Broadall and Burakevic (Child support)

[2024] AATA 4111

Broadall and Burakevic (Child support) [2024] AATA 4111 (11 September 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/CC028159

APPLICANT:  Miss Broadall

OTHER PARTIES:  Child Support Registrar

Mr Burakevic

TRIBUNAL:Member A Beckett

DECISION DATE:  11 September 2024

DECISION:

The decision under review is varied by replacing the amount of $1601.32 in unpaid child support in the opt-in arrears period with the amount of $1751.32.

CATCHWORDS 

CHILD SUPPORT – registration details – whether payments made during the opt-in arrears period were payments of child support – decision under review varied

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of theChild Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

1. Mr Burakevic and Miss Broadall are the parents of two children, born in August 2020 and March 2023, in respect of whom a child support assessment is in place. Under that assessment, Mr Burakevic has a liability to pay child support to Miss Broadall.

2. Prior to 8 January 2024, collection of child support was a matter for the parents. On that date, Miss Broadall requested that Services Australia – Child Support (Child Support) commence collection of child support on her behalf.

3. At that time, Child Support calculated an amount of $2551.32 in child support owed by Mr Burakevic as unpaid in relation to the period (the opt-in arrears period) of 8 October 2023 to 7 January 2024.

4. On 29 February 2024, Mr Burakevic objected to that decision. He argued that the amount of arrears identified for the opt-in arrears period was incorrect as it did not take into account payments of child support made to Miss Broadall in that period.

5. On 13 June 2024, the objections officer partly allowed Mr Burakevic’s objection. The objections officer found that Mr Burakevic had made payments to Miss Broadall of $950 and that the child support arrears during the opt-in period should therefore be reduced to $1601.32 for the period 8 October 2023 to 7 January 2024.

6. On 28 June 2024, Miss Broadall applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) for a review of the objections officer’s decision.

7. Mr Burakevic and Miss Broadall participated by telephone in the hearing convened by the Tribunal on 11 September 2024.

8. Child Support was not represented at the hearing but it provided a bundle of its relevant documents to Mr Burakevic, Miss Broadall and the Tribunal prior to the hearing.

ISSUES

1. The relevant legislation is the Child Support (Registration and Collection) Act 1988 (the Act).

2. The identification of an opt-in arrears period, and the enforceable liability for arrears in relation to that period, arises from an application made under subsection 28A(4) of the Act. The payee may request that child support be collected for a period prior to the registration of the case for collection by Child Support. Where the period requested is for the three months or less before the registration of the child support case, Child Support must accept the application.

CONSIDERATION

1. Neither the amount of the child support liability in respect of the three months prior to the application for Child Support to collect, nor the fact of various payments being made by Mr Burakevic to Miss Broadall, are in dispute.

2. In this review, the dispute is essentially factual and turns on whether payments Mr Burakevic made to Miss Broadall during the opt-in arrears period were payments of child support.

3. According to a Child Support file note on 9 February 2024, Mr Burakevic claimed that he made payments of $1050 to Miss Broadall as follows:

   ·     $100 on 16 October 2023

   ·     $200 on 2 November 2023

   ·     $200 on 15 November 2023

   ·     $200 on 23 November 2023

   ·     $100 on 4 December 2023

   ·     $250 on 19 December 2023.

4. During the investigation by the objections officer, Mr Burakevic provided screenshots of deposits by and payments to Miss Broadall in the period 14 September 2023 to 31 January 2024. However, the payments from Mr Burakevic to Miss Broadall in these records, while totalling $1050, are slightly different to those detailed in the above paragraph, as follows:

   ·     $100 on 16 October 2023

   ·     $200 on 16 November 2023 (payment 1295816E)

   ·     $200 on 16 November 2023 (payment 1517575E)

   ·     $200 on 23 November 2023

   ·     $100 on 4 December 2023

   ·     $250 on 19 December 2023.

5. Mr Burakevic said that he also made cash payments to Miss Broadall but acknowledges he has no way of proving this. Miss Broadall does not agree that any cash payments were made.

