Wygle and Wygle (Child support)

[2020] AATA 269

Wygle and Wygle (Child support) [2020] AATA 269 (13 January 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC017805

APPLICANT:  Ms Wygle

OTHER PARTIES:  Child Support Registrar 

Mr Wygle

TRIBUNAL:Member R King

DECISION DATE:  13 January 2020

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Wygle’s application, on or around 3 December 2018, that the sum of $13,709.30 paid by him for school fees be treated as payments received by the agency and credited to his  child support liability, is rejected

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 Wygle and Mr Wygle are the parents of [Child 1] (aged 15 years) and [Child 2] (aged 13 years).  Ms Wygle and Mr Wygle separated in 2010.  At the relevant time both [Child 1] and [Child 2] were attending a private school ([named]) in accordance with the shared intentions and wishes of both parents. Mr Wygle was paying child support to Ms Wygle.  The Child Support Agency (CSA) was collecting child support in accordance with an administrative assessment.

2. On 3 December 2018, Mr Wygle contacted the CSA and advised that he wished to have a total of $14,131.35 in expenses he had incurred in respect of [Child 1] and [Child 2] credited as non-agency payments (NAPs).  The largest portion of this sum was $13,709.30 for school fees.  The CSA contacted Ms Wygle who advised that she did not accept the school fees as a NAP.  The CSA, accordingly, declined to credit the sum of $13,709.30, in respect of Mr Wygle’s child support liability.

3. On 30 December 2018, Mr Wygle objected to the decision to reject the school fee component of his expenses for [Child 1] and [Child 2], as a NAP.  

4. On 20 February 2019, an objections officer set aside the decision and allowed Mr Wygle’s objection.  The objections officer found that there was a pattern whereby both parties had allowed school fee payments made by the other parent to be credited as NAPs and that this pattern was sufficient to establish a mutual intent. The objections officer noted that Ms Wygle had not advised Mr Wygle that she no longer agreed that school fee payments could be credited as a NAP, prior to 3 December 2018.

5. On 1 August 2019 (more than 28 days after receiving the objection decision), Ms Wygle applied to the Tribunal for review.  On 11 November 2019, the tribunal granted Ms Wygle an extension of time and allowed her application to proceed.

6. The Tribunal conducted a hearing on 13 January 2020.  Ms Wygle and Mr Wygle both participated by conference telephone and provided sworn evidence. 

CONSIDERATION

1. Ms Wygle told the tribunal that she had never agreed to any general arrangement by which Mr Wygle could claim the school fees paid by him for [Child 1] and [Child 2] as a NAP.  She said that she agreed on specific occasions but that never implied a continuing agreement.  She expected that on each occasion her agreement would be sought.  She said that on previous occasions she had agreed to the fees being treated as a NAP because Mr Wygle’s share of the fees were in arrears and it was the only way to get him to pay his share.  She said that she regarded the school fee payments as part of an agreement about the wider costs of [Child 1] and [Child 2], which had to be regularly negotiated.  She was of the view that Mr Wygle had failed to meet her expectations regarding his financial responsibilities for the children and he could not expect that she would agree to his share of the school fees being deducted from her child support.

2. Ms Wygle told the tribunal that the last time she agreed to Mr Wygle’s share of the school fees being treated as a NAP was in 2016.  She said that Mr Wygle had been paying his share of the school fees since then but had not claimed them at the time of payment because he had a child support credit.  Now that the credit was exhausted, he claimed them as a batch without checking to see whether she would continue to accept them.

3. Mr Wygle told the tribunal that Ms Wygle had accepted the school fee payments as a NAP in the past and there was no reason to doubt that there continued to be a mutual intention.  Mr Wygle said that he was unhappy that the tribunal had accepted a late application for review from Ms Wygle. 

4. The tribunal notes that Ms Wygle’s reasons for a late application were reviewed by a tribunal member and found to provide a basis for accepting her application.  This decision is not reviewable.

Application of the law

1. The relevant provisions are contained in the Child Support (Registration and Collection) Act 1988 (“the Act”). The Child Support Guide contains detailed policy guidelines for CSA officers to use when applying the Act. The tribunal is not bound by these guidelines but, for the sake of consistency in decision-making, the tribunal follows the guidelines, unless it would be clearly inconsistent with the proper application of the law to do so.

2. Under section 71A of the Act a child support payer may apply to the CSA for a payment to a third party (in this case a school) to be treated as payments received by the agency and credited to the payer’s child support liability. The CSA will only accept such an application when it was intended by both the payee and the payer that the payment be in complete or partial satisfaction of a child support liability.

3. The issue before the tribunal is the intention of both parties.  It is not in dispute that Mr Wygle intended that his payment of school fees be credited to his child support liability.  Nor is it in dispute that, when the CSA contacted Ms Wygle to find out whether she also intended that Mr Wygle’s payment be credited against Mr Wygle’s child support liability, she advised that she did not so intend.

4. The objection officer took the view that, notwithstanding Ms Wygle’s rejection of the NAP, she had intended that school fee payments made by Mr Wygle be treated as NAPs at the various times, over an approximately two-year period, when he made them. 

5. The tribunal notes that there is no written agreement or any other evidence that would assist the tribunal to establish whether or not there was an enduring intention that Ms Wygle would accept school fee payments as NAPs.  The tribunal is not satisfied that a past history of accepting a NAP establishes an enduring intention.  The tribunal accepts Ms Wygle’s evidence that she regarded NAPs as a form of leverage rather than an amicable agreement about costs.  The tribunal is satisfied that she expected to be consulted in relation to each claim and to make a decision that was contingent on the circumstances. 

6. In the absence of a written agreement or a third-party witness, intent is a subjective state.  For the tribunal to infer a mutual intention when a party denies any intention, there would need to be stronger evidence that is inconsistent with this avowed lack of intention than the acceptance of a NAP in 2016. 

7. The tribunal accepts that Mr Wygle probably acted in good faith and that he had some reason on the basis of past experience to expect that Ms Wygle would accept the payment of his share of the school fees as a NAP.  The tribunal also notes that, at a time when Ms Wygle was the child support payer, Mr Wygle accepted her payment of her share of the school fees as a NAP.  However, this only establishes mutual intention at these times.  The evidence indicates that the parenting relationship between Ms Wygle and Mr Wygle was contentious at times and agreement was not something that could be assumed.  It was open to Mr Wygle to check with Ms Wygle as to whether she was willing to accept his school fee payments as NAPs before accumulating a substantial amount in school fee payments and lodging his application with the CSA. 

8. It follows that the requirements of section 71A of the Act were not met and the original decision-maker properly rejected Mr Wygle’s application for his school fee payments to be treated as a NAP. The objections officer was not justified in inferring a mutual intention.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Wygle’s application, on or around 3 December 2018, that the sum of $13,709.30 paid by him for school fees be treated as payments received by the agency and credited to his  child support liability, is rejected.