Kerrigan and Boswell (Child support)

[2024] AATA 2541

Kerrigan and Boswell (Child support) [2024] AATA 2541 (18 June 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/PC027658

APPLICANT:  Mr Kerrigan

OTHER PARTIES:  Child Support Registrar

Miss Boswell

TRIBUNAL:Deputy President K Synon

DECISION DATE:  18 June 2024

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that $5,137.60 of the payments totalling $7,587.60 that the father made to the mother’s account from the period 3 May 2023 to 9 August 2023 are to be credited as non-agency payments.

CATCHWORDS

CHILD SUPPORT – non-agency payment – bank transfer – intention of both the payer and payee – childcare payments – reimbursement for mobile phone bill – 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

BACKGROUND

1. Mr Kerrigan (the father) and Ms Boswell (the mother) are the parents of [Child 1], born [in] January 2018, and [Child 2], born [in] June 2020.

2. A child support case has been in place with Services Australia – Child Support (Child Support) since 6 April 2023. Child Support collects the registered child support liability on behalf of the mother.

3. On 31 August 2023, the father advised Child Support that he had made non-agency payments (NAPs) of $7,587.60 from 7 April 2023 to 18 August 2023 via bank transfer to the mother’s account. On 31 October 2023, Child Support accepted $5,670.89 of the total payments as NAPs and credited $5,670.89 towards the father’s child support liability.

4. The mother lodged an objection to this decision on 23 November 2023. On 16 February 2024 her objection was allowed and the objections officer credited $5,204.23 as NAPs out of the total $7,587.60 paid by the father to the mother.

5. In both the first and second decisions the senior case officer and objections officer recorded that the period of the NAPs considered was 3 May 2023 to 9 July 2023, however both decisions considered payments dated after 9 July (namely 26 July 2023 and 9 August 2023) and therefore I consider that the date 9 July was a repeated typographical error, and the date range of the claimed NAPs is 3 May 2023 to 9 August 2023.[1] 

   [1] See, for example, page 113 of the hearing papers.

6. The father requested a review of the objections officer’s decisions by application to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) on 14 March 2024.

7. The father and mother attended the hearing convened on Tuesday 18 June 2024 by MS Teams video. In reaching my decision, I considered the sworn evidence of the father and mother as well as the documents provided by Child Support (folios 1 to 261).  On 14 March 2024 the father submitted 20 bank receipts, which were numbered A1-A20 and exchanged.  During the hearing the father explained that he was not claiming any of these as NAPs but provided these to demonstrate his claim that he supports his son, [Child 3], via direct payments. On this basis, this submission is not directly relevant to my decision.

CONSIDERATION

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

2. In Child Support’s first decision dated 31 October 2023,[2] it relevantly accepted that 2 payments the father made totalling $1,837.60 (which were not contested by the mother) were for agreed childcare payments to [named early learning centre].[3] 

   [2] Page 113 of the hearing papers.

   [3] See paragraph 12.

3. The issue in this case is therefore whether all or part of the payments totalling $7,587.60 made by the father to the mother’s account may be credited as his child support liability as an NAP under section 71A or a prescribed non-agency payment (PNAP) under section 71C of the Act.

4. Section 71A of the Act allows Child Support to credit a payment made to a third party on behalf of the payee of an enforceable maintenance liability in lieu of a payer’s child support liability in certain circumstances. Such payments are known as NAPs. Paragraph 71A(1)(c) of the Act also requires that the amount is “intended by both the payer and payee to be paid in complete or partial satisfaction” of the child support liability.

5. In Child Support’s first decision dated 31 October 2023,[4] it accepted the following payments from the father and credited a portion of them as NAPs towards his child support liability.  The father claimed a total of $7,587.60 as NAPs, and of these, 2 payments totalling $1,837.60 were not contested by the mother as these were for agreed childcare payments to [named early learning centre].[5]  Therefore, what was in dispute was a total amount of $5,750.  Of these, Child Support appears to have credited two-thirds of the NAPs claimed.  These are:

   [4] Page 113 of the hearing papers.

