Gabrilovic and Gabrilovic (Child support)

[2020] AATA 5837

Gabrilovic and Gabrilovic (Child support) [2020] AATA 5837 (1 December 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/PC019862

APPLICANT:  Mr Gabrilovic

OTHER PARTIES:  Child Support Registrar 

Ms Gabrilovic         

TRIBUNAL:Member R King

DECISION DATE:  1 December 2020

DECISION:

The tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – non-agency payment – whether payment made to a third party in lieu of child support – intention of both parents – whether prescribed payments made during a period when the paying parent did not have at least regular care – 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. Mr Gabrilovic and Ms Gabrilovic are the parents of [Child 1], [Child 2] and [Child 3].  Mr Gabrilovic has been paying child support to Ms Gabrilovic under a registered assessment that had effect on 11 December 2019.  Until 22 March 2020, Mr Gabrilovic was recorded as having 14% of the care of the three children.  From 23 March 2020, Mr Gabrilovic was recorded as having 0% of their care.

2. On 21 April 2020, Mr Gabrilovic contacted the Child Support Agency (CSA) and advised that he wished to have a total of $21,951.94 credited to his child support liability in respect of payments he had made to Ms Gabrilovic or to third parties for the three children. The CSA contacted Ms Gabrilovic who advised that she had never intended that these payments should take the place of child support.  The CSA accepted Ms Gabrilovic’s evidence and, on 23 April 2020, declined to credit the sum of $21,951.94, in respect of Mr Gabrilovic’s child support liability.  The basis of this decision was that there was no mutual intent that these transfers should be treated as non-agency payments of child support.

3. On 14 May 2020, Mr Gabrilovic objected to the decision to reject these payments to Ms Gabrilovic or to third parties as non-agency payments of child support.  

4. On 10 September 2020, an objections officer partly allowed Mr Gabrilovic’s objection.  The objections officer found that some payment preceded the registration of child support and must be excluded for that reason.  The objections officer found that there was no mutual intent that any of the payments should take the place of child support payments.  This meant that payments could only be accepted if they fell into the category of prescribed payments and were made at a time when Mr Gabrilovic had less than regular care of the children.  The objections officer was satisfied that payments in the sum of $3,398.78 met these requirements and could be credited as prescribed non-agency payments.

5. On 15 September 2020 (less than 28 days after receiving the objection decision), Mr Gabrilovic applied to the tribunal for review.  

6. The tribunal conducted a hearing on 2 November 2020.  Mr Gabrilovic and Ms Gabrilovic both participated by conference telephone.  Both parties discussed the application with the tribunal and provided sworn evidence. 

CONSIDERATION

1. Mr Gabrilovic told the tribunal that he believed that there was a mutual agreement that all the payments he had sought to have credited, would take the place of child support that would otherwise be collected by the CSA.

2. Ms Gabrilovic told the tribunal that she never regarded the payments, whether made to her or to third parties by Mr Gabrilovic, as taking the place of any child support obligation. 

3. Mr Gabrilovic told the tribunal that he had not understood that prescribed payments could not be accepted when they were made during periods when he had regular care of the children.  He was unable, during the hearing, to specify the payments that were made after he ceased to have regular care but had not been accepted by the objections officer.  He asked the tribunal to defer a decision so that he could make submissions in this regard.

4. The tribunal agreed to defer a decision and accepted a submission from Mr Gabrilovic.  This submission was made available to Ms Gabrilovic.

Application of the law

1. The relevant provisions are contained in the Child Support (Registration and Collection) Act 1988 (“the Act”). The Child Support Guide contains detailed policy guidelines for CSA officers to use when applying the Act. The tribunal is not bound by these guidelines but, for the sake of consistency in decision making, the tribunal follows the guidelines, unless it would be clearly inconsistent with the proper application of the law to do so.

2. Under section 71 of the Act a child support payer may apply to the CSA for direct payments made to the payee or to a third party to be treated as payments received by the agency and credited to the payer’s child support liability. The CSA will only accept such an application if both the payer and the payee intended, at the time when the payments were made, that they be in complete or partial satisfaction of a child support liability (mutual intention).

3. Under section 71C of the Act certain payments can be accepted in the absence of mutual intention (specified payments). The specified payments are listed in section 19 of the Child Support (Registration and Collection) Regulations 2018 (the Regulations) as:

   (a)  child care costs for the child who is the subject of the enforceable maintenance  liability;

   (b)  fees charged by a school or preschool for that child;

   (c)  amounts payable for uniforms and books required by a school or preschool for that child;

   (d)  fees for essential medical and dental services for that child;

   (e)  the payee’s share of amounts payable for rent or a security bond for the payee’s home;

   (f)  the payee’s share of amounts payable for utilities, rates or body corporate charges for the payee’s home;

   (g)  the payee’s share of repayments on a loan that financed the payee’s home;

   (h)  costs to the payee of obtaining and running a motor vehicle, including repairs and standing costs.

4. Under paragraph 71C(1)(ba) specified payments cannot be accepted during periods when the payer has at least regular (14% or more) care of any of the children to which the administrative assessment applies.

5. The first issue before the tribunal is the intention of both parties.  In their evidence during the hearing, Mr Gabrilovic and Ms Gabrilovic disagreed as to whether there was an intention that some or all of the payments, in the record of payments submitted to the CSA by Mr Gabrilovic, were made in the place of child support.  Mr Gabrilovic did not provide any independent evidence of a prior agreement to either the objections officer or the tribunal.  In the absence of such evidence there is no basis for a finding that there was mutual intention with respect to these payments.  It follows that the tribunal can only consider specified payments that were made when Mr Gabrilovic did not have regular care of any of the children.

6. The objections officer allowed specified payments for utilities and school fees in the sum of $3,398.78.  The tribunal accepted a submission from Mr Gabrilovic listing payments he made to or on behalf of Ms Gabrilovic from 23 March 2020, when he ceased to have regular care of his three children.  The tribunal is reviewing a decision to reject a set of payments that Mr Gabrilovic lodged on 21 April 2020.  This means that the tribunal can consider specified payments made after 22 March 2020 that were included in his original claim.

7. The tribunal notes that Mr Gabrilovic’s submission was, for the most part, not specific with respect to the dates of payment.  Rather, most payments were specified by month rather than by date.  Most of the payments listed in Mr Gabrilovic’s submission appear to have been made after 21 April.  It is open to Mr Gabrilovic to submit these to the CSA for consideration as non-agency payments but they are not reviewable by this tribunal as no decision has been made and internally reviewed by the CSA with respect to these payments.  Furthermore, Mr Gabrilovic made no submission as to which of the listed payments he believes were rejected by the objections officer.

8. The tribunal is not satisfied that Mr Gabrilovic’s evidence allows a finding that the objections officer erred by rejecting specified payments that were made between 23 March 2020 and 21 April 2020.  The objection decision indicates that the objections officer turned his or her mind to the types of payment specified in the Regulations.  Mr Gabrilovic has not identified any specific payment that was wrongly rejected.

9. The tribunal accordingly affirms the decision of the objections officer.

DECISION

The tribunal affirms the decision under review.