Derricks and Derricks (Child support)

[2024] AATA 476

Derricks and Derricks (Child support) [2024] AATA 476 (6 February 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/BC026867

APPLICANT:  Mr  Derricks

OTHER PARTIES:  Child Support Registrar

Ms  Derricks

TRIBUNAL:Member P Jensen

DECISION DATE:  6 February 2024

DECISION:

The decisions to not credit payments of $200 on 2 November 2022, 16 November 2022, 15 December 2022, 23 December 2022 and 29 December 2022 as non-agency payments are affirmed.

CATCHWORDS

CHILD SUPPORT – non-agency payments – refusal to credit non-agency payments - payments made to third parties and to carer entitled to receive - whether utility payment should be credited – no mutual intention – 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

1. Mr Derricks and Ms Derricks are the parents of two children. A child support case was registered with Services Australia – Child Support (Child Support) from 17 November 2021. Ms Derricks elected to have Child Support collect Mr Derricks’s child support payable, which meant that his child support liability was owed to Child Support, and not to Ms Derricks. Mr Derricks could discharge that liability by making payments directly to Child Support. Section 71 of the Child Support (Registration and Collection) Act 1988 (the Act) provided that if certain requirements were satisfied, he could make payments directly to Ms Derricks and they would be credited against his liability to Child Support. Such payments are called non-agency payments. The requirements of section 71 relevantly include subparagraph 71(1)(a)(i):

   the payee of an enforceable maintenance liability [i.e. Ms Derricks] received from the payer [i.e. Mr Derricks] an amount intended by both the payer and payee to be paid in complete or partial satisfaction of an amount payable under the liability in relation to the child support enforcement period [i.e. Mr Derricks’s liability to Child Support].

2. On 27 February 2023, Mr Derricks applied to have payments totalling $24,111 credited as non-agency payments. Some of the payments were to Ms Derricks. Others were to third parties. Child Support decided to not credit the payments. Mr Derricks objected. An objections officer decided to credit payments totalling $600 and not credit the other payments. Mr Derricks applied to the Tribunal for further review. He subsequently particularised the decisions that he sought to have reviewed: decisions to not credit payments of $200 on 2 November 2022, 16 November 2022, 15 December 2022, 23 December 2022 and 29 December 2022.

3. During the hearing, both parents confirmed that Mr Derricks had made the five payments to Ms Derricks. The issue in dispute was whether Ms Derricks had intended the payments to be credited against Mr Derricks’s liability to Child Support.

4. Ms Derricks stated, and Mr Derricks agreed, that they have not spoken to each other for approximately five years. They have communicated by email. There is no suggestion that Ms Derricks stated in an email to Mr Derricks that if he made the payments of $200 to her, they would be credited against his liability to Child Support. On Ms Derricks’s account of events, Mr Derricks owes her a significant sum of money for school fees and other expenses and his payments to her were in partial satisfaction of his debt to her; they were not in partial satisfaction of his debt to Child Support.

5. When Mr Derricks applied to have $24,111 credited as non-agency payments, his child support debt was $2,901: page 721 of the hearing papers. Granting his applications would have given him a child support credit of $21,210, which, at the time, would have been likely to cover his future child support responsibilities for more than two years. He later stated that he was not seeking a credit, he was only seeking to have his debt to Child Support discharged. I was left with the impression that Mr Derricks had made payments with a general intention of meeting his child support obligations and other (undefined) obligations, and he had proceeded on the mistaken belief that his intention determined the issue. The Act gives Ms Derricks a say in the matter. She could have elected to attend to the collection of child support privately and run the risk of possible disputes about when payments were made and why they were made, and how they related to the parents’ broader financial disputes. Instead, from the date the child support case was registered, she elected to have Child Support attend to collection of child support. Mr Derricks has not provided clear evidence that Ms Derricks intended the five payments in question to be credited against his child support liability to Child Support. I accept Ms Derricks’s evidence that she did not hold that intention. It follows that the payments cannot be credited as non‑agency payments.

DECISION

The decisions to not credit payments of $200 on 2 November 2022, 16 November 2022, 15 December 2022, 23 December 2022 and 29 December 2022 as non-agency payments are affirmed.