Tribunal: Member M Baulch
Primary Government decisions
An objections officer from Services Australia – Child Support refused to credit a payment of $6,514 made by Mr Downer for his child’s education expenses.
Mr Downer also made 6 payments of $375 for his child’s dental treatment. Services Australia – Child Support decided that 4 of these payments would be credited towards Mr Downer’s child support liability.
AAT decision
The Tribunal set aside the objections officer’s decision and substituted a decision to credit $6,514 against Mr Downer’s child support liability. The Tribunal also affirmed the decision to credit 4 payments of $375 for dental expenses.
Details
Mr and Ms Downer are the separated parents of a child. Service Australia – Child Support (‘Child Support’) assessed Mr Downer as liable to pay child support to Ms Downer from 9 February 2022. Since that date, Child Support has collected the child support payments from Mr Downer on Ms Downer’s behalf.
On 24 February 2022, Mr Downer requested that Child Support credit a payment of $6,514 paid to his child’s school against his child support liability. Child Support decided to credit this amount against Mr Downer’s liability.
On 8 July 2022, Mr Downer requested that 6 payments of $375 for his child’s orthodontic treatment be credited against his child support liability. Child Support decided that 4 payments should be credited.
Ms Downer objected to both these decisions, and an objections officer decided to:
- allow the objection in relation to the payment made to the child’s school and therefore not credit $6,514 against Mr Downer’s liability
- disallow the objection in relation to the payments made for orthodontic treatment, and therefore credit 4 payments of $375 against Mr Downer’s liability.
Mr and Ms Downer both applied to the Tribunal seeking a review of these decisions.
Issue
The Tribunal had to decide if any of these payments should be credited against Mr Downer’s child support liability.
Mr Downer advised that he was not seeking to have the 2 originally rejected orthodontic payments credited.
Application of law
Section 71C of the Child Support (Registration and Collection) Act 1988 (the Act) (also known as ‘prescribed non-agency payment’) outlines the types of payments that can be credited against a child support liability regardless of the intention of the parties at the time of payment was made. Credit can be given up to a maximum of 30% of the liability.
Regulation 19 of the Child Support (Registration and Collection) Regulations 2018 specifies the kinds of payments that are allowed to be credited under section 71C. This includes school fees and essential medical and dental services fees.
Paragraph 71C(1)(d) of the Act states that payments will not be credited if the liable parent has at least regular care of the child to whom the child support assessment relates.
Section 71D of the Act provides the discretion to refuse to credit the payments.
Summary of reasons for decision
The Tribunal was satisfied that the payments that Mr Downer made were for payments specified in Regulation 19 and that he had less than 14% of care of his child so section 71C of the Act applied.
The Tribunal also considered whether they should exercise the discretion to refuse to credit the payments against the child support liability under section 71D of the Act. In deciding whether or not the discretion should be exercised, the Tribunal noted the relevant government policy set out in the Child Support Guide. The Tribunal considered the policy unobjectionable in this case and had regard to it in their decision making.
The Tribunal found no evidence of any agreement between the parties about how dental and school fees should be met after their separation. Further, there was no court order about these matters. Ms Downer claimed that she did not have income and could not afford to contribute to the school fees and dental services. However, the Tribunal concluded that this was not a factor that should be considered.
The Tribunal found no basis to exercise their discretion to refuse to credit any of the amounts considered against the child support liability. The Tribunal decided all these amounts should be credited against Mr Downer’s liability.
Full decision
Read the full decision on AustLII.
Glossary
Regular care: Regular care is defined to mean care of at least 14% but less than 35%.
Set aside: If the AAT sets aside a decision under review, the original decision no longer stands. The AAT may make a new decision or remit the matter to the original decision-maker.
Disclaimer
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.