Martinez and Bautista (Child support)

[2020] AATA 4290

Martinez and Bautista (Child support) [2020] AATA 4290 (9 July 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/MC019069

APPLICANT:  Mr Martinez

OTHER PARTIES:  Child Support Registrar

Ms Bautista

TRIBUNAL:Member J Longo

DECISION DATE:  9 July 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – non-agency payment – whether payment made to a third party in lieu of child support – intention of both parents – 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 application for review is about whether payments made by Mr Martinez should be credited as payment towards his child support liability.

2. Mr Martinez made payments totalling $220.98. On 5 March 2020 he applied to Services Australia – Child Support (the Department) to have these payments credited towards his child support liability.

3. On 9 March 2020 the Department refused to credit the amounts. On 17 March 2020 Mr Martinez objected to the Department’s decisions. On 15 May 2020 a departmental objections officer disallowed Mr Martinez’s objection and refused to credit the non-agency payments.

4. On 19 May 2020 Mr Martinez applied to the Administrative Appeals Tribunal (the tribunal) for review. On 9 July 2020 the tribunal conducted a hearing. Mr Martinez and Ms Bautista spoke to the tribunal via conference telephone and gave sworn evidence. The tribunal received documents (54 pages) provided by the Department. Copies of these documents were provided to both parties by the Department prior to the hearing.

CONSIDERATION

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

2. Mr Martinez and Ms Bautista confirmed that the collection of child support by the Department commenced on 22 July 2019. There is no dispute that Mr Martinez made payments as follows:

Date	Amount	Purpose
15 February 2020	$106	Clothes and Toys
15 February 2020	$114.98	Clothes and Toys

1. Mr Martinez stated that he provided evidence of these purchases to the Department, which included toys and clothing for his daughter. Mr Martinez stated that he never discussed with Ms Bautista these purchases because there is no communication between them. He stated that as he was having care of his daughter from March 2020, he needed to purchase these items for her because they were not being provided when she came into his care.

2. Mr Martinez confirmed that there was never any discussion regarding these purchases being in lieu of child support. He stated that the items were for general use, not school clothes, as his daughter was not of school age. Ms Bautista did not dispute that Mr Martinez purchased these items, but she stated that there was never any discussion that the purchases would be in lieu of child support.

3. The tribunal is not satisfied that Mr Martinez and Ms Bautista discussed these purchases and that they would be considered in lieu of child support. In the absence of evidence that there was any mutual intention by Mr Martinez and Ms Bautista that the payments would be credited against his child support liability, the tribunal cannot find that the payments were in lieu of child support. Accordingly, the tribunal cannot accept that the payments were intended by both Ms Bautista and Mr Martinez to be credited against Mr Martinez’s child support liability as non-agency payments under section 71A of the Act.

10.Section 71C of the Act also allows for some non-agency payments to be credited. It is not necessary for there to be a mutual intention between the parties that the payments are treated in this way. To be credited under section 71C, the payments need to be one of the types of payments prescribed under the Child Support (Registration and Collection) Regulations 2018 (the Regulations).

11.The Regulations prescribe the following payments that can be considered as non-agency payments:

·     child care costs for the child who is the subject of the enforceable maintenance liability;

·     fees charged by a school or preschool for that child;

·     amounts payable for uniforms and books required by a school or preschool for that child;

·     fees for essential medical and dental services for that child;

·     the payee’s share of amounts payable for the payee’s home; and

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

12.In addition to the payments being prescribed under the Regulations, the payer must have less than regular care of the children for the payments to meet the requirements under section 71C of the Act. In this case, based on the information recorded in the Department records of Mr Martinez and Ms Bautista ’s care, Mr Martinez had less than regular care of the children. However, the payments made by Mr Martinez do not meet the types of payments prescribed by the Regulations. The tribunal notes that some payments were for general children’s clothing and toys, which are not items considered under the Regulations. These purchases cannot be taken into account.

1. The tribunal therefore determines that the payments totalling $220.98 made by Mr Martinez cannot be credited as payment towards his child support liability as non-agency or prescribed non‑agency payments and therefore the decision of the Department is correct.

DECISION

The decision under review is affirmed.