Wilde and Carey (Child support)

[2019] AATA 3847

Wilde and Carey (Child support) [2019] AATA 3847 (17 July 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/PC016258

APPLICANT:  Mr Wilde

OTHER PARTIES:  Child Support Registrar

Ms Carey

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  17 July 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – non-agency payment – payments not made during a period where there was an enforceable maintenance liability – payments cannot be credited – 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. Mr Wilde and Ms Carey are the parents of [Child 1] (born January 2002) and [Child 2] (born December 2003).

2. There has been a child support assessment in place since 9 August 2007 with collection by the Department of Human Services, Child Support (the Child Support Agency) from 27 January 2016.  Mr Wilde is the liable parent under the assessment.

3. From 27 October 2015 the child support assessment reflected that Mr Wilde provides 28 per cent care and Ms Carey provides 72 per cent care of [Child 1] and [Child 2].  From 6 February 2016 the child support assessment reflected that Mr Wilde provides 3 per cent care and Ms Carey provides 97 per cent care of [Child 1] and [Child 2].

4. On 4 January 2017 Mr Wilde applied to the Child Support Agency for credit of the following five non-agency payments totalling $3,903.34:

   ·     1 December 2016 - $2,400.00 (direct payment to Ms Carey)

   ·     8 December 2016 - $400.00 (direct payment to Ms Carey)

   ·     11 December 2016 - $400.00 (direct payment to Ms Carey)

   ·     17 December 2016 - $445.60 (school books)

   ·     18 December 2016 - $257.74 (school books)

5. On 7 February 2017 the Child Support Agency made the decision to credit $3,903.34 as non-agency payments.

6. On 21 February 2017 Ms Carey objected to this decision and on 29 March 2019 the Child Support Agency allowed the objection and made the decision to refuse to credit the payments totalling $3,903.34 as non-agency payments (the objection decision).

7. On 9 April 2019 Mr Wilde applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

8. The Tribunal conducted a hearing into the application on 27 June 2019.  Both Mr Wilde and Ms Carey appeared before the Tribunal.  Mr Wilde gave sworn evidence and Ms Carey gave evidence on affirmation.  The Child Support Agency provided the Tribunal and the parties with a bundle of documents relevant to the review (598 pages).  Mr Wilde advised the Tribunal he had not received these documents but was familiar with the evidence and wished to proceed with the hearing.  Additional documents were received from Ms Carey prior to the hearing (B1-B90) and copies were provided to the parties.

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. 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 regulation 5D of the Child Support (Registration and Collection) Regulations 1988 (as in force at that time).

3. Section 71C of the Act provides a mechanism whereby payments made by a liable parent for items specified in regulation 5D 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.

4. The issue which arises in this case is whether or not any of the payments made by Mr Wilde can be credited against his child support liability.

CONSIDERATION

1. Mr Wilde told the Tribunal he believed the three payments made direct to Ms Carey were for child support but he was not certain.  He said the payments for school books were made after Ms Carey sent him a copy of the [invoice].

2. Ms Carey disagreed and said she transferred the funds for child support to her own bank account from a business bank account which both parents had access to at the time.  Ms Carey said this was in late 2015 and not late 2016 as it was immediately after the parents separated and she needed the money.  Ms Carey said she recorded the transfers as ‘child support’ because she did not want Mr Wilde to get into trouble for not paying child support.

3. Ms Carey added that the payments in question for school books were also made from the same business bank account in late 2015 and not late 2016.

4. The Tribunal notes in evidence from the Child Support Agency copies of statements from a [Bank 1] Business Transaction Account in the name of [Company 1] as Trustee for Wilde Family Trust.  The statements include the period 27 November 2015 to 30 December 2015.  The statements indicate the transfers for child support of $2,400.00, $400.00 and $400.00 were made on 1 December 2015, 8 December 2015 and 11 December 2015 respectively.  The statements also indicate the transfers for books of $445.60 and $257.74 were made on 17 December 2015 and 18 December 2015 respectively.

5. Mr Wilde agreed that, based on the evidence, there had been an error in the dates and the five payments in question were made in December 2015 and not December 2016.

6. Section 71 of the Act provides for a payment received by the payee of an enforceable maintenance liability direct from the payer to be credited against the amount payable under the liability. The amount received must be intended by both the payer and the payee to be paid in complete or partial satisfaction of an amount payable under the liability.  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.  It must be the intention of both parties that the payments, or part of the payments, be credited against the payer’s child support liability.

7. The payments made for school books may be credited under section 71C of the Act. Section 71C provides for payments of the kind prescribed by regulation to be credited against the amount payable under the liability for a payment period if certain conditions are met. One of these conditions is that the payer must be the payer of an enforceable maintenance liability in relation to a payment period or initial period.

8. The Tribunal has established that the five payments under consideration were made at a time when there was not an enforceable maintenance liability in place.  Collection by the Child Support Agency commenced on 27 January 2016.  The Tribunal finds these payments cannot, therefore, be considered as non-agency payments under sections 71, 71A or 71C of the Act.

DECISION

The decision under review is affirmed.