Zewe and Gewirtz (Child support)

[2020] AATA 1481

Zewe and Gewirtz (Child support) [2020] AATA 1481 (17 April 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/BC018412

APPLICANT:  Mr Zewe

OTHER PARTIES:  Ms Gewirtz

Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  17 April 2020

DECISION:

The decision under review is set aside and, in substitution, the payments of $1,137.95 and $1,259.95 which were paid on 2 May 2019 and 26 July 2019 respectively are credited as non-agency payments pursuant to section 71A of the Child Support (Registration and Collection) Act 1988.

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 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

1. Mr Zewe and Ms Gewirtz are the parents of three children. In 2019 the two older children were attending a private school. On 21 February 2019, Ms Gewirtz applied to register a child support case with what is commonly known as the CSA. Her application was subsequently granted. Mr Zewe was the parent required to pay child support.

2. The payment of child support can be a private matter between the parents. Alternatively, it can be registered for collection by the CSA, in which case the child support payable is a debt owed to the CSA. Mr Zewe’s child support payable has always been registered for collection by the CSA.

3. The Child Support (Registration and Collection) Act 1988 (“the Act”) provides that in certain circumstances, payments made to someone other than the CSA can be credited against the payer’s child support liability. Such payments are called non-agency payments. In August 2019, Mr Zewe applied to have payments of $1,137.95 and $1,259.95, which were paid to the children’s school on 2 May 2019 and 26 July 2019 respectively, credited as non-agency payments pursuant to section 71A of the Act. That section contains three requirements, and there is no dispute that two of those requirements were satisfied. The only requirement upon which there was any possible dispute was paragraph 71A(1)(c) which required that “the amount paid, or a part of the amount paid, was intended by both the payer and the payee to be paid in complete or partial satisfaction of” the payer’s child support liability. There is no dispute that Mr Zewe intended the payments to be credited as non-agency payments. On 9 August 2019 the CSA contacted Ms Gewirtz and noted:

   [Ms Gewirtz] confirmed and agreed to NAPs payments re sch fees.

4. On 9 August 2019 the CSA decided to credit the two payments as non-agency payments. On 15 August 2019, Ms Gewirtz objected to that decision. On 12 February 2020 an objections officer concluded that the available evidence did not establish that Ms Gewirtz had intended the payments to be credited as non-agency payments. There is no suggestion that the objections officer listened to the CSA’s audio recording of its conversation with Ms Gewirtz on 9 August 2019. It would appear that the objections officer concluded that the CSA’s file note was not reliable evidence. If it had become necessary, I would have directed the CSA to provide a copy of the audio recording of its conversation with Ms Gewirtz on 9 August 2019. It transpired that that was not necessary.

5. The objections officer decided to not credit the two payments as non-agency payments. Mr Zewe applied to the Tribunal for further review. I conducted a hearing on 17 April 2020. Mr Zewe and Ms Gewirtz gave sworn evidence by conference phone.

6. The following facts are not in dispute. Prior to [a date in] April 2020, Ms Gewirtz was living in the ex-matrimonial home (and Mr Zewe was visiting from time to time). Mr Zewe was paying the home loan repayments, utility costs and the like. He was also paying the children’s school fees. He was also paying $1,000 per month, or $12,000 per annum, to Ms Gewirtz.

7. On [that day in] April 2019 the parents consented to a Court Order whereby Mr Zewe would continue to pay the costs associated with the ex-matrimonial home and he would also pay spousal maintenance of $300 per week to Ms Gewirtz. $300 x 52 = $15,600 per annum.

8. The date on which the CSA registered the child support case does not appear in the hearing papers. The parents stated that when the Court Order was made, they had not been advised that the child support case had been registered. On 29 April 2019 the CSA contacted Mr Zewe to discuss employer withholdings of child support payments from his wages, so the child support case had obviously been registered by then. It appears that Mr Zewe was required to pay approximately $45,600 per annum in child support on the basis that he was providing 0% care to the children. The rate of child support payable from 21 February 2019 may have been retrospectively reduced in February 2020 following a successful application to this Tribunal in respect of a care decision. The hearing papers do not include that information. In any event, Mr Zewe would have continued to have been required to pay a high rate of child support payable from 21 February 2020, even if it had not been as high as approximately $45,600 per annum.

9. The child support system is complex and, understandably, parents sometimes have difficulty understanding every aspect of the system. During the hearing the parents explained various aspects of the history of their child support case, and related matters, and I then summarised the information set out above. At the end of the hearing, I explained to Ms Gewirtz that if she was agreeable to the two payments in question being credited as non-agency payments, the payments could be so credited. She said she was agreeable to the two payments in question being so credited. All of the requirements of section 71A are satisfied.

10. Section 71D provides a discretion to not credit a payment as a non-agency payment if “the amount ought not to be credited”. In this case, both parents agreed that the two payments should be credited given that Mr Zewe was paying a high rate of child support and the children’s school fees were relatively low: approximately $4,800 per annum. The two payments ought to be credited as non-agency payments.

DECISION

The decision under review is set aside and, in substitution, the payments of $1,137.95 and $1,259.95 which were paid on 2 May 2019 and 26 July 2019 respectively are credited as non-agency payments pursuant to section 71A of the Child Support (Registration and Collection) Act 1988.