   [5] See paragraph 12.

Date	Amount reported by father	Payment made by	To whom the payment was made	The % of care of each parent at the time of the payment	Amount credited by Child Support
3 May 2023	$350	Father	Mother	Father: 5% of both children Mother: 95% of both children	$233.33
17 May 2023	$850	Father	Mother	Father: 5% of both children Mother: 95% of both children	$566.66
31 May 2023	$850	Father	Mother	Father: 5% of both children Mother: 95% of both children	$566.66
14 June 2023	$500	Father	Mother	Father: 5% of both children Mother: 95% of both children	$333.33
28 June 2023	$850	Father	Mother	Father: 5% of both children Mother: 95% of both children	$566.66
12 July 2023	$850	Father	Mother	Father: 5% of both children Mother: 95% of both children	$566.66
26 July 2023	$850	Father	Mother	Father: 5% of both children Mother: 95% of both children	$566.66
9 August 2023	$650	Father	Mother	Father: 5% of both children Mother: 95% of both children	$433.33
Total	$5,750	$3,833.29

1. In her objection to the 31 October 2023 decision, the mother wrote:[6]

   [6] Page 131 of the hearing papers.

   I am objecting to the child support decision, date 31 October 2023 because:

   1)All the money that [the father] transferred to me from 03/05/23 to 09/07/23 are not only [Child 1] & [Child 2]. The money includes expenses for my stepson who is still staying with me, which I have support his expenses including his stay, electricity, water & gas usage, food, transportation, personal care etc.

   i.Additional:

   ii.Stepson; [[Child 3]], 16 years old, son of [the father] from his previous marriage.

   2)I’m paying the phone bills amounting to $468.61 every month. The phone bills were registered under my name in July 2021. It is because [the father] transferred the ownership to my name when he upgraded the phone plan and unfortunately, he had a credit rating issue (bad credit. He upgraded few mobile plan (ending [specified digits] is mine and I pay for myself) and took 1 unit of iPhone 13 Pro Max (mine and I pay for myself), 2 units of iPhone 13 Pro and other accessories for my 2 stepsons.

   i.Since we separated, he refused to pay and I have to settle full amount of the bills every month with my own money, or my service will be suspended (Mine is only $119.21). On 03/05/2023 I called him and asked to pay me for his and his son’s portion because my service has been suspended. Then he transfers me $350.

   ii.Please refer attachment 1 to attachment 7, the phone bills as a proof.[7]

   3)Please refer attachment 8.[8] Date 03/05/2023. It was conversation after I asked him to pay for the phone bills. As the phone bills need to pay every month, so $350 from his transfer are for Optus bills. And he is aware about it.

   As conclusion, I strongly objecting to child support decision because [the father] claimed all the money as child support for [Child 1] and [Child 2], which is he know that the money need to share with my stepson, and $350 every month for the phone bills.

   [7] Pages 132-154 of the hearing papers.

   [8] Page 155 of the hearing papers.

2. The 3 May 2023 text conversation between the mother and father reads:

   Text from the father on 3^rd May 2023 at 8:23pm:

   Payment made
   Amount: $350.00
   To: [mother]
   Description: SyG

   Reply from the mother:

   Thanks. I’ll use this money to pay phone bills for [nickname], [nickname] and the number your mom use.

   Further reply from the father:

   Pay for what you can. I’m paying for 1 and a half house rent every 2 weeks.. It’s a lot of money for me...  On top of that, I am paying for the Car, the outstanding AGL bill & Synergy Bill from the [redacted] house...It’s suffocating for me..Please understand..Hope this will clear soon so I can “Survive”.

