Farlow and Glenister (Child support)

[2022] AATA 2142

Farlow and Glenister (Child support) [2022] AATA 2142 (20 May 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2022/SC023249; 2022/SC023264; 2022/SC023265; 2022/SC023266; 2022/SC023267; 2022/SC023268; 2022/SC023269; 2022/SC023270

APPLICANT:  Ms Farlow

OTHER PARTIES:  Child Support Registrar

Mr Glenister

TRIBUNAL:Member S Letch

DECISION DATE:  20 May 2022

DECISION:

The decisions under review are affirmed.

CATCHWORDS

CHILD SUPPORT – non-agency payments - whether payment made to a third party in lieu of child support – refusal to credit non-agency payments – decisions 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

1. This matter concerns a number of different applications regarding numerous “non-agency payments” (“NAPs”) claimed by Ms Farlow over a period covering 2006 to 2020 in the following (aggregated) sums:

   ·2022/SC023249 - $1,615.57

   ·2022/SC023264 - $1,311.99

   ·2022/SC023265 - $2,508.40

   ·2022/SC023266 - $3,433.41

   ·2022/SC023267 - $1,394.80

   ·2022/SC023268 - $3,082.69

   ·2022/SC023269 - $9,362.47

   ·2022/SC023270 - $6,156.24.

2. There are eight different objection decisions dated 27 January 2022. It is convenient to set out an extract from the objection decision in matter 2022/SC023249 setting out the consistent reasoning by the Child Support Agency (“CSA”) for refusing to credit the claimed NAPs:

   …

   Ms Farlow and Mr Glenister have had a registered child support assessment for [the child] since 13 October 2006.

   2.

   On 7 September 2021, we received a large number of NAPS correspondence from Ms Farlow. We confirmed Ms Farlow’s intention was to have these payments credited against her maintenance payable to Mr Glenister.

   On 11 November 2021, we received a follow up call from Ms Farlow. At the time, we advised the payments would only be considered in lieu of maintenance payable if mutual intent between parents can be established.

   On 18 November 2021, Mr Glenister notified his disagreement towards the NAPS submitted by Ms Farlow. We subsequently made a decision to refuse to credit payments of $1,615.57 as non-agency payments.

   3.

   On 14 December 2021, Ms Farlow objected to this decision.

   On 23 December 2021, Ms Farlow confirmed the reason for her objection was that all of the payments she has claimed were to be considered in lieu of child support. Ms Farlow provided a statutory declaration confirming that she made the payments at Mr Glenister’s request for the support of [the child].

   4.

   On 24 December 2021, we notified Mr Glenister of Ms Farlow’s objection. To date, we have not received a response from Mr Glenister to Ms Farlow’s objection.

   REASONS FOR THE DECISION

   General definition of a non-agency payment is a payment made directly to a receiving parent of an enforceable maintenance liability. We can credit a non-agency payment to a child support debt if at the time the payment was made both parents intended that it was a payment towards the enforceable maintenance liability.

   Prior to objection, we accepted Ms Farlow’s advice the payments made by her ought to be credited in lieu of her enforceable maintenance liability. During the original decision making process, we were unable to establish from Mr Glenister the payments made by Ms Farlow were intended as payments towards child support debt.

   On objection, Ms Farlow advised she provided a statutory declaration confirming she made the payments at Mr Glenister’s request for the support of [the child]. We were unsuccessful in our attempt to seek a response from Mr Glenister if mutual intent existed when the payments were made.

   In this case, there is no evidence Mr Glenister agreed the payments made by Ms Farlow were intended to be credited towards her enforceable maintenance liability. Thus, we have made a decision to refuse to credit payments of $1,615.57 as non-agency payments.

   The objection is disallowed.

   …

3. Ms Farlow sought further reviews by the Tribunal. She participated in the Tribunal’s hearing by conference telephone. Mr Glenister did not answer the Tribunal’s calls at, and around, the time of the scheduled hearing; the hearing proceeded in his absence.

4. In summary, Ms Farlow told the Tribunal that she met numerous expenses for [the child], in addition to direct cash payments to Mr Glenister, over a period spanning from as far back as 2006. [The child] was living with Mr Glenister 100% of the time until around August 2020; she now has 100% care of [the child]. Ms Farlow told the Tribunal she has put in considerable effort to produce receipts and other evidence for the itemised sums she claims, summarised in correspondence from the CSA beginning at folio 624 of the CSA materials.

