Desi and Desi (Child support)

[2018] AATA 3792

Desi and Desi (Child support) [2018] AATA 3792 (26 July 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/AC014215

APPLICANT:  Mr Desi

OTHER PARTIES:  Child Support Registrar

Ms Desi

TRIBUNAL:Member Y Webb

DECISION DATE:  26 July 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS
Child support - Registration of child support liability to be collected by the department - Whether there were unpaid amounts in the three months arrears period - Certain payments were in lieu of child support - Unpaid amount correctly determined - Decision under review affirmed

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

BACKGROUND

1. This review is about the extent of arrears payable (if any) by Mr Desi as the liable parent.

2. Mr Desi and Ms Desi have two children aged 14 and 10 (the children).

3. The parents separated in or about September 2016.

4. Initially the parents elected not to have the Department of Human Services (Child Support Agency) collect child support in relation to the children.   In other words, the parents had a “private collect” arrangement regarding child support.

5. On 17 January 2018, Ms Desi contacted the Child Support Agency to request collection of child support by the Agency.  She also requested collection by the Agency of alleged unpaid amounts of child support totalling $3,027.54 for the three month period 17 October 2017 to 16 January 2018.  At that time, the care of the children was 86% to Ms Desi and 14% to Mr Desi.

6. The Child Support Agency decided that no payments had been made by Mr Desi to Ms Desi in the period between 17 October 2017 and 16 January 2018 (arrears period).  It made a decision to accept Ms Desi’s application for collection and her request for arrears as claimed.

7. On 9 February 2018 Mr Desi objected to that decision.  He contended that he had made purchases and payments for the children and that these amounts should be deducted from any arrears liability.  Mr Desi claimed that $1,473.13 should be deducted.  He asserted that he had spent these funds in accordance with an informal agreement between himself and Ms Desi.

8. Ms Desi accepted that a total of $244.49 of Mr Desi’s expenditure was intended to be in lieu of child support but she did not accept that the rest of the expenditure was ever intended to be in lieu of child support.

9. On 17 May 2018 an objections officer of the Child Support Agency partly allowed Mr Desi’s objection.  It accepted that purchases/payments to the value of $244.49 were intended to be in lieu of child support and determined that this amount should be credited against the total liability of $3,027.54 in the period 17 October 2017 to 16 January 2018 and therefore that Mr Desi was liable for an amount of $2,783.05 in this period.

10. On 30 May 2018 Mr Desi requested review by the Tribunal.  He and Ms Desi both attended the hearing on 26 July 2018 by way of telephone conference and both gave evidence on affirmation.

ISSUES

1. The issue which must be decided in this case is the amount of child support arrears, if any, Mr Desi is liable to pay.

CONSIDERATION

1. A payee can initially elect not to have a liability which arises from a child support assessment enforceable by the Child Support Agency under subsection 24A(2) of the Child Support (Registration and Collection) Act 1988 (the Act).  In other words, the child support is collected privately.

2. Section 25 of the Act states that if a payee who made an election under subsection 24A(2) applies at a later time to have the liability enforced by the Child Support Agency then the application must be accepted.

3. The Tribunal finds that Ms Desi applied for the liability to become enforceable on 17 January 2018.

4. If an application is made under section 25 of the Act, the payee may also apply for any unpaid amounts to be treated as arrears amounts and collected by the Child Support Agency (subsection 28A(3)).  If the specified period does not exceed three months, the Child Support Agency must grant the payee’s application (subsection 28A(4)) provided the child support liability remains unpaid.

5. The Tribunal finds that Ms Desi applied for arrears of three months to be collected.  Her application must, therefore, be granted.  The Child Support Agency determined, on objection, that an amount of $2,783.05 was the amount of the arrears liability and it is this amount that Mr Desi disputes.

