Pelphrey and Pelphrey (Child support)

[2024] AATA 785

Pelphrey and Pelphrey (Child support) [2024] AATA 785 (5 March 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/BC027195

APPLICANT:  Mr Pelphrey

OTHER PARTIES:  Child Support Registrar

Ms Pelphrey

TRIBUNAL:Member M Douglas

DECISION DATE:  05 March 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – whether arrears of child support – no unpaid amount of child support over relevant period - 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

BACKGROUND

1. Mr Pelphrey and Ms Pelphrey are the parents of [the child], for whom a child support assessment commenced on 13 February 2012. It would seem from the information before the Tribunal that at the time Ms Pelphrey made an application to Child Support for an administrative assessment of child support to be made for [the child], she elected not to have the child support liability of Mr Pelphrey arising under the assessment enforced under the Child Support (Registration and Collection) Act 1988 (the R&C Act). As a consequence, Mr Pelphrey’s liability arising under assessment was not a debt due to the Commonwealth, which it would otherwise have been if his liability was registered under the R&C Act, and he accordingly was liable to pay child support directly to Ms Pelphrey.

2. On 17 July 2023 Ms Pelphrey applied under subsection 25(1) of the R&C Act for Mr Pelphrey’s child support liability to be registered under the R&C Act. In accordance with subsection 25(2) of the R&C Act, Child Support was required to register Mr Pelphrey’s child support liability under the R&C Act by entering the particulars of his liability in the Child Support Register. Child Support notified Mr Pelphrey and Ms Pelphrey that it had done so by letters dated 24 July 2023. Mr Pelphrey’s liability thereupon became a debt due to the Commonwealth, that is, Child Support was thereafter required to collect child support from him and disburse it to Ms Pelphrey.

3. At the time Ms Pelphrey applied to Child Support for Mr Pelphrey’s liability to be registered under the R&C Act she also applied for amounts she said Mr Pelphrey had not paid in the period from 19 June 2023 to be treated as arrears of child support. That was an application she made under subsection 28A(3) of the R&C Act. Subsection 28A(4) of the R&C Act obligates Child Support to accept such an application provided the period for which the recipient of child support seeks unpaid amounts of child support to be treated as arrears does not exceed three months, which in the case to hand it did not. Consequently, in this case, whatever amounts of child support Child Support found Mr Pelphrey had not paid from 19 June 2023 to 16 July 2023, inclusive, Child Support was required to treat those unpaid amounts as arrears of child support.

4. In accordance with subsection 28A(6) of the R&C Act Child Support was also required to make such variation to the particulars in the Child Support Register that were necessarily or desirable so as to include those unpaid amounts of child support as part of the debt it was obligated to enforce.

5. Simply put, upon Ms Pelphrey applying for Child Support to collect arrears of child support and Child Support satisfying itself that arrears were owing by Mr Pelphrey, Child Support became responsible to collect those arrears and disburse them to Ms Pelphrey.

6. Subsection 42C(1) of the R&C Act required Child Support to serve notice in writing on Mr Pelphrey that would, in substance, advise him that it had found he had unpaid amounts of child support for the period 19 June 2023 to 16 July 2023 totalling $1,760.71 and that it was now responsible to collect that arrears from him.

7. Subsection 37(1) of the Administrative Appeals Tribunal Act 1975 requires, in substance, Child Support to provide the Tribunal its file relevant to the decision the Tribunal is reviewing.  Nowhere in the documents that Child Support provided to the Tribunal to comply with that obligation, is there any notice to Mr Pelphrey regarding it deciding that he had unpaid amounts of child support for the period from 9 June 2023 to 16 July 2023.

8. In any event, on 27 August 2023 Mr Pelphrey objected to Child Support’s decision that he had arrears of child support of $1,760.71 owing to Ms Pelphrey from 19 June 2023.  In his objection he also said:

   objecting to private child support payment transfer to Ms Pelphrey of $478 on 17/07/23 not being accepted as a private payment with the other two payments, on Child Support account statement issued on 19 August 2023.