5. Ms Farlow told the Tribunal she has been the victim of physical, psychological and financial abuse at the hands of Mr Glenister. Mr Glenister asked her on a number of occasions to pay additional sums as he was without food and not able to properly support [the child]. Ms Farlow told the Tribunal that her highest priority was [the child]’s welfare, and she felt she “had no choice” but to pay extra amounts to Mr Glenister, and pay for [the child]’s other expenses, including school levies, textbooks, uniforms and excursion expenses. She confirmed she was always “up to date” with the amounts she was obliged to pay the CSA – until around September 2017 when a large sum (some $6,000) was added to her assessment because she had started work.

6. Ms Farlow told the Tribunal she and her son are now on “Struggle Street” as because of her alleged debt, she is not receiving any support from Mr Glenister; she wants those extra payments she made over the years to be recognised by the CSA. Ms Farlow told the Tribunal she has asked the CSA to remove interest and other penalties (the Tribunal advised Ms Farlow that it has no jurisdiction over those matters). The Tribunal asked Ms Farlow whether Mr Glenister had ever asked her to stop paying the CSA directly and to pay him directly - Ms Farlow said Mr Glenister told her that he wanted extra payments from her “as well” (as the CSA liability).  Ms Farlow told the Tribunal she was concerned that if she did not pay the enforceable sums to the CSA, as well as the extra payments to Mr Glenister, that [the child]’s care would suffer, and that he would be at risk of harm.

7. Ms Farlow told the Tribunal that she was told by the CSA she could claim  “school fees” at any time; Ms Farlow clarified that [the child] did not attend a private school, but that she had met expenses such as levies, excursions, textbooks, and the like.

8. The Tribunal did not have the benefit of the hearing evidence from Mr Glenister. The CSA made the following file record on 18 November 2021 (folio 643):

   Details of the discussion with Mr Glenister:

   Customer confirmed that he had received NAP letters

   Customer advised that he does not agree with the NAPS submitted by the other parent, customer advised the third party payments are not in lieu of CS and confirmed he has not receive an [sic] direct payments from the other parent. Customer advised that she recently told him she would wipe her debt and make him pay her over 10k in CS - customer advised he believes this is why she has lodged these NAPS

   Completed NAP decision macro and confirmed with the customer they have now been disallowed…

9. Sections 71 (direct payments to payee) and 71A (payments to a third party) of the Child Support (Registration and Collection) Act 1988 (“the Act”) contains a number of requirements. If the requirements are satisfied in respect of a particular payment, then, subject to section 71D of the Act, the payment must be credited. In respect of the payments made by Ms Farlow, the only requirement in dispute is a requirement that both parents intended the payment, or part of the payment, to be credited against Ms Farlow’s child support liability.

10. As explained to Ms Farlow during the hearing, the test is not a general test of fairness, or a general mechanism to offset the debt she says has been unfairly burdened on her in circumstances where she is now experiencing financial difficulty. The very prescriptive requirements laid out in Division 2 of Part V of the Act must be satisfied in order to activate credits under the NAP regime. There is no particular provision which would allow a credit solely on the basis of what the Tribunal accepts was likely a degree of coercion felt by Ms Farlow to go above and beyond the level of her enforceable child support liability.

11. Here, Ms Farlow was “up to date” with her obligations to the CSA. There was no particular reason for Mr Glenister to regard additional payments as being in lieu of the enforceable liability. Indeed, Ms Farlow’s own evidence was that Mr Glenister had made it clear to her that the payments he had sought from her directly (and the expenses met directly by Ms Farlow) were payments he expected to be made in addition to the sums he was receiving from the payments Ms Farlow was making directly to the CSA. The Tribunal observes that Ms Farlow made no approach to the CSA over the many years the “additional payments” were made to claim such payments in lieu of child support.

12. The Tribunal has no reason to doubt Mr Glenister’s recorded representation to the CSA that he had not intended any of the payments claimed to be in lieu of the enforceable child support liability. The Tribunal therefore concludes that Ms Farlow cannot benefit from a favourable application of sections 71, 71A or 71B in respect of any of the payments she has claimed.

13. Ms Farlow raised her payment of school levies, textbooks, uniforms and school bags (the costs of excursions and the like are excluded from the types of payments which can be credited as a “prescribed non-agency payments” (where a payment can be credited regardless of the intention of the parties) for the purposes of section 71C of the Act). However, in order for Ms Farlow to benefit from such credits, she is required to have less than 14% care of Eagan at the time the payment is credited. She now has 100% care of [the child]; accordingly, section 71C cannot now apply: paragraph 71C(1)(d).

14. As the Tribunal has reached the same conclusion as the objections officer in respect of all eight decisions, the decisions under review will be affirmed.

DECISION

The decisions under review are affirmed.