6. Mr Desi asserted that he had made purchases and payments for the children and that these should be deducted from any arrears liability. For many of these purchases and payments Mr Desi provided receipts.  The receipts provided were for the following purchases:

   25 Nov 2017               Headset –Target  $79.00
   3 Dec 2017                Smiggles  $34.95
   3 Dec 2017                X-Box JB Hi-Fi  $288.89
   4 Dec 2017                Typo – rug  $49.99
   16 Dec 2017               City Bicycle  $404.10
   16 Dec 2017               Drake Supermarket  $10.37
   18 Dec 2017               Game – EB Games  $50.00
   28 Dec 2017               Food – Foodland  $42.95
   2 Jan 2018                Rashie –Intersport  $40.00
   2 Jan 2018                Rashie – Rebel  $24.49
   9 Jan 2018                Shoes – K Mart  $14.00
   
   

7. Mr Desi also provided hand-written notes detailing various purchases or payments which he contended he had made.  These notes included some items for which receipts were not provided which were as follows:

   23 Oct 2017               School camp fee  $160.00
   19 Nov 2017               Clothes  $28.00
   25 Nov 2017               Clothes – Target  $79.00
   28 Dec 2017               Clothing  $48.00
   28 Dec 2017               Drink bottle – Costco  $42.95
   3 Jan 2018                OSHC  $30.00
   10 Jan 2018                OSHC  $30.00
   10 Jan 2018                Food  $18.35

8. The Child Support Agency papers disclose that Mr Desi asserted that he had a private arrangement with Ms Desi that he would buy whatever the children needed rather than paying Ms Desi directly.  However, at the hearing Mr Desi stated that he had not actually discussed all of the individual items which he purchased with Ms Desi prior to purchasing them.

9. Ms Desi confirmed that she did not have discussions or negotiations with Mr Desi prior to any purchases he made.  She stated that prior to a recent court order she did have a private arrangement with Mr Desi but this is no longer feasible.  Ms Desi confirmed that she has not received any direct payments from Mr Desi in the period 17 October 2017 to 16 January 2018 and Mr Desi did not dispute this. 

10. Ms Desi considered the purchases and payments made by Mr Desi.  She did not dispute that he had made these payments.  She stated that she was prepared to accept that the school camp fee ($160), the two OSHC payments (totalling $60) and one rashie ($24.49) were payments in lieu of child support.  The value of these items totalled $244.49.

11. However, Ms Desi did not accept that any of the other purchases were intended as child support.  She contended that the food purchased was at times when the children were in Mr Desi’s care.  The headset, game, X-box, rug, bike and Smiggles item were all gifts from Mr Desi to the children for birthday or Christmas.  They were not joint presents from herself and Mr Desi. In relation to the remaining items, Ms Desi stated that she has no knowledge of these.  She rejected that any of these items were in lieu of child support.

12. The Tribunal has considered the purchases and payments made by Mr Desi in the relevant period and the statements of both parents regarding those payments and purchases.  With the exception of the purchases and payments which Ms Desi accepts as being in lieu of child support (a total of $244.49) the Tribunal finds that, because there was no mutual intention, the remaining payments and purchases by Mr Desi were not amounts in complete or partial satisfaction of an amount payable under an enforceable maintenance liability.

13. Hence, based on the evidence available, the Tribunal finds that during the three month arrears period from 17 October 2017 to 16 January 2018 Mr Desi paid child support in the amount of $244.49, this being the amount that Ms Desi stated she accepted was in lieu of child support.  Under the Act this amount must be deducted from the arrears.

14. The Child Support Agency has calculated that the total child support assessed from 17 October 2017 to 16 January 2018 was $3,027.54.  The Tribunal has considered the calculations and agrees that this amount is correct.  As the amount of child support paid by Mr Desi during this period was $244.49 the Tribunal is satisfied that $2,783.05 is payable by Mr Desi in the arrears period 17 October 2017 to 16 January 2018.

15. The Tribunal therefore concludes that the Child Support Agency’s decision to partly allow Mr Desi’s objection is correct.

DECISION

The decision under review is affirmed.