Zacarias and Zacarias (Child support)

[2020] AATA 5117

Zacarias and Zacarias (Child support) [2020] AATA 5117 (23 July 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/HC019304

APPLICANT:  Dr Zacarias

OTHER PARTIES:  Child Support Registrar

Ms Zacarias

TRIBUNAL:Member A Schiwy

DECISION DATE:  23 July 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – non-agency payment – no enforceable maintenance liability at the time the payments were made – refusal to credit non-agency payment – 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 a lump sum payment made by Dr Zacarias to Ms Zacarias should be credited as payment towards his child support liability (such payment being known as a non-agency payment or NAP).

2. Dr Zacarias and Ms Zacarias are the separated parents of two children.  Ms Zacarias and the children moved from [Country 1] to reside in Australia in 2019.  Dr Zacarias is residing in [Country 1].

3. A child support case was registered with the Department of Human Services (Child Support) on 15 August 2019.  Dr Zacarias is the parent liable to pay child support to Ms Zacarias.

4. It is not disputed that Dr Zacarias made a payment of 76,800 euros to Ms Zacarias in December 2018.  It is also not disputed that the payment was for four years of child support of 1,300 euros per month and for four years of private health insurance of 300 euros per month ([1,300+300] x 12 x 4 = 76,800). 

5. On or around 13 January 2020 Dr Zacarias applied to Child Support to have the 76,800 euro payment credited as a NAP.  On 14 January 2020 Child Support refused to credit the payment as there was no child maintenance liability at the time the payment was made.

6. On 21 January 2020 Dr Zacarias objected to the decision and his objection was disallowed on 17 June 2020. 

7. After Dr Zacarias lodged his objection he lodged a departure determination application (change of assessment) on the basis that he had made a payment for the benefit of the children.  Child Support made a decision on 11 June 2020 (notified to Dr Zacarias on 12 June 2020) that a departure determination should be made that reduced Dr Zacarias's child support liability to take into account the payment that he had made. 

8. On 22 June 2020 Dr Zacarias applied to this tribunal for a review of the objection decision (decision not to allow the NAP).

9. The tribunal received documents (numbered 1 to 60) provided by Child Support.  The papers were sent to both parents.  At the beginning of the hearing Dr Zacarias said he had received a lot of papers from Child Support and he then confirmed he had received the papers provided as part of this application process.  Later in the hearing he said he did not actually have the papers and was not aware of the decision made on 11 June 2020.

10. A hearing was conducted on 23 July 2020.  Both Dr Zacarias and Ms Zacarias participated in the hearing by teleconference and gave affirmed evidence.

ISSUES

1. The legislation relevant to this review is contained in the child support law, in particular the Child Support (Registration and Collection) Act 1988 (the Act) and the Child Support (Assessment) Act 1989 (the Assessment Act).

2. Section 70 of the Act states that Child Support can credit payments for NAPs made by a liable parent against an enforceable maintenance liability. An enforceable maintenance liability is a registered maintenance liability. A registered maintenance liability is a registrable maintenance liability that has been registered under the Act (section 4 of the Act).

3. The issue in this case is whether there was an enforceable maintenance liability when Dr Zacarias made the payment of 76,800 euros to Ms Zacarias.

CONSIDERATION

1. In this case there is no dispute that:

   ·Dr Zacarias made a payment of 76,800 euros to Ms Zacarias on 12 December 2018 and that it was intended to be for child support and health insurance.

   ·The child support case was registered on 15 August 2019.

2. The tribunal decided that at the time the payment was made by Dr Zacarias there was no enforceable maintenance liability as a child support case had not yet been registered.  The tribunal therefore affirms the objection decision that the payment cannot be credited as a NAP.

Related issue

1. Dr Zacarias did not appear to be aware that a departure determination decision was made on 11 June 2020 which, in effect, credits his child support liability to take into account the lump sum payment.  Ms Zacarias had an issue with the decision but only on the basis that the 300 euros per month for health insurance was considered to be a payment for child support.  It is open to either parent to object to the departure determination decision if they disagree with the decision.

DECISION

The decision under review is affirmed.