6. Miss Broadall submits that the payments made on 16 October 2023, 16 November 2023, 23 November 2023, 4 December 2023 and 19 December 2023 were not in lieu of child support but were either repaying money she had lent him, paying for Christmas shopping or for accessories for Mr Burakevic’s reptile cage. She states that she transferred money to Mr Burakevic on 18 October ($30 and $100), 29 November ($50), and 2 December 2023 ($150).

7. I accept that in the same period Miss Broadall transferred a total of $330 to Mr Burakevic.

8. The documents provided by Mr Burakevic confirm the payments by Miss Broadall to Mr Burakevic detailed in the previous paragraph. Miss Broadall provided transactions from her bank account in the period 5 October 2023 to 2 December 2023 as well as printouts of text messages between herself and Mr Burakevic.

9. The objections officer found that the payment records provided by Mr Burakevic showed the following payments, totalling $950:

   ·      $100 on 16 October 2023

   ·      $100 on 18 October 2023

   ·      $200 on 16 November 2023

   ·      $200 on 23 November 2023

   ·      $100 on 4 December 2023

   ·      $250 on 19 December 2023.

10. I find that this is incorrect as it misidentifies the payment of 18 October 2023 as a payment to Miss Broadall rather than a payment from her and it does not include the second payment of $200 made to Miss Broadall on 16 November 2023. I am satisfied by the two different payment identification numbers that these were two separate payments and not a duplicate copy of the same payment.

11. I find that the total amount paid by Mr Burakevic to Miss Broadall in the opt-in arrears period is $1050.

12. A number of the text messages provided by Miss Broadall are undated and many are redacted. This makes it difficult in some instances to determine the sequence in which they were sent. In addition, some relate to before the opt-in arrears period.

13. I accept from the bank records that in the opt-in arrears period Miss Broadall transferred a total of $330 to Mr Burakevic. The amount Miss Broadall states in the texts that she is owed is more than this as it includes purchases she made on behalf of Mr Burakevic on her credit card.

14. Miss Broadall states that none of the payments made to her were for child support. Effectively, she submits that Mr Burakevic owes the full amount of child support for the opt-in arrears period: $2551.32.

15. Various text messages on 18 and 19 December are demands by Miss Broadall that Mr Burakevic repay money he had borrowed from her. For example, the message from Miss Broadall dated 19 December at 12.48 pm states in part:

    I need you to repay the suit money back. $500 and the rest of the money you’ve borrowed and the smokes I had to pay for.

16. I find based on this evidence that as at 19 December 2023 Mr Burakevic had not repaid Miss Broadall for amounts she had lent him/paid on his behalf. Consequently, I do not accept that the payments made by Mr Burakevic to Miss Broadall prior to 19 December 2023 were such repayments.

17. On balance, I accept the alternative explanation that the payments made by Mr Burakevic to Miss Broadall in the opt-in arrears period prior to 19 December 2023 – $800 as per the payments listed in paragraph 14 – were payments that can be credited towards Mr Burakevic’s child support liability in that period.

18. On the basis of the evidence of the text messages, and the timing of this payment, I find that the payment made by Mr Burakevic to Miss Broadall of $250 on 19 December 2023 was a payment towards amounts that she had lent him/paid on his behalf. This means that this amount cannot be credited towards Mr Burakevic’s child support liability in the opt-in arrears period.

19. I find that:

    ·     during the opt-in arrears period, Mr Burakevic accrued a liability to pay child support in the amount of $2551.32;

    ·     $800 of the payments made to Miss Broadall by Mr Burakevic in that period are to be offset against this child support liability.

20. This reduces his child support liability in relation to the opt-in arrears period to $1751.32.

21. I have decided to vary the objections officer’s decision to replace the $1601.32 in unpaid child support in the opt-in arrears period with this amount.

DECISION

The Tribunal varies the decision under review by replacing the amount of $1601.32 in unpaid child support in the opt-in arrears period with the amount of $1751.32.