Liao and Arika (Child support)

[2020] AATA 4916

Liao and Arika (Child support) [2020] AATA 4916 (7 September 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/MC019653

APPLICANT:  Mr Liao

OTHER PARTIES:  Child Support Registrar

Ms Arika

TRIBUNAL:Member P Noonan

DECISION DATE:  7 September 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – non-agency payment - whether payment made in lieu of child support - intention of both parents not established – conditions for consideration as prescribed payments not met - 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. Mr Liao and Ms Arika are the parents of two children who are the subjects of a child support assessment. Mr Liao is the parent liable to pay child support to Ms Arika.

2. On 21 December 2019 The Child Support Registrar (the Registrar) decided to refuse Mr Liao’s application for cash payments totalling $4,390 he claimed to have made to Ms Arika to be credited towards his child support liability. On 9 January 2020 Mr Liao objected to this decision. On 21 April 2020 an objections officer disallowed his objection.

3. On 2 July 2020 Mr Liao applied to this tribunal for a review of the objections officer’s decision. On 7 September 2020 the tribunal conducted a hearing. Both Mr Liao and Ms Arika spoke to the tribunal by conference telephone and gave evidence on affirmation.

CONSIDERATION

1. The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (“the Act”) and the Child Support (Registration and Collection) Regulations 2018 (“the Regulations”).

2. Section 71A of the Act states that if a payer makes a payment to a third party in satisfaction of a liability and it is intended by both to be in complete or partial satisfaction of the payer's child support liability, the amount can be credited against the payer's liability as a non-agency payment.

3. Mr Liao submitted that he has made cash payments to Ms Arika totalling $4,390 and he had a verbal agreement with Ms Arika that these payments were to be in lieu of child support. He submitted that he understood the money was for essential items such as food and children’s schoolbooks, clothes and food. He submitted that it was illogical that he would transfer such a large sum of money to Ms Arika’s bank account without having an agreement with her that it would be in lieu of child support as it is a lot of money relative to his income.

4. Ms Arika informed the tribunal that she does not accept that these payments were made to her in lieu of child support. She informed the tribunal that the cash payments were made to her for things such as contributing to the purchase of children’s phones and for general spending. She has very little money and pays for all essential items associated with the children herself and from child support payments, of which she noted she receives very little.

5. It is clear from the evidence in the Registrar’s documents and the evidence at hearing that Ms Arika has always maintained that she never agreed that the cash payments subject to this review and made to her by Mr Liao, would be credited against his child support liability. Given this consistent stance from Ms Arika, and in the absence of any documented agreement or correspondence stating or indicating otherwise, the tribunal is satisfied that it is reasonable to conclude that Ms Arika never intended for these cash payments made to her to be credited against Mr Liao’s child support liability.

6. Section 71C of the Act also allows for some non-agency payments to be credited and it is not necessary for there to be mutual intention between the parties. To be credited under this section of the Act, the payments need to be one of the types of payments prescribed under the Act and the Regulations. Section 19 of the Regulations sets out the type of payments that may be accepted:

   19  Specified payments

   For the purposes of paragraph 71C(1)(b) of the Act, payments of the following kinds in relation to an enforceable maintenance liability are specified:

   (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.

7. In this case there are no receipts with respect to the payments made that would provide evidence of what the money transferred was actually spent on. Ms Arika indicated that the cash payments were largely spent on the children’s personal items such as phones. Without further detailed evidence as to what the claimed non-agency payments were actually spent on the tribunal is unable to find that section 71C of the Act  is enlivened. The tribunal discussed this with the parties and Mr Liao informed the tribunal that he is now aware of the importance of obtaining a written agreement with respect to the intent of any future cash payments he makes to Ms Arika or of obtaining and retaining receipts with respect to any other direct payments he makes with respect to payments of the kind set out under the Regulations.

1. There are no other relevant aspects of the legislation to consider in this matter. Given the above considerations the tribunal is satisfied that the correct decision in this matter is to affirm the decision under review.

DECISION

The decision under review is affirmed.