Trivedi and Trivedi (Child support)
[2024] ARTA 215
•5 December 2024
Trivedi and Trivedi (Child support) [2024] ARTA 215 (5 December 2024)
Applicant/s: Mr Trivedi
Other Parties: Child Support Registrar
Ms Trivedi
Tribunal Numbers: 2024/MC028292, 2024/MC028352, 2024/MC028353
Tribunal:Member Mr J Nalpantidis
Place:Melbourne
Date:5 December 2024
Decision:The Tribunal affirms the decisions under review.
CATCHWORDS
CHILD SUPPORT – non-agency payments – payments accepted in part – remaining payments made before enforceable maintenance liability in place or no mutual intention – intervention order in place preventing direct communication – 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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.
Statement of Reasons
BACKGROUND
This application for review is about whether payments made by Mr Trivedi should be credited as payment towards his child support liability.
There is no dispute that Mr Trivedi and Ms Trivedi have had a registered child support assessment for the children, [Child 1] (born on 27 June 2010) and [Child 2] (born on 26 January 2016) (the children) since 22 March 2024 and Mr Trivedi had less that regular care of the children.
Mr Trivedi made payments for the following amounts: $364.20 for a water bill for the former matrimonial home, $237.20 for an internet bill for the former matrimonial home, $992.60 for school tuition fees for the children and $1,594.26 for [sport] lessons for the children. On 6 May 2024, Mr Trivedi applied to Services Australia – Child Support (Child Support) for these payments to be credited towards his child support liability, as a non‑agency payment (NAP).
On 7 May 2024, Child Support decided to refuse to credit $364.20 for a water bill, $237.20 for an internet bill, $992.60 for school tuition and $784.26 from the total amount claimed of $1,594.26 for [sport] lessons, as a NAP, noting an amount of $810 for [sport] lessons was credited as aa NAP.
On 8 May 2024, Mr Trivedi objected to Child Support’s decision. On 22 July 2024, a Child Support objections officer partly allowed Mr Trivedi’s objection, and credited $182.10 (half the water bill) as a NAP (Tribunal Number 2024/MC028292).
On 7 May 2024, Mr Trivedi applied to Child Support to have payments totalling $1,532 for home insurance on 27 March 2024 and $1,861.25 for council rates on 27 March 2024. to be credited towards his child support liability as a NAP.
On 9 May 2024, Child Support decided to refuse to credit $1,532 for home insurance paid on 27 March 2024 and refused to credit an amount of $1,396.25 from the total amount claimed of $1,861.25 for council rates paid on 27 March 2024, noting an amount of $465 was credited as a prescribed NAP. On 10 May 2024, Mr Trivedi objected to Child Support’s decision. On 25 July 2024, a Child Support objections officer disallowed Mr Trivedi’s objection (Tribunal Number 2024/MC028352).
On 12 June 2024, Mr Trivedi applied to Child Support for an amount of $5,145.74 being a refund of child care subsidy (CCS) as a direct payment to Ms Trivedi deposited into a joint account held by Mr Trivedi and Ms Trivedi, on 4 June 2024, to be credited towards his child support liability as a NAP.
On 14 June 2024, Child Support decided to refuse to credit the amount as a NAP. On 17 June 2024, Mr Trivedi objected to Child Support’s decision. On 19 July 2024, a Child Support objections officer disallowed Mr Trivedi’s objection (Tribunal Number 2024/MC028353).
On 23 July 2024, Mr Trivedi applied to the Administrative Appeals Tribunal (the AAT) for review.
From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
On 28 November 2024, the Tribunal conducted a hearing at which Mr Trivedi gave sworn evidence in person and Ms Trivedi gave sworn evidence by MS Teams audio. The Tribunal had before it documents provided by Centrelink from Mr Trivedi’s Child Support paper and computer files (340 pages for each of the Tribunal Numbers 2024/MC028292, 2024/MC028352, 2024/MC028353). Copies of these documents were provided to both parties by Child Support prior to the hearing. Prior to the hearing Mr Trivedi provided further material (A1 to A31) and at the hearing he provided additional material (A32 to A61); a copy of this material was provided to Ms Trivedi and Child Support.
On 5 December 2024, Ms Trivedi provided further information in relation to setting up her home internet account with [Provider] (3 pages); a copy was provided to Child Support and Mr Trivedi.
