Willoughby and Willoughby (Child support)

[2020] AATA 2136

Willoughby and Willoughby (Child support) [2020] AATA 2136 (18 May 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC018510

APPLICANT:  Mr Willoughby

OTHER PARTIES:  Child Support Registrar

Ms Willoughby

TRIBUNAL:Member S Brakespeare

DECISION DATE:  18 May 2020

DECISION:

The decision under review is varied so that there are no arrears of child maintenance in respect of the arrears period ending 12 August 2018.

CATCHWORDS

CHILD SUPPORT – registrable maintenance liability - whether the overseas maintenance liability concerning arrears should have been registered – no arrears payable - decision under review varied

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted 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. On 13 August 2018 the Child Support Agency received Ms Willoughby’s application to register an overseas maintenance liability as follows:

   ·a child maintenance order for [the child];

   ·a spousal maintenance order in respect of herself;

   ·collection of arrears of child maintenance of [Foreign currency]1,585; and

   ·collection of arrears of spousal maintenance of [Foreign currency]4,610.15.

2. The application had been transmitted to the Child Support Agency by the [Country Government Agency].

3. On 4 December 2018 an officer of the Child Support Agency accepted the application to collect periodic amounts of child support and spousal maintenance from 13 August 2018 from the liable parent, Mr Willoughby. The Child Support Agency officer also assessed that Mr Willoughby had enforceable arrears of [Foreign currency]5,856.95 (child maintenance) and [Foreign currency]8,552.66 (spousal maintenance).

4. Mr Willoughby lodged an objection to the decision in respect of the arrears of child maintenance on the basis that there were no child maintenance arrears owing. An objections officer varied the decision to the extent that the child support arrears were reduced to [Foreign currency]1,306.05 (the decision as varied). The basis of the variation was that [Foreign Government Agency] had advised the Child Support Agency that Mr Willoughby had made 7 payments of [Foreign currency]650 (totalling [Foreign currency]4,550) from 25 January 2018 to 25 July 2018.

5. Mr Willoughby lodged an application for review of the decision, as varied with the tribunal. A hearing was held on 13 May 2020. Mr Willoughby and Ms [Willoughby] each gave evidence on affirmation to the tribunal via conference telephone. The Child Support Agency provided the tribunal and the parties with a bundle of documents relevant to the review (695 pages).[1] Mr Willoughby provided extra documents to the tribunal (folios A1 to A10), a copy of which was forwarded to Ms Willoughby.

   [1] Ms Willoughby advised that she was yet to receive the papers from the Child Support Agency; however, she was happy to proceed with the review in their absence.

6. Relevant aspects of the evidence and material before the tribunal will be referred to in the tribunal’s consideration of the issues which it has to decide.

ISSUES

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

2. Mr Willoughby told the tribunal that the only issue to be decided was the amount of child support arrears.

3. The issue which arises in this case therefore is the amount of child support arrears that arose as a result of the registrable overseas maintenance liability.

CONSIDERATION

1. A registrable overseas maintenance liability is a liability of a parent to pay a periodic amount for the maintenance of a child, which arises due to an order made by a judicial authority of a reciprocating jurisdiction. Where, as in this case, the payee is a resident of a reciprocating jurisdiction and the payer is a resident of Australia, the payee may apply to the Registrar, through the overseas authority, for the registration of the registrable overseas maintenance liability. The Registrar has a statutory obligation to enter particulars of the liability in the Child Support Register within 90 days of receiving the application to register the liability (sections 18A, 25 and 26 of the Act).

2. A liability is a registrable overseas maintenance liability if it is an amount that is in arrears under a liability of a parent of a child to pay a periodic amount of maintenance in accordance with an overseas maintenance liability (subsection 18(4) of the Act). An “overseas maintenance liability” is defined in section 4 of the Act as follows:

   "overseas maintenance liability" means a liability that arises under:

   (a)  a maintenance order made by a judicial authority of a reciprocating jurisdiction; or

   (b)  a maintenance agreement registered by a judicial or administrative authority of a reciprocating jurisdiction; or

   (c)  a maintenance assessment issued by an administrative authority of a reciprocating jurisdiction.

3. Section 26 of the Act sets out the particulars in relation to the liability that are to be entered into the Child Support Register when an application is first made for registration of a registrable maintenance liability. The Registrar must enter details including the particulars of the child support assessment, court order or maintenance agreement under which the liability arose and each assessment, court order and maintenance agreement varying or otherwise affecting the first-mentioned assessment, order or agreement that are, in the opinion of the Registrar, sufficient to adequately identify the basis of the liability.

4. Under an order made by the Family Court at the Central Family Court on 9 August 2016 Mr Willoughby was required to pay Ms Willoughby periodical payments for the benefit of the child of [Foreign currency]7,800 per annum payable monthly in advance. Payments were to start on 25 February 2016 and, in the event the child did not attend university, would end on 31 July 2019.

5. It is not in contention, and the tribunal finds, that the order is a maintenance order made by a judicial authority of a reciprocating jurisdiction and is a registrable overseas maintenance liability.

6. In the tribunal’s view, whether there were arrears arising as a result of the periodic maintenance order is a question of fact. In an affidavit sworn on 25 January 2018 and submitted to [Foreign Government Agency], Ms Willoughby stated that in respect of the period 25 August 2016 to 25 December 2017, there were child support arrears of [Foreign currency]1,585. The amount was comprised of two payments of [Foreign currency]650 due on 25 July 2017 and 25 August 2017; and, in respect of the payment due on 25 September 2017, only [Foreign currency]365 was paid, leaving a deficit of [Foreign currency]285.

7. Prior to the hearing, Mr Willoughby provided the tribunal with a copy of a sworn affidavit from Ms Willoughby dated 27 April 2020 (folio A10). Mr Willoughby said that he had provided the affidavit to the Child Support Agency and had asked for it to be transmitted to [Foreign Government Agency]. He said that the Child Support Agency has advised him verbally that they will not transmit the document on his behalf.

8. Ms Willoughby said that she had provided the affidavit directly to Mr Willoughby rather than sending it to [Foreign Government Agency], as [Foreign Government Agency] provides very little in the way of communication and any response usually takes months.

9. At hearing, Mr Willoughby and Ms Willoughby both agreed that child maintenance payments totalling [Foreign currency]1,300 had been accepted as being paid in lieu as funds used for the child whilst the child was with Mr Willoughby in Australia. According to a spreadsheet attached to the sworn statement, this was with agreed to in an email dated 17 November 2017. A further amount of [Foreign currency]285 paid directly to the child’s savings account was accepted by Ms Willoughby as being in lieu of child support. It was noted in the spreadsheet attached to the sworn statement that this was agreed to in an email dated 21 September 2017. The tribunal noted that these emails are in the bundle of papers provided by the Child Support Agency.

10. The tribunal accepts the sworn statement made by Ms Willoughby on 27 April 2020 and the evidence provided at hearing by Mr Willoughby and Ms Willoughby. The tribunal is satisfied that there were no arrears of child maintenance arising from the order of 25 August 2016 for the period prior to 13 August 2018.

DECISION

The decision under review is varied so that there are no arrears of child maintenance in respect of the arrears period ending 12 August 2018.