Kruse and Andreas (Child support)

[2019] AATA 3849

Kruse and Andreas (Child support) [2019] AATA 3849 (25 June 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC015807

APPLICANT:  Mr Kruse

OTHER PARTIES:  Child Support Registrar

Ms Andreas

TRIBUNAL:Member H Schuster

DECISION DATE:  25 June 2019

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the non-agency payment of $157.50 made on 8 October 2018 be credited towards Mr Kruse’s child support liability pursuant to section 71A of the Child Support (Registration and Collection) Act 1988.  In respect to the other non-agency payments to which the decision relates, the decision is affirmed.

CATCHWORDS

CHILD SUPPORT – non-agency payment – whether payment made to a third party for swimming lessons is in lieu of child support – intention of both parents established – decision under review set aside and substituted

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. Mr Kruse and Ms Andreas are the parents of [Child 1] (born in 2007). Ms Andreas provides 72% care and Mr Kruse provides 28% care of [Child 1]. There has been a child support assessment in place since 10 February 2009. Mr Kruse is liable to pay child support to Ms Andreas through the Child Support Agency of the Department of Human Services (the Department).

2. In August, September and October 2018 Mr Kruse asked the Department to accredit certain payments made by him to third parties against his child support liability as non-agency payments (NAPs). More than one request was made in respect of some of the payments. A list of the payments which Mr Kruse asked to have credited is below:

Date of Payment	Amount	Type	Credited?
07/08/2018	$70	Childcare cost	Disallowed on 06/09/2018 and 29/10/18
10/08/2018	$19.50	Dental	Disallowed on 06/09/2018 and 29/10/18
15/08/2018	$124.33	Private health insurance	Disallowed on 06/09/2018 and 29/10/18
25/08/2018	$20	Haircut	Disallowed on 06/09/2018 and 29/10/18
29/08/2018	$70	Childcare cost	Disallowed on 06/09/2018 and 29/10/18
17/09/2018	$124.33	Private health insurance	Disallowed 29/10/18
08/10/2018	$157.50	Swimming lessons	Disallowed 29/10/18
15/10/2018	$124.33	Private health insurance	Disallowed 29/10/18

1. On 6 September 2018 the Department decided not to credit the payments made in August 2018. Mr Kruse later re-submitted applications to have those payments credited, and made new requests.

2. On 29 October 2018 the Department decided not to credit any of the payments listed above finding that there was no mutual intent that the payments be credited against Mr Kruse’s child support liability.

3. Mr Kruse objected to the decision. On 2 January 2019 a Department objections officer considered Mr Kruse’s evidence. Ms Andreas did not provide evidence. The objections officer found that there was no evidence of any mutual intention to have the payments made by Mr Kruse to be in lieu of child support. In addition, in relation to the childcare costs, it was found that as Mr Kruse had more than 14% care of [Child 1], these costs could not be treated as prescribed NAPs under section 71C of the Child Support (Registration and Collection) Act 1988 (the CSRC Act).

4. On 23 January 2019 Mr Kruse lodged an application for review of the decision with this Tribunal. The Tribunal heard the application on 8 April 2019. Mr Kruse and Ms Andreas both attended the hearing by conference telephone and gave their evidence under affirmations.  The Child Support Registrar did not attend and was not represented. The parties had access to papers provided by the Department, which were numbered from 1 to 336. The decision was deferred to allow the parties to provide further evidence. Mr Kruse provided documents numbered A1 to A25 to the Tribunal.

ISSUES

1. The Tribunal must determine whether any of the third party payments made by Mr Kruse to which the objection decision related can be credited against Mr Kruse’s child support liability.

CONSIDERATION

1. The law that applies to this application is found in the CSRC Act.

2. Section 71A of the CSRC Act provides that NAP, which is a payment made by the liable parent to a third party or the payee directly, may be credited against the payer’s child support liability if, amongst other things, it was the intention of the parties that the payment be regarded as child support.

3. At the hearing Mr Kruse advised that he no longer sought to have the payments for childcare costs, dental fees, a haircut and private health insurance credited as child support payments.

4. The only payment in dispute was therefore the amount of $157.50 paid on 8 October 2018 to Fitness First for [Child 1]’s swimming lessons.

5. Ms Andreas did not deny that she had previously agreed that the NAPs for swimming lessons in 2018 were to be treated as child support but argued that the $157.50 represented fees for [Child 1]’s swimming lessons which had already been credited in December 2018.

6. Mr Kruse did not deny that he had been credited with a NAP in December 2018 but contended it was a credit in relation to swimming lessons for Term 1 of 2019, while he  contended that the payment on 8 October 2018 represented swimming lessons in Term 4 of 2018.

7. The Tribunal after reviewing the available evidence found the following relevant facts:

   ·      On 3 September 2018 Fitness First issued an invoice for $157.50 for swimming lessons (Folio 138).

   ·      On 2 October 2018 Mr Kruse wrote to Ms Andreas, asking “Do you agree to accept $157.50 for swimming lessons with the CSA as a NAP?” In her return email on the same day Ms Andreas wrote “Yes I agree to this payment as a NAP with CSA along with the Brazilian JJ.” (Folio A25).

   ·      On 8 October 2018 Fitness First emailed Mr Kruse a receipt for that sum dated 8 October 2018 (Folio 135).

   ·      An invoice for $192.50 was issued by Fitness First on 20 November 2018. (Folio 206). It appears to have been attached to an email dated 21 November 2018 from the organisation about the opening of enrolments for term 1 of 2019.

   ·      On 7 December 2018 Ms Andreas emailed Mr Kruse, noting “Hi[Mr Kruse], As discussed yes I accept the full payment for swimming lessons being $192.50 for the full term of 11 weeks.” (Folio 207).

   ·      On 10 December 2018 Fitness First emailed Mr Kruse a receipt for payment of $192.50. (Folio 209).

   ·      On 24 December 2018 the payment of $192.50 made on 10 December 2018 was credited by the Department (Folio A9).

8. The Tribunal is satisfied on the evidence provided by Mr Kruse that the payments to Fitness First made on 8 October 2018 ($157.50) and 10 December 2018 ($192.50) are invoices for [Child 1]’s swimming lessons in Term 4, 2018 and Term 1, 2019 respectively and are therefore separate payments. 

9. Based on the emails of 2 October 2018 the Tribunal is satisfied that Ms Andreas agreed that the amount of $157.50 be credited as a NAP before the payments were made and this shows the parties had a mutual intention for the payment to be credited.

10. The Tribunal varies the decision under review and finds that the non-agency payment of $157.50 made on 8 October 2018 be credited towards Mr Kruse’s child support liability pursuant to section 71A of the CSRC Act.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the non-agency payment of $157.50 made on 8 October 2018 be credited towards Mr Kruse’s child support liability pursuant to section 71A of the Child Support (Registration and Collection) Act 1988.  In respect to the other non-agency payments to which the decision relates, the decision is affirmed.