Abaid and Madia (Child support)

[2018] AATA 334

Abaid and Madia (Child support) [2018] AATA 334 (10 January 2018)

DIVISION:  Social Services & Child Support Division

REVIEW NUMBER:  2017/SC012859

APPLICANT:  Mr Abaid

OTHER PARTIES:  Child Support Registrar

Ms Madia

TRIBUNAL:  Ms J Cuthbert, Member

DECISION DATE:  10 January 2018

DECISION:

The decision under review is set aside and a decision is substituted that the amount of $280 is to be credited against Mr Abaid’s child support liability.

CATCHWORDS
Child Support – Non-agency payments – Payments for children’s expenses – Intention of both parents - Payment credited against child support liability – 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

ISSUE

1. This review is about whether certain payments can be credited against Mr Abaid’s child support liability.

BACKGROUND

1. Mr Abaid and Ms Madia are the parents of [Child 1] (born 2006) and [Child 2] (born 2008). Mr Abaid is the liable parent in a child support assessment made by the Department of Human Services – Child Support (the Department) which started on 12 January 2011. His liability under the assessment was registered for collection by the Department from 28 August 2012 to 5 April 2017. It has since become registered for collection by the Department from 16 May 2017. At all relevant times the child support assessment has been based on Mr Abaid having care percentages of 14% for [Child 1] and [Child 2].

2. On 9 May 2017 a decision was made to credit payments totalling $7,441.50 against Mr Abaid’s child support liability. On 18 May 2017 Mr Abaid asked the Department to credit further payments totalling more than $7,000. This included payments made to Ms Madia’s bank account as well as two payments of $1,558 for [dental] treatment for the children. A decision was made on 24 May 2017 to refuse to credit those payments.

3. Mr Abaid objected to that decision and his objection was disallowed on 5 September 2017. He was advised of the decision by letter dated 10 October 2017.

4. Mr Abaid lodged an application for a review of the objection decision with this tribunal on 8 November 2017.

5. Mr Abaid and Ms Madia both attended a hearing on 10 January 2017 by telephone. The Child Support Registrar was not represented at the hearing. In addition to oral evidence the tribunal considered documents provided by the Department (folios 1 to 94).

STATUTORY FRAMEWORK

1. The Department (acting for the Child Support Registrar) can credit payments made by a liable parent to a third party against an enforceable maintenance liability.

2. The term “enforceable maintenance liability” is defined in subsection 4(1) of the Child Support (Registration and Collection) Act 1988 (the Act) as a registered maintenance liability. A “registered maintenance liability” is defined by subsection 4(1) as one that is registrable under sections 17 and 18 of the Act. This includes a child support liability that arises under a child support assessment that is registered for collection by the Department.

3. Section 71 of the Act states that an amount paid by a payer to a payee can be credited provided there is an enforceable maintenance liability and both parents intend that the payment is in satisfaction of child support payable under that liability.

10.  Section 71A of the Act states that an amount paid by a payer to a third party can be credited provided there is an enforceable maintenance liability and both parents intend that the payment is in satisfaction of child support payable under that liability.

11. Section 71C of the Act allows for the gradual crediting of payments (up to 30% of the child support liability for a period) where they fall into categories set out in regulation 5D of the Child Support (Registration and Collection) Regulations 1988 regardless of the parents’ intentions. However, section 71C of the Act requires that the liable parent has less than “regular care” of any of the children of the assessment, both at the time the payment was made and when the decision is made to credit the amount. The term “regular care” is defined in subsection 5(2) of the Child Support (Assessment) Act 1989 as a percentage of care of at least 14%, but less than 35%. The credit must not exceed 30% of the amount payable in the payment period. Excess amounts may be credited against the liability for a later payment period if the criteria are met at that time. No amount can be credited unless the payer has paid the remaining 70% of the liability.

12. Sections 71, 71A and 71C are subject to section 71D of the Act which provides that the Registrar may refuse to credit an amount under that section if satisfied that, in the circumstances of the particular case, the amount ought not to be credited.

CONSIDERATION

13.  At the hearing Mr Abaid told the tribunal that he was concerned only about three payments he made directly to Ms Madia’s bank account:

19 April 2017   $303;

7 April 2017     $500; and

18 July 2016    $280.

14.  He said that the two later payments were made for the costs of school uniforms, tutoring and [extra-curricular] lessons for the children at Ms Madia’s request. He said that he no longer had evidence of what the payment in July 2016 was for, but that he paid 50% of the cost of school uniforms and extra-curricular activities, etc. He said that the amount he paid Ms Madia fluctuated in accordance with the children’s expenses. He noted that the Department had overlooked the payment of 18 July 2016 when making its decisions.

15.  Ms Madia does not dispute Mr Abaid’s evidence that the three payments were made to her bank account, or that the payment of 18 July 2016 had been overlooked. She said that Mr Abaid paid 50% of the extra-curricular expenses for the children. She said that while it really wasn’t providing for the children’s basic support (food and clothing, etc.) she had advised the Department that other similar payments should be credited against Mr Abaid’s child support liability.

16.  The tribunal finds that for the period 27 August 2012 to 5 April 2017 and from 16 May 2017 Mr Abaid was the liable parent and Ms Madia was the payee in a child support assessment which was an enforceable maintenance liability. As there was no enforceable maintenance liability on 7 and 19 April 2017 those payments made cannot be credited against Mr Abaid’s child support liability.

17. The tribunal finds that payments made on 18 July 2016 cannot be credited against Mr Abaid’s child support liability under section 71C of the Act as there is no evidence that the payments were made for prescribed reasons and the child support assessment has been based on Mr Abaid having regular care of both children. The payment therefore can only be credited under section 71 of the Act if both parents intended that they were made in respect of child support.

18. The tribunal is satisfied that for an extended period from 2012 to April 2017 Mr Abaid made various payments to Ms Madia’s account in respect of the children’s expenses and they both intended that this was in lieu of child support payments. For that reason, the tribunal finds that the payment of $280 made on 18 July 2016 can be credited against Mr Abaid’s child support liability under section 71 of the Act.

DECISION

The decision under review is set aside and a decision is substituted that the amount of $280 is to be credited against Mr Abaid’s child support liability.