Zreika and Lozano (Child support)

[2020] AATA 3665

Zreika and Lozano (Child support) [2020] AATA 3665 (29 July 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/PC019297

APPLICANT:  Mr Zreika

OTHER PARTIES:  Child Support Registrar

Ms Lozano

TRIBUNAL:Member S Brakespeare

DECISION DATE:  29 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 omitted 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 Zreika is liable to pay child support to Ms Lozano in respect of their child Rocco. The child is recorded by the Child Support Agency as being in the shared care of the parents. At all relevant times the child support liability has been collected by the Child Support Agency (that is, it is an enforceable maintenance liability).

2. On 21 February 2020 Mr Zreika asked the Child Support Agency to credit against his child support liability 50% of a payment of $205.50 he had made to a third party in respect of medical expenses for the child.

3. On 28 March 2020 an officer of the Child Support Agency refused to credit the amount against Mr Zreika’s child support liability (the original decision). The basis of the decision was that the decision-maker was not satisfied that both parents intended that the payment be credited against the child support liability.

4. Mr Zreika objected to the original decision. An objections officer disallowed the objection on 11 June 2020 (the objection decision).

5. Mr Zreika lodged an application for review of the objection decision with the tribunal. A hearing was held on 29 July 2020. Mr Zreika requested permission to not attend the hearing due to work commitments and this was granted. Ms Lozano gave evidence on affirmation to the tribunal via conference telephone. The Child Support Agency provided the tribunal and all the parties with a bundle of documents relevant to the review (58 pages). Mr Zreika and Ms Lozano each provided extra documents to the tribunal; these documents were numbered A1 to A9 and B1 respectively and were exchanged with the parties prior to the hearing.

6. Relevant aspects of the evidence and material before the tribunal will be referred to in the tribunal’s consideration of the issues which it has to decide.

ISSUE

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

2. The issue which arises in this case is whether the payment made by Mr Zreika to a third party can be credited against his child support liability.

CONSIDERATION

1. When the Child Support Agency registers a child support liability for collection the amounts payable become a debt due to the Commonwealth and are payable to the Child Support Registrar under section 30 of the Act. In some circumstances the Child Support Agency may credit payments made directly to the payee or to a third party.

2. Section 71A of the Act provides for payments made by a payer of an enforceable maintenance liability to a third party to be credited against the payer’s enforceable maintenance liability if the payment is made to partially or wholly pay a debt owed by the payee, payer, or both parties and the intention of both parties was that the payments (or part of the payments) be credited against the payer’s child support liability. The Child Support Agency refers to these types of payments as non-agency payments.

3. Section 71C of the Act provides, subject to section 71D, for an amount to be credited against a payer’s child support liability regardless of the intention of the parents at the time if a number of conditions are met. One condition is that at the time the payment was made, or at the time the payment is to be credited, the payer must not have at least regular care (14%) of any of the children to whom the assessment applies. At all relevant times in this case the child was in the shared care of the parents and therefore section 71C does not apply.

4. The Child Support Agency may refuse to credit an amount under section 71A or 71C if satisfied that, in the circumstances of the particular case, the amount ought not to be credited (section 71D of the Act).

5. The tribunal finds that Mr Zreika paid an amount of $205.50 to a podiatrist for orthotics for the child on 29 January 2020.

6. Mr Zreika relies upon a text message sent from Ms Lozano to him to support his claim that there was a mutual intention for 50% of the payment to be credited against his child support liability. The text message relevantly states:

   Happy to pay half of the orthotics bill…but I’ll have to arrange paying half my share in instalments as I live pay to pay and have no cash flow.

7. Ms Lozano told the tribunal that the text message was one of a number of text messages and emails exchanged between the parties at the time and should not be viewed in isolation. She said that the agreement was that she would contribute to the costs of the orthotics if Mr Zreika contributed to the child’s school costs. She contends that Mr Zreika had not contributed to the child’s school costs for 2020 and therefore she has no obligation to contribute to the orthotics. Ms Lozano said that she does not agree that the child needs orthotics and therefore she does not see that she should contribute to the cost. She said that previously she had paid Mr Zreika over $2,000 in instalments for orthodontic costs for the child. She said that Mr Zreika has a habit of making purchases for the child and then demanding that she meet half of the cost.

8. The tribunal is not satisfied that it was the intention of both parties for 50% of the cost of the orthotics to be credited against Mr Zreika’s child support liability. The text message from Ms Lozano does not mention crediting the amount as child support; instead, it specifically refers to Ms Lozano making payments to Mr Zreika by instalments. 

9. The tribunal therefore finds that the conditions under section 71A of the Act for crediting the payment or part of the payment against Mr Zreika’s child support liability are not satisfied. This means that the payment is not to be credited against Mr Zreika’s child support liability.

DECISION

The decision under review is affirmed.