McCaffery and Lettieri (Child support)

[2020] AATA 1396

McCaffery and Lettieri (Child support) [2020] AATA 1396 (19 March 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC017715

APPLICANT:  Mr McCaffery

OTHER PARTIES:  Child Support Registrar

Ms Lettieri

TRIBUNAL:Member S Letch

DECISION DATE:  19 March 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – non-agency payment ­– whether payment made 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

1. This matter concerns an application by Mr McCaffery against an objection decision dated 18 October 2019. In that decision, the Child Support Agency (CSA), reversing its earlier decision, decided to refuse to credit non-agency payments (NAPs) totalling $4,530 made by Mr McCaffery on 10 June 2019 and 23 June 2019.

2. The objection decision provides the following useful background:

   1. From 7 June 2019, we have calculated the child support payable by Mr McCaffery to Ms Lettieri for [Children 1-5] which has been collected by us from this date.

   2. From 7 June 2019, the percentage of care reflected on the assessment is that Ms Lettieri provides 100% care of [Children 1-5].

   3. On 3 July 2019, Mr McCaffery]reported $4,530 as a non-agency payment. Mr McCaffery stated that Ms Lettieri has access to his account and therefore, she transferred funds from his account to her account for child support as follows:

   10/06/2019: $2,030 bank access

   23/06/2019: $2,500 bank access

   4. On 29 July 2019, Ms Lettieri contacted us and she confirmed the receipt of the $4,530, but she stated this amount was paid to her for psychologist fees, insurance and a birthday party.

3. The Tribunal conducted two hearings in which Mr McCaffery and Ms Lettieri participated by conference telephone. Mr McCaffery had supplied text exchanges between himself and Ms Lettieri which he said proved she had intended the disputed payments to be in lieu of child support; those materials were not available to Ms Lettieri at the first hearing.

4. Part V of the Child Support (Registration and Collection) Act 1988 provides for NAPs to be credited where, amongst other things, both the payer and payee intended for payments to be in partial or complete satisfaction of child support liability.

5. Ms Lettieri has consistently denied that she held any intention for payments claimed by Mr McCaffery to be in lieu of the enforceable child support liability. She acknowledges the sums were used for her, and the children’s, support, in addition to the particular costs she identified. However, she told the Tribunal that Mr McCaffery earns in excess of $[Amount] per annum, and that she had no intention that the sums would reduce the enforceable liability arising from her application made in June 2019.  

6. Mr McCaffery, in his written materials to the Tribunal, provided the following, which was consistent with his evidence during the hearing:

   I am asking for the AAT to review the decision made by Child Support to not accept $4530 of monies removed from my account by my estranged wife, Ms Lettieri, as non-prescribed extraordinary payments, during the period when child support payments were not being involuntarily taken from my pay.
   I allowed these payments to be made in lieu of child support, because I wanted my wife and children to have financial support during this period, with the understanding that the money was to be used for the children, and would then be credited to my child support account as non-prescribed extraordinary payments in the future.
   This was agreed upon by Ms Lettieri, and at no stage was there an agreement for her to use the money for her legal fees, which she claims in her application to dispute the money as child support. I have previously told Ms Lettieri verbally I am not paying her legal bills.
   As far as I am aware, there was one psychology session for [Child 1] that may or may not have occurred during this time, which would have been subsidised/payed for out of our private health insurance with [Insurer], as I am not aware of a mental health care plan in place, but if there is then the psychology visit would have been subsidised/payed by Medicare.
   The children have been enrolled with further counselling at [Counselling provider] recently, which I believe is a free service, so the argument Ms Lettieri has presented that the money was used for expensive psychology/counselling sessions is spurious.
   I also offered to pay for the two birthday parties Ms Lettieri is stating the $4530 was used for, but Ms Lettieri said there was enough money in the amount transferred to cover this small expense (approx $300 as per verbal discussion between us).
   As per instructions regarding evidence submission to refute the decision, I have attached screen shots of messages between Ms Lettieri and myself which clearly shows what the $4530 was intended for, and this was for child support, and not for other expenses as she claims.
   Ms Lettieri submitted a challenge to dispute these payments only after non-agency payments were submitted, which reduced the overall child support payments by 30%, in an attempt to get more money than what she is eligible for.
   The decision by the Child Support Agency not to accept this payment as child support has placed further financial strain on myself, has placed my child support account in arrears, is punitive in nature, and Ms Lettieri is effectively receiving double the amount of money assessed as reasonable to pay for the expenses related to the care of the children during this period.
   I also note in the decision made by the Child Support Agency, that no evidence was submitted by Ms Lettieri to support her claim that the $4530 was used or agreed to be used for anything other than supporting the children.
   The AAT should also be made aware that I continue to pay Ms Lettieri’s share of the mortgage ($1600 a fortnight), private school fees ($2000 per fortnight), private health insurance and I have paid off her $[Amount] [Vehicle]. Apart from utility bills and daily living expenses, there are no other direct costs to child care that Ms Lettieri is paying for, and I believe that the $1600 a fortnight in child support payments I am involuntarily making is more than sufficient to support the children.

   Correspondence from Ms Lettieri’s lawyer indicates she wants $4000 a fortnight in spousal maintenance, a figure that far exceeds my financial capacity.

7. Mr McCaffery raises a number of matters not directly relevant to the narrow issue before the Tribunal. He relies on a number of text exchanges to support his contention Ms Lettieri intended the sums she had withdrawn from Mr McCaffery’s bank account to be in lieu of child support. Having reviewed those exchanges, in the Tribunal’s assessment, there is nothing which could be regarded as an express indication by Ms Lettieri that she intended the payments to reduce Mr McCaffery’s child support liability; at its highest, that would need to be inferred inasmuch as Ms Lettieri did not directly rebuke Mr McCaffery’s that he intended the sums to be in lieu of the enforceable liability.

8. The Tribunal accepts that Mr McCaffery certainly intended the sums to be in lieu of child support. However, the Tribunal does not consider that the text messages alone would permit an inference that Ms Lettieri held that same intention.  

9. The Tribunal observes this is not a question of whether Ms Lettieri should have intended the sums be in lieu of child support on the basis, for example, of any suggestion about what might be fair or otherwise reasonable; the question to be resolved is whether she actually held the requisite intent.

10. Having heard Ms Lettieri’s evidence during the hearing, the Tribunal is not satisfied on the evidence before it that it can conclude that Ms Lettieri held an actual intention that the disputed sums should reduce Mr McCaffery’s enforceable child support liability.

11. The Tribunal therefore determines that the amounts claimed should not be credited in the particular circumstances of this case. As the Tribunal has reached the same conclusion as the objections officer, the decision under review will be affirmed.

DECISION

The decision under review is affirmed.