 1] statements for the period in question.  The 15 payments made by Mr Wade for child support correspond to amounts received by Miss Brandon in her bank account on the same dates.

14. The bank statements provided by Mr Wade also show a cardless cash withdrawal amount of $100.00 made at a [teller machine] in [Town 1] on 20 April 2018.  This transaction has been circled by Mr Wade.  There are no cardless cash withdrawals made on 7 May 2018 or 23 May 2018 identified in these bank statements.  There are no other cardless cash withdrawal transactions identified in these bank statements.

15. The work roster provided by Mr Wade following the hearing shows that on 20 April 2018 Mr Wade was in [Town 1].  The Tribunal is not satisfied that Miss Brandon was the recipient of the $100.00 cardless cash withdrawal made on 20 April 2018.  As there is no evidence of cardless cash withdrawals made on 7 May 2018 or 23 May 2018, the Tribunal will not consider these further.

16. The Tribunal finds that Miss Brandon applied for arrears to be collected from 9 April 2018 to 8 July 2018.  As this period does not exceed three months her application must, therefore, be granted.  Mr Wade and Miss Brandon agree that Mr Wade made payments of $4,860.00 during the arrears period.  Mr Wade has submitted that he made additional cardless cash payments totalling $450.00 during the arrears period.  Miss Brandon disagrees.

17. There is no evidence before the Tribunal the additional cardless cash payments were received by Miss Brandon.

18. The Tribunal therefore finds that Mr Wade made total payments of $4,860.00 during the arrears period from 9 April 2018 to 8 July 2018.

19. The Child Support Agency has calculated that Mr Wade’s child support liability during the arrears period totalled $6,688.82.  Neither parent disputed this amount.

20. The Tribunal is satisfied that the amount of child support owed by Mr Wade in the arrears period from 9 April 2018 to 8 July 2018 is $1,828.82.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the amount of child support payable by Mr Wade in the arrears period is $1,828.82.