On 5 December 2024, the Tribunal determined the matter.
CONSIDERATION
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 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 NAP.
Mr Trivedi applied to Child Support for various amounts to be credited to his child support liability as ordinary NAPs or prescribed NAPs. Firstly, on 6 May 2024, Mr Trivedi claimed amounts of $364.20 for a water bill, $237.20 for an internet bill, $992.60 for school tuition, and $1,594.26 for [sport] lessons (totalling $3,188.26), to be credited; secondly, on 7 May 2024, Mr Trivedi claimed $1,532 for home insurance paid on 27 March 2024 and $1,861.25 for council rates paid on 27 March 2024 (totalling $3,393.25) to be credited; and thirdly, on 12 June 2024, Mr Trivedi claimed $5,145.74 for a CCS refund to be credited.
The child support material shows that Mr Trivedi had a child support maintenance liability of $3,861.99 when he applied for various costs to be credited as NAPs or prescribed NAPs.
Child Support accepted the water bill (of $364.20) was for the former matrimonial home and allowed 50% of the claimed cost as a prescribed NAP.
Child Support refused the claim for the internet bill ($237.20) as an ordinary NAP and prescribed NAP (house utilities) because it determined there was no mutual intent between the parties and no evidence was provided in relation to the home telephone portion of the internet package.
Child Support refused the claim for school tuition fees as there was no evidence that these fees were paid.
In relation to the claimed cost of $1,594.26 for [sport] lessons, Child Support allowed $810.26 as it accepted there was mutual intent in relation to $525 for one child and $285 for the other child, totalling $810 as an ordinary NAP.
Child Support refused to credit the payment of $1,532 for home insurance, because Mr Trivedi was the sole owner and the insurance policy was solely in his name, and the payment made on 2 February 2024 which was before the child support assessment on 22 March 2024. Child Support allowed $465 of the claimed $1,861.25 for council rates paid on 27 March 2024 as Ms Trivedi agreed to that amount being credited against Mr Trivedi’s child support liability, not the whole amount. The amount of $465 was attributed to the period April 2024 to June 2024, when Ms Trivedi resided in the former matrimonial home with the children, without Mr Trivedi.
Child Support refused to credit the claimed CCS refund of $5,145.74 paid by Centrelink on 4 June 2024 in relation to past period CCS for one child who attended child care from 2019 to 2021. There is no dispute the CCS credit was paid into a joint bank account on 4 June 2024 held by Mr Trivedi and Ms Trivedi. Child Support determined there was no mutual intention that the payment was in lieu of child support, there was no evidence that the payment was paid directly by Centrelink or Mr Trivedi to Ms Trivedi, and Mr Trivedi was the primary claiming parent for CCS paid by Centrelink and overpaid CCS was repaid to the claiming parent. It was noted that Mr Trivedi withdrew all funds in the joint account ($36,000 inclusive of $5,145).
CCS refund of $5,145
Mr Trivedi’s evidence and contentions
Mr Trivedi referred the Tribunal to a joint bank account statement of an account held by the parties, which shows that the CCS refund of $5,145.74 was paid in three amounts of $205.06, $2,177.66 and $2,763.02 on 4 June 2024. He told the Tribunal that the payments were for credited CCS for the financial years 2019/2020, 2020/2021 and 2021/2022. He told the Tribunal that they ‘overpaid’ child care at the time and were paid a lower child care rebate than they were entitled to, so after Centrelink reconciled their entitlements, they calculated the refund amount of $5,145.74 for the three financial years 2020, 2021 and 2022, clearly well before the child support assessment. The account statement shows that on 6 June 2024, the amount of $5,145.74 was transferred from the joint account to account number …6029, which was Ms Trivedi’s account. He submitted that this shows the payment was made to Ms Trivedi. Mr Trivedi referred to an email dated 30 November 2023 which confirms the parties separated on 8 November 2023, and on the same day, Ms Trivedi had transferred $5,000 from the joint account held by the parties into her personal account …6029. It was also confirmed by Ms Trivedi’s lawyers that Ms Trivedi withdrew $15,000 from the joint account.