9. On 30 November 2023 Child Support allowed Mr Pelphrey’s objection relating to the unpaid amounts of child support for the period 9 June 2023 to 16 July 2023.  That is, it decided that he had no unpaid amounts of child support for the period 19 June 2023 to 16 July 2023. 

10. On 13 December 2023 Mr Pelphrey applied to the Tribunal for review of Child Support’s decision allowing his objection.  The Tribunal convened an audio hearing of his application on 5 March 2024, in which both he and Ms Pelphrey participated.

11. Mr Pelphrey at the hearing made clear that he was not seeking to upset Child Support’s decision on his objection to the effect that he had no unpaid amounts of child support for the period 19 June 2023 to 16 July 2023.  In other words, he was not disputing Child Support’s finding when determining his objection that he had paid all child support he was liable to pay for the period 19 June 2023 to 16 July 2023.  Ms Pelphrey did not dispute that finding either.  Consequently, there is no merit in his application for review and the Tribunal must confirm the decision of Child Support.

12. Mr Pelphrey also made plain during the hearing that his grievance that he sought to agitate by applying to the Tribunal for review related to Child Support not giving him a credit against his ongoing child support liability of $478, which amount he paid Ms Pelphrey on 17 July 2023.  Further, he also had a grievance that Child Support had not given him a credit against his ongoing child support liability for unspecified payments he said he made prior to 17 July 2023 that he considers related to his future liability. 

13. There is no controversy that Mr Pelphrey made a payment of $478 on 17 July 2023.  Child Support, for reasons which are not clear from the Child Support file, characterised that payment as relating to Mr Pelphrey’s liability for the period preceding 17 July 2023.[1]

    [1] Page 124 of Child Support file.

14. If that payment was intended by both Mr Pelphrey and by Ms Pelphrey to be in complete or partial satisfaction of the amount Mr Pelphrey was liable to pay Ms Pelphrey on or from 17 July 2023 then Child Support would be required to credit that payment against his liability in accordance with section 71 of the R&C Act.

15. That is a matter that, based upon the material that has been provided to the Tribunal, Child Support has not yet considered. It is unclear from the material before the Tribunal whether Mr Pelphrey, before he lodged his objection on 27 August 2023, had applied under section 71 of the R&C Act for that amount to be credited against his liability. If he did, then Child Support would need to consider that application, and as part of that would need to hear from Ms Pelphrey regarding that nature of the payment.

16. If Mr Pelphrey made such an application under section 71 before 27 August 2023 for a credit of that payment of $478 against his ongoing liability from 17 July 2023, and Child Support made a decision prior to 27 August 2023 on that application, then it would seem that the objection Mr Pelphrey lodged on 27 August 2023 also included an objection to any decision Child Support had made by that date regarding Mr Pelphrey’s section 71 application. In that scenario, it would also seem that Child Support has not considered his objection of 27 August 2023 insofar as it related to its decision regarding a credit of $478 under section 71 against Mr Pelphrey’s child support liability from 17 July 2023. If this is the case, then Child Support will need to consider that objection.

17. If Mr Pelphrey had not made an application under section 71 for credit of the amount of $478 against his child support liability from 17 July 2023, then the objection that he lodged on 27 August 2023, insofar as it purported to be an “objection” not to credit $478 under section 71 against his ongoing child support liability, would actually be a primary application by him for a credit to be made under section 71. If this is the correct scenario, then Child Support has not dealt with that objection.

18. These are matters that Mr Pelphrey will need to follow up with Child Support.

19. But whatever be the case in this regard, the decision of Child Support on his objection, insofar as it related to unpaid amounts of child support, is that he has no unpaid amounts of child support for the period 19 July 2023 to 16 July 2023, and as said, given that neither party seeks to upset that finding, the Tribunal must affirm Child Support’s objection decision.

DECISION

The decision under review is affirmed.