Czachurski and Bejenaru (Child support)

[2025] ARTA 931

Czachurski and Bejenaru (Child support) [2025] ARTA 931 (22 May 2025)

Applicant/s:  Mr Czachurski

Respondent:  Child Support Registrar    

Other Parties:       Ms Bejenaru

Tribunal Number:   2024/SC029076 

Tribunal:  Member J Moir

Place:Sydney

Date:22 May 2025

Decision:The Tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – non-agency payments – court consent orders to share costs equally – medical appointments and sports and music lessons – father recently assessed to pay child support – previous amounts paid by mother – no mutual intention – 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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.

Statement of Reasons

BACKGROUND

1. Mr Czachurski and Ms Bejenaru are the parents of [the child].  Services Australia – Child Support (Child Support) registered a child support assessment for [the child] on14 May 2023, and any child support liability has been registered for collection since that date.  At all relevant times, [the child] has been recorded to be in the care of each parent 50% of the time.  At the time relevant to this review, Mr Czachurski was assessed to pay child support to Ms Bejenaru.

2. The parents have consent orders from the Federal Circuit Court (undated) in relation to the parenting arrangements for [the child] and their agreement regarding the payment of certain expenses for him.

3. On 1 August 2024 Mr Czachurski made a claim to Child Support  for payments he had made to third parties for psychology appointments, a cardiologist appointment, [sport 1] lesson and a [music] lesson, to be credited against his child support liability. 

4. Ms Bejenaru agreed only to the [music] lesson being credited in lieu of child support. She did not agree that the other payments should be credited in this way.

5. On 15 August 2024 Child Support determined that the payment for the [music] lessons was a non-agency payment and this was credited against Mr Czachurski’s child support liability.  However the other payments he had claimed were not credited because the parents did not mutually intend for this to occur.

6. Mr Czachurski objected to this decision on 3 September 2024 and on 11 December 2024 an objections officer disallowed his objection.

7. Mr Czachurski asked this Tribunal to review this decision on 24 December 2024. A hearing was scheduled for 2 May 2025, but was adjourned on Mr Czachurski’s request.  The hearing was rescheduled and conducted on 16 May 2025 and Mr Czachurski and Ms Bejenaru participated by telephone and gave evidence under affirmation.  The Tribunal was assisted by a [Language] speaking interpreter, who also gave an affirmation in relation to their duties.  The Child Support Registrar did not attend the hearing. In addition to the parents’ evidence, the Tribunal had regard to the documents provided by Child Support (numbered 1-151), a copy of which had been sent to the parties.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (the Act).

2. When a child support liability is registered under the Act for collection, the amount payable is a debt due to the Commonwealth and must be paid to the Child Support Agency, not to the payee.

10.Sections 71, 71A or 71C of the Act provide for Child Support to credit payments made directly to a payee or to a third party against a child support liability that is registered for collection (an enforceable maintenance liability). Credits under sections 71 and 71A are referred to as ‘non-agency payments’. 

11.Section 71 relates to payments made directly to the payee parent. 

12.Section 71A provides for payments to a third party to be credited. The amount paid by the payer to the third party must:

1. partially or completely satisfy a debt owed by the payee, the payer or both the payer and the payee (paragraph 71A(1)(a))
2. be intended by both the payer and the payee to be paid in complete or partial satisfaction of an amount payable under the liability in relation to the child support enforcement period (paragraph 71A(1)(c)). The “child support enforcement period” is the period during which a registered maintenance liability is enforceable under the Act (section 4 of the Act). 

13.Section 71C of the Act relates to payments referred to as “prescribed agency payments”  which may be credited in partial satisfaction of the child support liability, regardless of whether the parents agree. A number of specific criteria must be satisfied for this provision to apply, including that the paying parent has less than regular care of the child.  This is not the case for Mr Czachurski and Ms Bejenaru, as they each have 50% of the care for [the child].  On this basis, the provisions of section 71C cannot apply in their case. Any payments made to third parties, can only be credited against the child support liability under section 71A, which requires the parents’ agreement.

14.Section 71D of the Act provides a discretion for the Registrar not to credit an amount which would otherwise be credited.

15.The issue which arises in this case is:

·      Should the payments Mr Czachurski has claimed for [the child]’s psychologist, cardiologist and [sport 1] lessons be accepted as non-agency payments under section 71A of the Act?

CONSIDERATION

Issue 1

16.The parenting agreement includes, amongst other provisions, that the parents agree to equally share the cost of ongoing psychologist appointments for [the child].  Under a heading “shared expenses”, it also provides that from the date of the orders, the parents will equally share the cost of [the child]’s [sport 2] registration, school fees and other sports or extra-curricular activities that are mutually agreed.    