Mr Trivedi told the Tribunal that he made a mistake claiming the full refund amount of $5,145.74 to be credited to his child support liability. He did not dispute that the CCS claim was in his name, however, essentially his share was 50% of the amount and 50% was attributed to Ms Trivedi. He corrected his mistake, submitting that his claim should be for 50% of $5,145.74, to be credited to his child support liability (being $2,572.87).
Mr Trivedi submitted that the amount was paid to Ms Trivedi for child support. He told the Tribunal that the funds were deposited into the joint bank account on 4 June 2024 and at the time he knew he was behind in his child support payments because he had been evicted from the matrimonial home, so he left the payment in the account for Ms Trivedi to take in lieu of child support. Mr Trivedi told the Tribunal that there was an intervention order in place at the time which barred him from discussing any financial issues with Ms Trivedi and he did not have Ms Trivedi’s explicit agreement to accept the payment in lieu of child support. Mr Trivedi acknowledged there was no verbal or written agreement between the parties, however he left the funds in the joint account for Ms Trivedi to take in lieu of child support and she did take the funds and had the benefit of the funds. Through his lawyers, Mr Trivedi gave evidence that he asked for half the refund to be returned to him by Ms Trivedi but she did not respond.
Ms Trivedi’s evidence and contentions
Ms Trivedi acknowledged the amount of $5,145.74 was deposited into the joint account by Centrelink and this was a CCS refund from a past period, before the separation and before the child support assessment was registered (on 22 March 2024). Ms Trivedi told the Tribunal the parties were married for 16 years and she left in November 2023 with $15,000 and left the remaining $17,000 for Mr Trivedi. She accepted that she withdrew the funds out of necessity but at no stage agreed that the funds were in lieu of child support and she brought the matter to the attention of her lawyer to consider these funds as part of the property settlement, including the settlement of their matrimonial home which was valued at over $1,000,000. Ms Trivedi told the Tribunal that she does not accept that half the amount ($2,572.87) be credited as child support.
Ms Trivedi confirmed an intervention order was in place from 16 March 2024 which prevents Mr Trivedi contacting her.
Tribunal’s conclusions and findings
In determining whether the amount of $5,145.74 should be credited for a payment as a NAP, three requirements must be satisfied, that – the payment was made, the payment was made in respect of an enforceable maintenance liability, and there was mutual intent that the payment was made in lieu of child support.
The first criteria to be established is whether payment was made. There is no dispute that payments totalling $5,145.74 were made into a joint bank account held by the parties, on 4 June 2024. These payments related to CCS refunds relating overpaid CCS for the parties’ child for the financial years 2020 to 2022. The evidence does not support a payment of $5,145.74 being directly paid to Ms Trivedi. The Tribunal accepts that the refund of CCS was paid by Centrelink to Mr Trivedi as the primary claiming parent for CCS and was refunded to him as only one parent can claim the CCS benefit. The Tribunal accepts that both parties withdrew funds from the joint bank account at various times.
It is clear from the evidence in the child support material and the evidence at hearing that there was never any mutual intention by Mr Trivedi and Ms Trivedi that the refund of $5,145.74 CCS paid into the parties’ joint bank account would be credited against Mr Trivedi’s child support liability. It is also clear that both Mr Trivedi and Ms Trivedi never agreed that the payments were in lieu of child support and never discussed the matter. Accordingly, the Tribunal cannot accept that the payments were intended by both Mr Trivedi and Ms Trivedi to be credited against Mr Trivedi’s child support liability.
Paragraph 71C(1)(b) of the Act also allows for some NAPs 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. Child care costs are prescribed payments under section 19 of the Child Support (Registration and Collection) Regulations 2018 (‘the Regulations’).
In addition to the payments being prescribed under the Regulations, at the time the payment was made, the payer must have less than regular care of the children for the payment to meet the requirements under paragraph 71C(1)(ba) of the Act.
Child Support has recorded Mr Trivedi as having 0% and care of the children and Ms Trivedi’s care is 100%.
The Tribunal accepts that Mr Trivedi had less than regular care when he lodged the claim for the NAP with Child Support on 12 June 2024, and the Tribunal cannot be satisfied that the refund of $5,145.74 or half of that amount ($2,572.87) was for child care costs for the child who is the subject of the enforceable maintenance liability. The amount claimed by Mr Trivedi was a refund by Centrelink of past period CCS, when the child was not under an enforceable maintenance liability. Accordingly, the requirements under section 71C of the Act are not met and the amounts cannot be credited as prescribed NAPs.
