Cabello and Cabello (Child support)

[2020] AATA 5562

Cabello and Cabello (Child support) [2020] AATA 5562 (5 November 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/AC019966

APPLICANT:  Ms Cabello

OTHER PARTIES:  Child Support Registrar

Mr Cabello

TRIBUNAL:Member Y Webb

DECISION DATE:  5 November 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – non-agency payment – whether payment made to a third party in lieu of child support – intention of both parents – decision under review affirmed

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 the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

1. This review is about whether payments made by Mr Cabello should be accepted and credited as non-agency payments (NAPs) against Mr Cabello’s child support liability.

2. This review relates to the two children (the children) of Ms Cabello and Mr Cabello.  The children are aged eight and six years old. For child support purposes the children are recorded as being in the 100% care of Ms Cabello.

3. The child support case was registered on 8 January 2019 and has been collectable by the Department of Human Services (Child Support Agency) since that date.

4. On 2 April 2020 Mr Cabello contacted the Child Support Agency to request that purchases which he funded and payments which he made (NAPs) totalling $1,249.66 be credited against his child support liability.  The details of the requested NAPs were:

Description	Amount
Child care payments (relating to period January 2020-March 2020)	$880.00
Children’s medicine (purchased on 21 February 2020)	$49.46
Medicine for Ms Cabello (purchased on 24 February 2020)	$15.20
Phone transfer costs (paid on 20 March 2020)	$305.00

1. On 6 May 2020 Ms Cabello informed a Child Support Agency officer that she agreed that the child care payments were in lieu of child support but she did not agree with the other payments being counted as child support. 

2. On 6 May 2019 a delegate of the Registrar decided that Mr Cabello’s claim would be partially allowed.  The Child Support Agency credited the child care payments but the medicines and phone transfer costs were refused on the basis that there was no mutual intention that the payments would count towards child support.

3. On 27 May 2020 Mr Cabello objected to the decision not to credit the two medicine payments and the phone transfer costs on the basis that Ms Cabello had agreed that the payments for the medicines and phone transfer costs would be deducted from his child support liability and he had provided evidence in support of his claim.

4. On 22 September 2020 an objections officer of the Child Support Agency allowed Mr Cabello’s objection.

5. On 30 September 2020, Ms Cabello requested a review by the Administrative Appeals Tribunal (the Tribunal).

6. Both parents attended the hearing on 5 November 2020 by way of a telephone conference and both gave sworn evidence.

7. The Tribunal received a bundle of relevant papers from the Child Support Agency and these were marked as Exhibit C1.

ISSUES

1. The issues for the Tribunal to determine are:

   (i)   whether Mr Cabello purchased items/made payments during an enforceable maintenance liability period and if so, the amount of those payments;

   (ii)     whether there was agreement between Ms Cabello and Mr Cabello that the payments were intended to be credited against Mr Cabello’s child support liability.

CONSIDERATION

1. The legislation relevant to this decision is contained in the Child Support (Registration and Collection) Act 1988 (the Act).

2. When the Child Support Agency registers a child support liability for collection, the amounts payable become a debt to the Commonwealth and are payable to the Child Support Registrar pursuant to section 30 of the Act.In some circumstances the Child Support Agency may credit payments made directly to a payee or to a third party against a child support liability that is registered for collection by the Child Support Agency if they were intended as child support.  The Child Support Agency may also credit the value of non-cash payments or the provision of services in the same way.  These credits are referred to as NAPs and the relevant provisions are found in sections 71, 71AA, 71A, 71B, 71C and 71D of the Act.

3. Of relevance in this review is section 71A of the Act.  It relevantly provides (in summary) that a NAP can be accepted in the following circumstances:

   ·      the amount has actually been paid or transferred; and

   ·      the payment was made in respect of an enforceable maintenance liability; and

   ·      at the time that the payment was made it was mutually agreed by the payer and the payee that the payment was intended to count as child support.

