Pelphrey and Bullock (Child support)

[2024] AATA 3235

Pelphrey and Bullock (Child support) [2024] AATA 3235 (29 July 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/SC027939

APPLICANT:  Mr Pelphrey

OTHER PARTIES:  Child Support Registrar

Ms Bullock

TRIBUNAL:Member S Letch

DECISION DATE:  29 July 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – non-agency payments – dispute between parents as to which would have child on first day of new high school – father’s purchase of uniform for child – no intention by mother – 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 a decision by Child Support to refuse to credit “non-agency payments” (NAPs) claimed by Mr Pelphrey.

2. It is convenient by way of background to set out some extracts from the objections officer’s decision dated 15 April 2024 which disallowed Mr Pelphrey’s objection:

   DECISION UNDER REVIEW

   Type of decision being objected to: Non-Agency Payments (NAPs)

   Decision being objected to:

   Mr Pelphrey is objecting to our decision made on 12 February 2024 to refuse to credit payments
   $332.07 as Non-Agency Payments (NAPs).
   REASONS FOR THE DECISION

   A non-agency payment includes a payment to a third party in discharge of a debt owed by the payee or payer of the enforceable maintenance liability (CSRC Act section 71A). To credit a non-agency payment, we need to be satisfied that the payment was made, that the payment was made in respect of an enforceable maintenance liability, and that both parties intended the payment as child support.

   The legislation also provides for prescribed payments under CSRC Act section 71C, subject to
   certain conditions.

   We can credit a non-agency payment to a child support debt or carer debt if, at the time the payment was made, the payer and the payee both intended that it was a payment towards the enforceable maintenance liability or the carer liability.

   We can credit certain payments towards a payer's child support liability regardless of the intention
   of the parents at the time the payment was made (CSRC Act section 71C), except if:
   ꞏ the liability is an overseas maintenance liability (CSRC Act section 71C(6)), or
   ꞏ the liability is a recovery order, or for spousal or de facto maintenance (CSRC Act section
   71C(5)(a)), or
   ꞏ at the time the payment was made, the payer had at least regular care of any of the children
   to whom the relevant administrative assessment relates (CSRC Act section 71C(1)(ba)), or
   ꞏ at the time the payment was made, the child support liability was being fully or partially met
   by a lump sum credit (CSRC Act section 71C(2)) (refer to 5.3.3).

   In this case, Ms Bullock advised that there was no mutual intent that the payments made/good purchased were agreed to be in lieu of child support liability. We reviewed the statements provided by both parties, there is no evidence to indicate that there was an agreement that these payments were in lieu of child support .

   Although there is no disagreement confirming payments were made/goods were purchased, there was no evidence of mutual intent by both parents.

   Ms Bullock advised that she does not accept payments totalling $332.07 for as non-agency payments.
   Therefore, on review, we have made the decision to refuse to record payments totalling $332.07 as non-agency payments.

   The objection has been disallowed.

3. Both parties participated in the Tribunal’s hearing by conference telephone.

4. In summary, Mr Pelphrey told the Tribunal that at the start of 2024, it was “his turn” in accordance with Court orders to send [the child] to school at the beginning of the year. It appears there was a dispute between the parties as to which parent would have [the child] on the first day. [The child] was starting high school and so he had new uniform requirements. The parties agreed that Ms Bullock, in the first half of the Christmas school holidays at the end of 2023, had purchased [the child]’s new uniform. Mr Pelphrey referred to text messages contained in the hearing papers in which he says he attempted to have Ms Bullock supply [the child]’s school uniform and other requirements to start the year. Ms Bullock maintained that there was a legitimate dispute about the interpretation of Court orders and who was to have [the child]. Ms Bullock submitted that there was nothing in the text messages which indicated she had in any way intended the monies spent by Mr Pelphrey to be in lieu of child support; she said she was not aware at the time he purchased the relevant items, and when she later became aware, she did not form any intention for those payments to reduce Mr Pelphrey’s child support liability. Mr Pelphrey told the Tribunal that it “might be a different story” if he was behind on his payments; however, he is up-to-date and has never missed a child support payment.

Application of the law

1. Part V of the Child Support (Registration and Collection) Act 1988 (the Act) 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.[1] The issue in this application concerns the payments totalling $332.07 (itemised in a file note at folio 9 of the hearing papers). 

   [1] There is another form of payment referred to as a “prescribed non-agency payment” which does not require mutual intention; however, that can only apply if a parent has less than regular care of a child. Here, Mr Pelphrey is recorded as having regular care (21%) of [the child]; as a result, crediting a prescribed non-agency payment is excluded.

2. Assuming the purchases made by Mr Pelphrey are captured by section 71A of the Act, Ms Bullock has consistently maintained that she did not intend for those payments to be in lieu of child support. 

3. It appears the parties were in a dispute about [the child]’s care; as a result, it seems Ms Bullock decided not to cooperate with Mr Pelphrey’s request for [the child]’s school items to be supplied before his first day. I note that the legislative requirements to credit a NAP are prescriptive; the test is not a general test of fairness, or what one party thinks the other ought to have intended in the circumstances. In order to give Mr Pelphrey the outcome he seeks, I would need to be satisfied that the amount paid by Mr Pelphrey was intended by Ms Bullock to be in complete or partial satisfaction of an amount payable under the enforceable maintenance liability.

4. I have no reason to doubt Ms Bullock’s consistent evidence on that matter. I accept she was not aware the purchases had been made at the time they were made, and that when she learned of the payments, she formed no intention for Mr Pelphrey’s child support liability to be reduced accordingly. I see no particular reason why, in a situation where the parties were in conflict over the interpretation of Court orders, that Ms Bullock would have formed such an intention after the fact, and to have subsequently consistently denied she had formed the intention for Mr Pelphrey’s liability to be reduced. Mr Pelphrey may argue a degree of unfairness given Ms Bullock had not supplied [the child]’s unform; however, I note again that the test is not one of general fairness. 

5. I therefore find that whilst Mr Pelphrey intended those purchases to be in lieu of child support, there was no such intention on Ms Bullock’s part. Accordingly, the payments claimed by Mr Pelphrey cannot be credited against this child support liability under Part V of the Act.

6. I note that if Mr Pelphrey considers there are special circumstances which have rendered the child support assessment unfair, he is at liberty to apply to Child Support for a “change of assessment”. Such considerations involve a broader discretion than the very prescriptive NAP provisions. I am careful to observe I express no opinion about the likelihood that any such application would achieve the outcome sought by Mr Pelphrey.

7. As I have reached the same conclusion as the objections officer, the decision under review will be affirmed.

DECISION

The decision under review is affirmed.