The Tribunal determines that the amount of $5,145.74 or half that amount, $2,572.87, in payments made by Mr Trivedi cannot be credited as payment towards Mr Trivedi’s child support liability as NAPs or prescribed NAPs and therefore the decision of Child Support is correct.
Payments totalling $3,188.26 - $364.20 for a water bill, $237.20 for an internet bill, $992.60 for school tuition, and $1,594.26 for [sport] lessons
Mr Trivedi and Ms Trivedi gave evidence that the water account related to the period Mr Trivedi lived in the former matrimonial home from January 2024 to march 2024. The payment was made on 5 April 2024 for that earlier period. The parties confirmed that they accepted the objections officer’s decision to credit 50% of the water account of $364.20 as a NAP, that is, a credit of $182.10 to Mr Trivedi’s maintenance liability. The parties confirmed to the Tribunal that this matter is not at issue.
Mr Trivedi’s evidence and contentions
Mr Trivedi gave evidence that he left the former matrimonial home on 16 March 2024 and the internet account of $237.20 was for the period 23 March 2024 to 22 May 2024, when Ms Trivedi lived in the home with the children. He gave evidence that the whole account was for home internet for the benefit of those living in the home. Mr Trivedi acknowledged he did not have a mutual agreement with Ms Trivedi as there was an intervention order in place precluding him from communicating directly with Ms Trivedi. He told the Tribunal he is seeking a 50% contribution to the internet account (that is, $118.60).
Mr Trivedi referred the Tribunal to invoices and receipts showing he paid school tuition fees of $992.60 (being 70% of a total invoice amount of $1,418). Mr Trivedi referred to legal correspondence from Ms Trivedi’s lawyers requesting he paid 70% of the school tuition fees and she would pay 30% of those fees. Mr Trivedi submitted this demonstrates a mutual intent by the parties that Mr Trivedi will pay 70% of the school fees in lieu of child support. Mr Trivedi submitted that he considered the proposal he pay 70% as being in lieu of child support, otherwise he would not have agreed to pay the amount of $992.60. As such he submitted that the whole amount should be credited as a NAP.
Mr Trivedi told the Tribunal Ms Trivedi’s lawyers requested he paid 70% of the [sport] lesson fees and she would pay 30% of those fees. He submitted that as he actually paid for 100% of the [sport] fees, being $1,594.26, he should be credited (70%) approximately $1,116 and Ms Trivedi should pay the balance of $478, rather than the $800 credited by Child Support.
Ms Trivedi’s evidence and contentions
Ms Trivedi told the Tribunal that Mr Trivedi left the former matrimonial home on 16 March 2024 when an intervention order was taken out. She acknowledged that at the time he had various utility accounts in his name, including the internet. Mr Trivedi told her to arrange for her own utility accounts, including internet, and she therefore set up her own internet account from April 2024. She told the Tribunal that the children used her mobile telephone to access the internet from 16 March 2024 until her account was set up in April 2024. Ms Trivedi submitted that Mr Trivedi did not cancel the internet account in his name and that is not her issue, and he should not be allowed a 50% credit in those circumstances.
In response, Mr Trivedi told the Tribunal if Ms Trivedi provided evidence that she set up a new internet account from 1 April 2024, he would not seek a credit for 50% of the cost he paid for the internet. Ms Trivedi undertook to provide evidence to show she has set up her ([Provider]) internet account.
Ms Trivedi provided further information after the hearing to show that she contacted [Provider] on 20 March 2024 to complete a registration for her home internet account and [Provider] confirmed the account was established on 12 April 2024 and operational on 16 April 2024.
Ms Trivedi acknowledged there was communication by her lawyers to seek a contribution of 70% of school fees (which totalled $1,448) from Mr Trivedi. She gave evidence that this contribution was not in lieu of child support, but reflected what each party could afford to pay for the children’s school fees. Ms Trivedi submitted that the tuition costs Mr Trivedi is referring to are extra costs and she could not afford to bear 100% of those costs. Ms Trivedi acknowledged she asked Mr Trivedi to contribute 70% of the tuition fees, while she would pay 30%. Ms Trivedi told the Tribunal she pays for various other extracurricular costs without contribution from Mr Trivedi, including school fees, uniforms, shoes, books, excursions and camps.