4. Central to the crediting of payments under section 71A of the Act is that the payments were intended by both the payee (Ms Cabello) and the payer (Mr Cabello) to be payments to be credited against Mr Cabello’s child support liability.  If that common intention is present, 100% of the payments can be so credited. 

5. During the objection process, and reiterated at the hearing, Ms Cabello stated that she no longer wished to challenge the claim that Mr Cabello made in relation to the medicine for the children (an amount of $49.46).  She stated that she accepts that there was a mutual intention that this amount would be credited against Mr Cabello’s child support liability. The Tribunal finds that the amount of $49.46 is no longer in dispute.

6. During the objection process Ms Cabello told the Child Support Agency that she repaid Mr Cabello the $15.20 which he paid for her medication.  However, at the hearing Ms Cabello stated that she no longer wished to pursue the issue of the $15.20 for her medication and the Tribunal therefore finds that the amount of $15.20 is no longer in dispute.

7. Ms Cabello strongly asserted, however, that she had not intended that the amount of $305.00 should be in lieu of child support.  Ms Cabello stated that Mr Cabello incurred a bill in his own name of $305.00 when he terminated the contract with [Phone services provider].  She stated that Mr Cabello had a contract in his name with [Phone services provider] for two phones: one was for Mr Cabello and one was for her.  She stated that after the divorce he wanted to separate their arrangements. He wanted each of them to be responsible for their own phone. Ms Cabello stated that she wanted to retain her phone number if she signed up with a new provider. To retain her phone number [Phone services provider]’s process was that it issued a code which was operative for a month so that she could make arrangements with another provider and retain her phone number.  She stated that Mr Cabello informed her that there was a fee of $305.00 to break the contract and retain her number.

8. Mr Cabello stated that the phone contract with [Phone services provider] did not expire until February 2021.  He agreed that the contract covered both his and Ms Cabello’s mobile phones.  He stated that the reason that he wanted them to have separate phones was that frequently the children were using so much data through Ms Cabello’s phone that they were exceeding their limit, which incurred additional charges.  He stated that in order for Ms Cabello to retain her phone number there was a fee. [Phone services provider] would not release the number until the fee was paid.

9. Mr Cabello provided a screen shot of a text message from Ms Cabello to him on 20 March 2020.  The message states:

   “The [Mobile phone] remaining amount of $305 can be authorised for Child Support Payment. [Ms Cabello].”

10. Ms Cabello agreed that she sent the text message to Mr Cabello as above but she stated that there had been a “cut and paste” of her message.  Mr Cabello strongly denied any “cutting and pasting”.  He stated that it was a screen shot of her message so there was no question of any “cutting and pasting”.  Ms Cabello stated that later that evening she sent a further text message to Mr Cabello which stated that she was coerced into agreeing that the $305 would be in lieu of child support because unless she agreed she would not be able to retain her existing phone number.

11. Mr Cabello strongly denied that there was any coercion on his part.  He stated that [Phone services provider] would not release Ms Cabello’s number until the $305 was paid.  He paid the amount but Ms Cabello agreed that the amount was in lieu of child support.

12. The Tribunal is satisfied that the screen shot of the text message from Ms Cabello provided by Mr Cabello had not been adapted or modified.  Ms Cabello stated that in relation to coercion she was told by Mr Cabello that if she did not allow the payment to be counted in lieu of child support he would not provide the code from [Phone services provider] which would allow her to retain her existing phone number.  The Tribunal asked Ms Cabello why she did not abandon her existing phone number and avoid issues relating to whether the payment was in lieu of child support.  Ms Cabello stated that it was important for her to retain her existing phone number because she had a small business and wanted to keep the same phone number.

13. The Tribunal is satisfied that the text message of 20 March 2020 from Ms Cabello to Mr Cabello is genuine and that it verifies that Ms Cabello at that time agreed that the $305 paid by Mr Cabello in relation to the phone transfer was authorised by her to be a payment which could be credited against Mr Cabello’s child support liability. 

14. The Tribunal concludes therefore that it agrees with the decision of the objections officer.

DECISION

The decision under review is affirmed.