17.Mr Czachurski provided details of certain payments he made to third parties for expenses for [the child]. The amount he claimed to be credited against the child support liability was 50% of the total nett cost, as follows: psychologist appointments on 1 July 2024 and 15 July 2024 costing $324 (nett), cardiologist appointment on 30 July 2024 costing $86 (nett), [music] lesson on 21 July 2024 costing $27.50 and [sport 1] class on 26 July 2024 costing $26.00. With Ms Bejenaru’s agreement, the [music] lesson was accepted, leaving the remaining items, which totalled $436.  At the hearing Mr Czachurski said there was an additional psychologist appointment that he had not yet claimed.

18.Mr Czachurski told the Tribunal that he and Ms Bejenaru had agreed to each pay 50% of [the child]’s psychologist visits.  Despite this, he had paid for all of the appointments except the appointment that Ms Bejenaru had attended on her own. He had been prepared to pay 100% of the expenses for [the child]’s psychologist and extracurricular activities because this was of benefit to [the child]. However this changed when he was assessed to pay child support for [the child]. He said that Child Support had misinterpreted his taxable income and he did not agree that he should been required to pay child support. He recognised that this was not a matter that was before the Tribunal for this review and expressed he would pursue it with Child Support.

19.Nevertheless because of this, he was assessed to pay child support and he believes it is unfair for him to pay both child support and 100% of the cost for [the child]’s extracurricular activities. The Court Orders make it clear that Ms Bejenaru is responsible for 50% of the psychology appointments, but he paid it all and Ms Bejenaru has not been willing to reimburse him for the cost that he had paid in full.  On this basis, his payment of her share should be credited against his child support liability.  

20.He said that Ms Bejenaru had arranged for a referral from a GP for [the child] to see the cardiologist, but that despite this he was the one who ended up taking [the child] to the appointment and paying the bill.  He acknowledged that there was no specific agreement in relation to this expense but had presumed that he and Ms Bejenaru would each pay 50% of the bill.  Ms Bejenaru has not reimbursed him for her share, and again, he believes it is fair that his payment of her share should be credited against his child support liability.

21.Mr Czachurski said that it is important for [the child] to learn how to [do sport 1] and that he has paid all of [the child]'s [sport 1] lessons since he was an infant. Again he only sought to share these expenses with Ms Bejenaru once he was required to also pay child support. He  enrolled [the child] in [sport 3] and [music] lessons and recognised that he had done this without Ms Bejenaru’s agreement. However, he said that it is very difficult to get Ms Bejenaru to agree to any extracurricular activities and he considered that it was in [the child]’s best interests for him to participate in these activities. Because of this, he believes that half of these expenses should be covered by Ms Bejenaru, and this should be done by crediting it against his child support liability. Mr Czachurski said that [the child] is no longer doing either [sport 3] or [music].

22.Ms Bejenaru told the Tribunal that she did not agree that the payments claimed by Mr Czachurski should be credited against the child support liability.  She agreed that she had agreed to pay half of the psychologist appointments, and said that she had paid for one, which she attended on her own.  She had to cancel two other appointments she was going to take [the child] to, because she had to travel overseas unexpectedly. She said that whilst she was overseas, Mr Czachurski advised Child Support and Centrelink that [the child] was in his care 100% of the time, and received “her” payments.  This was her explanation for why she did not agree with crediting her share of the psychologist expense against the child support liability.

23.Ms Bejenaru agreed that Mr Czachurski had paid the cardiologist, but said that she had previously paid for an appointment with a paediatric surgeon and a nutritionist, without asking Mr Czachurski to contribute.  She said that Mr Czachurski enrolled [the child] in extracurricular activities without her agreement, and that these are not affordable for her.  She does not agree that she should have to pay 50% of these and does not agree that the amounts he claimed should be credited against the child support liability.  She also said that under the current assessment, she is the paying parent.

24.The Tribunal accepts that each of the amounts claimed were paid by Mr Czachurski, and were for [the child]’s benefit.  However, section 71A requires both that the amounts are paid at least in partial satisfaction of a debt owed by Ms Bejenaru, and that both Mr Czachurski and Ms Bejenaru intended that the amounts were to be paid at least in partial satisfaction of an amount payable under the child support liability. 

25.The Tribunal accepts that based on the parenting agreement, Ms Bejenaru agreed to pay 50% of [the child]’s psychologist appointments, and that arguably this is a debt she owes, satisfying paragraph 71A(1)(a).

26.However this is not the case with the other payments Mr Czachurski has claimed, whether or not he believes Ms Bejenaru should share the cost of these. These do not satisfy paragraph 71A(1)(a), and cannot be credited against the child support liability. 

27.Even if the psychologist fees are a debt Ms Bejenaru owes, there is no evidence that she and Mr Czachurski mutually intended that these be paid by Mr Czachurski in full or partial satisfaction of the child support liability.  Ms Bejenaru is clear that she does not agree that this should be credited against Mr Czachurski’s child support liability.  On this basis, paragraph 71A(1)(c) is not satisfied and the amounts claimed for payment of the psychologist fees cannot be credited against the child support liability.    

DECISION

The decision under review is affirmed.

Date of hearing: Friday, 16 May 2025