Ms Trivedi acknowledged that her lawyers requested Mr Trivedi meet 70% of the cost of [sport] lesson fees, while she contribute 30%. She told the Tribunal, similar to her submissions in relation to tuition costs, this was on the basis of what she could afford and she did not agree that it would be in lieu of child support payments. Ms Trivedi gave evidence that the [sport] lesson fees for both children were for the period January 2024 to March 2024 when there was no child support assessment in place. Nevertheless, Ms Trivedi told the Tribunal she would agree to 30% of the fees being in lieu of child support. This would mean that effectively Mr Trivedi’s contribution of 70% of the fees would not be considered as a NAP.
Tribunal’s conclusions and findings
In determining whether the amounts of $237.20 for an internet bill, $992.60 for school tuition, and $1,594.26 for [sport] lessons should be credited for a payment as a NAP, three requirements must be satisfied, that – the payment was made, the payment was made in respect of an enforceable maintenance liability, and there was mutual intent that the payment was made in lieu of child support.
The Tribunal has considered these three requirements for each of the claimed payments. The Tribunal accepts that evidence has been provided by Mr Trivedi that he has made payments of $237.20 for an internet bill, $992.60 for school tuition fees, and $1,594.26 for [sport] lessons.
The Tribunal has found that there was no mutual intent in relation to payment of the internet account or the school tuition fees. Accordingly, the Tribunal cannot accept that the payments were intended by both Mr Trivedi and Ms Trivedi to be credited against Mr Trivedi’s child support liability. In relation to the internet account, Ms Trivedi provided evidence that she contacted [Provider] on 20 March 2024 to establish her own home internet. In the circumstances, the Tribual is not satisfied that the home internet account costs claimed by Mr Trivedi should be credited as a NAP payment.
In relation to the [sport] lesson fees, Mr Trivedi submitted that he should have 70% of the [sport] lessons credited as a child support liability as this was the amount Ms Trivedi requested he contribute via her lawyers. In her evidence to the Tribunal Ms Trivedi acknowledged she asked Mr Trivedi to contribute 70% of the [sport] lesson fees, but this was not in lieu of child support. The child support material shows Ms Trivedi agreed there was mutual intent between the parties in relation to crediting fees of $525 for one child and $280 for the other child to Mr Trivedi’s child support liability. The Tribunal therefore accepts Child Support correctly credited $810 of the [sport] fees (totalling $1,594.26) towards Mr Trivedi’s child support liability, and refused to credit the amount of $784.26.
The Tribunal has also considered whether paragraph 71C(1)(b) of the Act applies to the school tuition fees, which allows for some NAPs 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 must be one of the types of payments prescribed under the Act. In addition to the payments being prescribed under the Regulations, at the time the payment was made, the payer must have less than regular care of the children for the payment to meet the requirements under paragraph 71C(1)(ba) of the Act.
Section 19 of the Regulations lists fees charged by a school for the child that may be considered prescribed NAPs. The Child Support Guide at 5.3.1 states that fees charged by a school or preschool for a child who is the subject of an enforceable maintenance liability. This can include school fees and levies, but not payment for non‑compulsory camps, excursions, additional tuition or boarding costs. A school is an institution that mainly provides primary or secondary education.
Whilst the Tribunal is not bound by policy, the Full Federal Court in Drake and Minister for Immigration and Ethnic Affairs [1979] ALD 60 held that the Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. In this instance, the Tribunal accepts that the policy is consistent with the objects of the Act and assists in making determinations under the legislation.
The Tribunal has accepted the school tuition fees paid by Mr Trivedi are non‑compulsory school fees, and therefore are not prescribed NAPs under section 71C of the Act and cannot be credited as prescribed NAPs.
The Tribunal therefore determines that the amount of $992.60 made by Mr Trivedi towards school tuition fees cannot be credited as payment towards Mr Trivedi’s child support liability as NAPs or prescribed NAPs and therefore the decision of Child Support is correct.
Payments totalling $3,393.25 - $1,532 for home insurance and $1,396.25 from the total amount claimed of $1,861.25 for council rates
Mr Trivedi and Ms Trivedi gave evidence that the amount of $465 credited by Child Support for the council rates was for the period April 2024 to June 2024, and essentially this reflected one quarter of the annual rates bill. The parties confirmed that they accepted the objections officer’s decision to credit this amount to Mr Trivedi’s maintenance liability. The parties confirmed to the Tribunal that this matter is not at issue.
