Tribunal: Member P Jensen
Primary Government decision
Child Support – Services Australia (the Agency) disallowed the Applicant’s objection, meaning the objection was unsuccessful, and found that arrears should be collected for the period from 16 March to 15 April 2021.
The Tribunal set aside the Agency’s decision and sent the matter back to the Child Support Registrar for reconsideration in accordance with directions that arrears are to be collected in respect of the period from 16 March to 15 April 2021 and the amount of the arrears to be calculated on the basis the father had paid $700 to the mother with respect to the period from 16 March to 15 April 2021.
Mr Mercer (the Applicant) and Ms Leonardi (the Second Party) have 2 children together. At the commencement of the child support case, the Second Party elected to have child support collected privately. This means the parties arranged child support between themselves.
The Second Party made an application on 16 April 2021 to have the Agency collect the ongoing child support payable. This meant collection was registered through the Agency.
The Second Party also applied to the Agency to collect arrears for the period from 16 March to 15 April 2021. The Agency granted the application and calculated the outstanding payment for that period to be $752.88.
The Applicant would pay his child support on or around the 16th of each month and could provide his payment history from August 2020 onwards. The issue was around the final payment made on 16 March 2021. The Applicant argued he had made an advance payment for the period from 16 March to 15 April 2021.
The Second Party disagreed, claiming that particular payment covered the previous period from 16 February to 15 March 2021. Therefore, she argued the Applicant still owed her money for the period between 16 March to 15 April 2021. The Agency’s objections officer agreed with the Second Party’s argument and claimed that child support payments are usually paid for the preceding period.
The Applicant objected. The Agency disallowed his objection and he applied to the AAT for further review.
The issue is whether the application for collection of unpaid amounts of child support should be accepted pursuant to section 28A of the Child Support (Registration and Collection) Act 1988, and if so, for what period and whether there were any outstanding arrears payable to the mother.
Application of law
Section 28A of the Child Support (Registration and Collection) Act 1988 enables the receiving parent to apply for arrears (unpaid amounts of child support) to be collected (usually up to three months previously or up to nine months if there are exceptional circumstances). This is called collection of ‘opt-in arrears’.
The Tribunal had to decide whether the application for collection of unpaid amounts should be accepted, if so, for what period and what the outstanding amounts of arrears were for that period. There was no dispute the collection of unpaid amounts of child support was for the period 16 March to 15 April 2021.
Summary of reasons for decision
The Second Party claimed that she had not received any child support for the period from 16 March to 15 April 2021. She applied for a decision requiring the Applicant to pay child support arrears. The Applicant and the Second Party gave inconsistent but equally plausible evidence concerning the period to which the final payment of $700 related.
A decision-maker should not exercise a power to make a decision unless the decision-maker is satisfied on the balance of probabilities that facts exist which warrant an exercise of the power. The evidence did not establish that the final payment of $700 was not for the period from 16 March to 15 April 2021.
Therefore, the Tribunal decided to send the matter back to the Agency to calculate the arrears from 16 March to 15 April 2021 on the basis that the final payment of $700 was for that period. (The Applicant had been assessed to pay more than $700 per month in child support).
Read the full decision on AustLII
Glossary and other notes
Arrears: Money owed; a payment in arrears refers to one that covers a preceding time period rather than owed in advance.
Balance of probabilities: The AAT must be satisfied that one case is more plausible than the other and that the case is backed up by the evidence that is before the Tribunal.
Set aside: If the AAT sets aside a decision, it means the Tribunal agrees or partially agrees the original decision was wrong.
Every case before the AAT is determined on its individual facts. These summaries may not include all information considered by the AAT and do not constitute legal advice. You should read the full decision to ensure you understand the basis of our decision.