Application for Collection of Ongoing Child Support and Arrears

Green and Sampson (Child support) [2019] AATA 378 (10 January 2019)

DIVISION:                                           Social Services & Child Support Division

REVIEW NUMBER:                         2018/SC015249

APPLICANT:                                     Ms Green

OTHER PARTIES:                           Child Support Registrar

                                                              Mr Sampson

TRIBUNAL:                                       Member J Thomson

DECISION DATE:                             10 January 2019

 

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that an arrears amount of $1,559.05 was collectable for the period 6 May 2018 to 5 August 2018.

 

REASONS FOR DECISION

BACKGROUND

1.    Ms Green and Mr Sampson are the parents of [Child 1], born 2000, and [Child 2], born 2003 (the children).

2.    Ms Green seeks review of an objection decision made by the Department of Human Services – Child Support (the Department) on 16 December 2018. This decision allowed Mr Sampson's objection to the Department’s earlier decision of 8 August 2018 to accept Ms Green’s application for collection of child support payable by Mr Sampson from 6 August 2018 together with arrears of child support for the period 6 May 2018 to 5 August 2018 (the arrears period) in the amount of $1,559.05.

3.    The objections officer decided that a payment of $3,000 made by Mr Sampson to Ms Green’s [Bank 1] account on 13 May 2018 was a payment of child support made within the arrears period, and, consequently, there was no unpaid child support for the arrears period.

4.    The Tribunal heard the matter on 10 January 2019. Both parents attended the hearing via conference telephone and gave affirmed evidence. The Tribunal had before it documentation provided by the Department. Both parents had copies of these papers with them at hearing, and the Department’s documentation was admitted into evidence and marked Exhibit 1.

ISSUES

5.    The issue which arises in this case is whether the payment of $3,000 made by Mr Sampson on 13 May 2018 to Ms Green’s [Bank 1] account was a child support payment made within the arrears period for the purposes of child support.

CONSIDERATION

6.    In reaching its decision, the Tribunal has considered the affirmed evidence of both parents at hearing, and the documentation contained in Exhibit 1.

7.    The statutory provisions relevant to this review are contained in sections 39 and 39A of the Child Support (Registration and Collection) Act 1988 (the Act). Section 39(1) provides that if a registered liability is not enforceable under this Act because of an election made under section 38A of the Act, (in this case, an election by Ms Green to have the liability no longer enforced under this Act), the payee (Ms Green) may apply to the Registrar for the liability to again become enforceable under this Act, that is, collected by the Department.

8.    Section 39A(4) of the Act provides that if a payee ( Ms Green) makes an application under section39(1) of the Act, the payee may also apply to the Registrar, in the manner specified by the Registrar, for any unpaid amounts payable under the liability in relation to a specified period to be treated as arrears amounts for the purposes of this section.

9.    Subparagraph (5) of section 39A provides that if the specified period does not exceed three months, the Registrar must grant the payee’s application. In this case, the Department accepted Ms Green’s application on 6 August 2018 to have Mr Sampson’s child support liability enforced/collected by the Department together with arrears of child support payments for the three months preceding Ms Green’s application (the arrears period referred to above), which the Department has calculated to amount to $1,559.05.

10. On 8 August 2018, Mr Sampson objected to the Department’s decision to collect child support for the arrears period, claiming that during that period, on 13 May 2018, he had paid an amount of $3,000 to Ms Green’s nominated [Bank 1] account, which he contended should be credited against the child support arrears of $1,559.05 the Department sought to recover for the arrears period.

11. The objections officer allowed Mr Sampson’s objection, deciding that the payment of $3,000 made by him on 13 May 2018 was a payment of child support within the arrears period, and that there were no arrears of child support unpaid in that period.

12. The Act, by implication, requires that a payment made by a liable payer to a payee be made for child support purposes, that is, a payment made to the payee in satisfaction of a child support assessment made by the Department, and accepted as such by the payee.

13. Ms Green’s evidence at hearing was that when [Child 1]’s [sports] team was invited to travel to [Country 1] in 2018 to participate in a [sports] tournament to be held over a one-month period, for which [Child 1] was required to pay a total cost of approximately $10,000 to his team’s events coordinator, Ms Green suggested to [Child 1] that he contact Mr Sampson to request his financial assistance in funding his trip. She said [Child 1] did this via text message to Mr Sampson, in response to which she said [Child 1] informed her that Mr Sampson had agreed to contribute the sum of $3,000.

14.  She was unable to provide a copy of [Child 1]’s text massage to Mr Sampson as it had been deleted from the mobile phone from which he sent the message.

15   Ms Green’s evidence was that she provided [Child 1] with details of her bank account to which Mr Sampson could deposit his $3,000 contribution to [Child 1]’s costs for travelling to [Country 1] for the tournament.

16. In response to questioning by the Tribunal as to any discussions she had with Mr Sampson regarding the payment of his contribution to the tournament costs, she said that as she and Mr Sampson were not on speaking terms at that time or since, there was no discussion between them regarding the circumstances in which he agreed with [Child 1] to make a $3,000 contribution, and that her knowledge and information regarding Mr Sampson’s agreement to make a contribution came from [Child 1].

17. She said she became aware Mr Sampson had deposited his $3,000 contribution to the tournament costs to her [Bank 1] account when she noticed that amount had been credited to her bank account on 13 May 2018. She said she forwarded this amount to [Child 1]’s [sports] team authorities in part payment of [Child 1]’s costs for the trip to [Country 1]. She gave evidence that she had made arrangements with [Child 1]’s [sports] team management to pay off the balance of the costs of his trip to [Country 1] for the tournament from her own funds. She denied there was any agreement with Mr Sampson that his contribution to the cost of [Child 1]’s trip to [Country 1] would be accepted by her as a payment in lieu of child support.

18. Mr Sampson’s evidence was that he received the request for financial assistance for [Child 1]’s trip to [Country 1] for the [sports] tournament from [Child 1] via Ms Green’s mobile telephone, which included details of Ms Green’s [Bank 1] account to which his contribution was to be paid.

 19. He also acknowledged that he had agreed to assist [Child 1] with funding for his trip to [Country 1] for the [sports] tournament by contributing the sum of $3,000, and that as soon as he was able to raise those funds, he deposited that amount to Ms Green’s nominated bank account on 13 May 2018, categorising the deposit as “Transfer to [Bank 1] A/c [Bank 1] App [Country 1] Trip”, as appears from the payment advice document at pages 36 and 45 of Exhibit 1.

20.  Mr Sampson also acknowledged in his evidence to the Tribunal that there was no discussion or agreement between him and Ms Green that his contribution of $3,000 to [Child 1]’s trip to [Country 1] would be treated as a payment in lieu of child support. He said he had been informed by officers at the Department that the payment could be considered as a child support payment because it related to a school sporting event. However, he acknowledged that his payment to Ms Green’s [Bank 1] account was expressly for the purpose of defraying the costs of [Child 1]’s [sports] team’s trip to [Country 1], and not child support.

21.  Mr Sampson did not challenge the quantification of the arrears calculated by the Department at $1,559.05 at hearing.

22. The Tribunal finds that the evidence is that Mr Sampson’s payment of $3,000 to Ms Green’s [Bank 1] account on 13 May 2018 was expressly his contribution to [Child 1]’s costs for his trip to [Country 1] for his team’s participation in a [sports] tournament in that country, and not a payment for child support purposes. As such, it cannot be regarded as a child support payment made within the arears period.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that an arrears amount of $1,559.05 was collectable for the period 6 May 2018 to 5 August 2018.

Posted in: Derek Legal Blog at 19 February 20