3. In the ARO decision dated 16 February 2024,[9] Child Support allowed the mother’s objection to the 31 October 2023 decision, thereby reducing the amounts credited as NAPs towards the father’s child support liability. Child Support accepted the mother’s assertion that the father made a payment of $350.00 each month, which was intended as payment towards the father’s son’s (her stepson’s) phone bill. Hence, this could not be credited towards the father’s child support liability.  Therefore, rather than discounting the claimed NAPs by one third to represent the cost of the father’s son (her stepson), the objections officer reduced the relevant payments by $350, which was the amount the mother claimed was for reimbursement of the cost of her stepson’s mobile phone bill:

   [9] Pages 38-40 of the hearing papers.

Date	Amount reported by father	Payment made by	To whom the payment was made	The % of care of each parent at the time of the payment	Amount credited by Child Support
3 May 2023	$350	Father	Mother	Father: 5% of both children Mother: 95% of both children	$233.33
17 May 2023	$850	Father	Mother	Father: 5% of both children Mother: 95% of both children	$500
31 May 2023	$850	Father	Mother	Father: 5% of both children Mother: 95% of both children	$500
14 June 2023	$500	Father	Mother	Father: 5% of both children Mother: 95% of both children	$333.33
28 June 2023	$850	Father	Mother	Father: 5% of both children Mother: 95% of both children	$500
12 July 2023	$850	Father	Mother	Father: 5% of both children Mother: 95% of both children	$500
26 July 2023	$850	Father	Mother	Father: 5% of both children Mother: 95% of both children	$500
9 August 2023	$650	Father	Mother	Father: 5% of both children Mother: 95% of both children	$300
Total	$5,750	$3,366.66

1. During the hearing it became obvious that the father and mother were in agreement about the purpose of each payment the father made between the period 3 May 2023 and 9 August 2023.  The father said he paid the mother directly throughout this period because despite collection commencing on 6 April 2023, Child Support had not in fact started collecting child support from his salary in July or August 2023. Asked about each of the payments, both the father and mother agreed:

   a)   3 May 2023 payment of $350 – this was for payment of the Optus phone bill for [Child 3]. The phone bill is in the mother’s name. This payment was not intended as child support.

   b)   17 May 2023 payment of $850 – $500 of this amount was intended as child support and the remaining $350 was intended to reimburse the mother for [Child 3]’s Optus phone bill.

   c)   31 May 2023 payment of $850 – $500 of this amount was intended as child support and the remaining $350 was intended to reimburse the mother for [Child 3]’s Optus phone bill.

   d)   14 June 2023 payment of $500 – This was for child support. The Optus phone bill was paid separately.

   e)   28 June 2023 payment of $850 – $500 of this amount was intended as child support and the remaining $350 was intended to reimburse the mother for [Child 3]’s Optus phone bill.

   f)    12 July 2023 payment of $850 – $500 of this amount was intended as child support and the remaining $350 was intended to reimburse the mother for [Child 3]’s Optus phone bill.

   g)   26 July 2023 payment of $850 – $500 of this amount was intended as child support and the remaining $350 was intended to reimburse the mother for [Child 3]’s Optus phone bill.

   h)   9 August 2023 payment of $650 – $300 of this amount was intended as child support and the remaining $350 was intended to reimburse the mother for [Child 3]’s Optus phone bill.

2. It is therefore without contention that the payments totalling $3,300 were intended by both the father and the mother to be in complete or partial satisfaction of an amount payable under the enforceable agreement (paragraph 71A(1)(c)), and thus are to be credited against the father’s child support liability.  These payments were made by the father as, during this period, Child Support had not commenced collection from his salary. Adding in the 2 payments totalling $1,837.60 (agreed childcare payments to [named early learning centre]), which were not in dispute during the review, a total of $5,137.60 is to be credited as NAPs against the father’s child support maintenance liability.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that $5,137.60 of the payments totalling $7,587.60 that the father made to the mother’s account from the period 3 May 2023 to 9 August 2023 are to be credited as non-agency payments.