Wharton and Feek (Child support)

[2021] AATA 3848

Wharton and Feek (Child support) [2021] AATA 3848 (9 September 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/MC021955

APPLICANT:  Mr Wharton

OTHER PARTIES:  Child Support Registrar

Ms Wharton

TRIBUNAL:Member A Byers

DECISION DATE:  9 September 2021

DECISION:

The Tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – non-agency payment – no mutual intention – prescribed   payment for school fees – regular care of the children – credit of payment correctly refused – 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. Since 30 December 2015 the Child Support Agency (CSA) has collected Mr Wharton’s child support liability on Ms Feek’s behalf.  From this date, there are four children for child support assessment purposes, namely, [Child 1], [Child 2], [Child 3] and [Child 4].

2. According to CSA records, from 30 December 2015 Mr Wharton had 20% of [Child 3]’s care and 21% of [Child 4]’s care with Ms Feek having the remaining care.  At all material times Ms Feek has had the sole care of [Child 1] and from 17 February 2020 Mr Wharton has had the sole care of [Child 2]. 

3. In addition to the child support collected by the CSA, Mr Wharton has submitted the following payments relating to [Child 1]’s private school fees that he wishes to have credited towards his child support liability:

   Date  Amount

   12.01.18  $2,000

   11.01.19  $1,700

   10.01.20  $1,700

   04.01.21  $1,250

   Total:  $6,650

1. On 19 May 2021 the CSA refused to credit the payments.  On 7 July 2021 an objections officer disallowed Mr Wharton’s objection to this decision and he sought review of the objections officer’s decision by the Tribunal on 19 July 2021.  The application was heard by conference telephone on 9 September 2021 in Brisbane and the parties gave sworn evidence.   

2. The following material was before the Tribunal prior to the hearing:

   -     the ‘Subsection 37(1) Statement and Documents’ provided by the CSA, comprising folios 1 to 58 (marked Exhibit 1). 

CONSIDERATION

1. The essential issue is whether Mr Wharton’s payments, as described in paragraph 3, can be credited in whole or part against his child support liability.  It is common ground the payments were made.

2. The legislation relevant to this matter is contained in the Child Support (Registration and Collection) Act 1988.[1]  In general terms the Act sets out a regime for the periodic collection of a person’s enforceable maintenance liability.  Outside this regime sections 71 to 71D allow for certain payments to be credited against an enforceable maintenance liability in specified circumstances.  The CSA refers to payments credited in this way as “non-agency payments” (NAPs).  It is common ground that there was an enforceable maintenance liability in place at all relevant times whereby Mr Wharton was the payer of child support.   

   [1] All further references are to this Act unless otherwise stated.

3. Section 71A allows for payments, or parts of payments, to a third person (or entity) to be credited against a payer’s child support liability where the parties each intend that payments, or the parts, be so credited.  In contrast, section 71C provides for the crediting of payments of a kind specified in regulations to the Act irrespective of a mutual intention (prescribed NAPs). 

4. Paragraph 71C(1)(d) requires, as a condition of the operation of the section, that “the payer does not, at the time the Registrar applies this section, have at least regular care of any of the children to whom the relevant administrative assessment relates” (emphasis added). Regular care is defined in subsection 5(2) of the Child Support (Assessment) Act 1989 as care of at least 14% but less than 35%.

10.In my view the correct focus here is the circumstances present when a payment is made, rather than those present when the relevant liability accrued (although in the present matter this distinction is immaterial).

11.It is common ground and I find that, throughout the period covering Mr Wharton’s payments towards [Child 1]’s school fees, his care of the children was as described in paragraph 2 above.  Mr Wharton submitted (in effect) that section 71C should apply because the payments related to [Child 1] who has always been in Ms Feek’s sole care.  Although I understand the point, as Mr Wharton had regular care of [Child 3] and [Child 4] during this period, it follows from the wording in paragraph 71C(1)(d) that section 71C cannot apply. 

12.Turning to the requirements of section 71A, the parties agree that there was no mutual intention or understanding that the payments would count towards Mr Wharton’s child support liability.  Ms Feek indicated that the understanding to the contrary was that the parties would each pay a share of the school fees.  Ms Feek said that [Child 1]’s annual tuition fees (not including various other charges) in each year from 2018 totalled $6,000 and she indicated she paid the remainder of the fees and charges in each year at a discounted rate.  

13.It follows in the absence of an intention by both parties that Mr Wharton’s payments towards [Child 1]’s school fees also cannot be credited towards his child support liability as NAPs under section 71A. 

DECISION

The Tribunal affirms the decision under review