Mr Trivedi’s evidence and contentions
Mr Trivedi acknowledged the actual house insurance paid was $954.37, not $1,532 as claimed earlier, and this was paid on 2 February 2024. He acknowledged that at the time he was living in the former matrimonial home and the child support assessment had not commenced; it commenced on 22 March 2024. Mr Trivedi submitted he paid the insurance costs in good faith and the cost covered the period February 2024 to February 2025, and he should be credited the insurance costs from when he left the former matrimonial home (on 16 March 2024) to February 2025. Mr Trivedi told the Tribunal he seeks an amount of $893.99 to be credited against his child support liability, being what he calculated is the period of time he was not in the house.
Mr Trivedi told the Tribunal that when he paid for the insurance in February 2024, there was no intention for anyone to leave the house. He left the house after the police placed an intervention order on him on 15 March 2024 on the basis of false allegations of assault made; those allegations were subsequently not pursued by the police.
Mr Trivedi referred to Ms Trivedi having accepted payment of the council rates from April 2024 to June 2024, in the amount of $465, as being in lieu of child support. He submitted the same approach should also be taken with the house insurance, in which case, Ms Trivedi should accept $893.99 being credited to Mr Trivedi’s child support liability.
Ms Trivedi’s evidence and contentions
Ms Trivedi told the Tribunal that Child Support advised her Mr Trivedi claimed insurance costs of $1,532 and she was then advised by [Insurer] that the cost of the house insurance was $954. The house insurance policy is in Mr Trivedi’s name. She told the Tribunal that the house is part of legal discussions in relation to the property settlement. She does not know how long she will remain in the house and it depends on the legal proceedings between the parties.
Ms Trivedi told the Tribunal she would accept to contribute 30% of the claimed $893 (being $268), if she was to remain in the house until February 2025. She did not agree this was in lieu of child support; instead she referred to a split of 70% - 30%, along the lines of other costs which she submitted should be shared by the parties.
Ms Trivedi told the Tribunal that she did not have the opportunity to test the market for insurance for a better price and she does not know what is included in the policy and whether it is appropriate to her needs. She submitted she may have been able to secure insurance for a lesser cost which is more attuned to her needs. Ms Trivedi submitted the house insurance was paid before the child support assessment and therefore should be considered as a prescribed NAP without her agreement.
Mr Trivedi did not agree to the proposed 30% contribution by Ms Trivedi; instead he seeks the amount of $893 to be credited to his child support liability.
Tribunal’s conclusions and findings
In determining whether the amended amount of $893.99 for house insurance should be credited for a payment as a NAP, three requirements must be satisfied, that – the payment was made, the payment was made in respect of an enforceable maintenance liability, and there was mutual intent that the payment was made in lieu of child support.
The Tribunal accepts that evidence has been provided by Mr Trivedi that he has made payment of $954.37 on 2 February 2024 for house insurance. This payment was before the enforceable maintenance liability and there was no mutual intent that the payment was in lieu of child support. Accordingly, the Tribunal cannot accept that the payment was intended by both Mr Trivedi and Ms Trivedi to be credited against Mr Trivedi’s child support liability.
The Tribunal has also considered whether paragraph 71C(1)(b) of the Act applies to the school tuition fees, which allows for some NAPs 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 must be one of the types of payments prescribed under the Act. In addition to the payments being prescribed under the Regulations, at the time the payment was made, the payer must have less than regular care of the children for the payment to meet the requirements under paragraph 71C(1)(ba) of the Act.
The Tribunal has accepted the house insurance costs paid by Mr Trivedi were paid before the child support assessment was in place and are not prescribed NAPs under section 71C of the Act and cannot be credited as prescribed NAPs.
The Tribunal therefore determines that the amount of $1,532 as claimed, or $954.37 as amended during the hearing by Mr Trivedi, cannot be credited as payment towards Mr Trivedi’s child support liability as NAPs or prescribed NAPs and therefore the decision of Child Support in relation to refusing to credit these costs to Mr Trivedi’s child maintenance liability is correct.
DECISION
The Tribunal affirms the decisions under review.
| Date of hearing: | 28 November 2024 |
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