Campion and Shorrock (Child support)

[2021] AATA 5183

Campion and Shorrock (Child support) [2021] AATA 5183 (21 December 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/MC022628

APPLICANT:  Mr Campion

OTHER PARTIES:  Child Support Registrar

Ms Shorrock

TRIBUNAL:Member M Douglas

DECISION DATE:  21 December 2021

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the amounts set out in the table at paragraph 23 totalling $9,274 be credited against Mr Campion’s child support liability.

CATCHWORDS

CHILD SUPPORT – non-agency payment - whether payment made to a third party in lieu of child support – whether payment made directly to a parent - intention of both parents - 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 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 Campion and Ms Shorrock are the parents of [Child 1] and [Child 2], for whom the Child Support Registrar has issued administrative assessments of child support, with the first commencing on 23 May 2011. The assessments have required Mr Campion to pay child support for the children to Ms Shorrock. 

2. The Registrar acts through staff employed within the government department known as Services Australia – Child Support, and it is convenient to refer hereafter to the Registrar and the staff within that department who make the decisions on behalf of the Registrar as Services Australia.

3. At all relevant times Mr Campion’s child support liability has been registered under the ChildSupport (Registration and Collection) Act1988 (the Act) and hence the child support he is liable to pay Ms Shorrock is a debt enforceable by Services Australia.

4. On 3 May 2021 Mr Campion applied to Services Australia to have credited against his child support liability several payments he said he made in the period 21 February 2017 to 24 February 2021 either directly to Ms Shorrock or to third parties for the purchases of services and goods for the children.  He claimed he made these payments in satisfaction of his child support obligation. 

5. On 25 August 2021 Services Australia decided not to credit most of the payments that Mr Campion claimed to have made directly to Ms Shorrock and also decided not to credit all but one of the payments Mr Campion claimed to have made to third parties.   The payments that Services Australia both credited and refused to credit are listed in two letters Services Australia sent Mr Campion on 25 August 2021.[1]  The letters indicate that the only payment that Mr Campion made to third parties that was credited was an amount of $200 paid on 29 January 2021 for school uniforms.  The letters also reveal that the total of the payments that Services Australia credited from the payments that Mr Campion said he had made directly to Ms Shorrock was $705, being payments of $125 made on 2 February 2018, 9 February 2018, 26 February 2018 and 23 March 2018 and a payment of $80 on 29 March 2018. 

   [1] Those letters are at pages 105 and 110 of documents Services Australia provided the Tribunal pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975 (the hearing papers)

6. With respect to all the payments that Services Australia refused to credit against Mr Campion’s child support liability, that is including payments he said he made directly to Ms Shorrock and payments made to third parties, Services Australia indicated within the letters it sent on 25 August 2021 that its reason for refusing to credit the payments was that there was “no mutual intention”.  That is an obvious reference to Services Australia not being satisfied that Ms Shorrock intended these payments to be in satisfaction of Mr Campion’s child support liability.

7. On 26 August 2021 Mr Campion objected to Services Australia’s decision not to credit the payments he said he made to Ms Shorrock directly and also objected to Services Australia’s decision not to credit the payments he claimed to have made to third parties.  On 21 October 2021 Services Australia disallowed his objection.

8. On 29 October 2021 Mr Campion applied to the Tribunal for review of Services Australia’s objection decision.  The Tribunal conducted an audio hearing with respect to his application on 14 December 2021, using Microsoft Teams.  Both Ms Shorrock and Mr Campion participated in that hearing and both gave affirmed oral evidence.  No one from Services Australia participated.  In addition to the oral evidence Ms Shorrock and Mr Campion gave, the Tribunal also had regard to the hearing papers and to documents that Mr Campion lodged with the Tribunal shortly before the hearing, which are marked A1–A4.  Mr Campion sought to provide further documentary evidence after the hearing, and he was given 24 hours to do so.  He did not provide any further evidence.

9. So that it is clear, Mr Campion did not object to Services Australia’s decision of 25 August 2021 to credit $705 against his child support liability from the payments he made directly to Ms Shorrock or the payment of $200 he made to a third party on 29 January 2021, and hence Services Australia’s decisions regarding those payments is not being reviewed by the Tribunal.

CONSIDERATION

1. In the circumstance where a parent’s child support obligation is registered to be enforced by Services Australia, subsection 71(1) of the Act requires Services Australia to credit against that parent’s child support obligation any payments that the parent makes to the other where both parents intended the payment would be in complete or partial satisfaction of the parent’s child support obligation.  Subsection 71A(1) requires similarly where the parent makes payments to a third party in satisfaction or partial satisfaction of a debt owed either by that parent or the other parent or both and where both parents intended the amount so paid to be in complete or partial satisfaction of the parent’s child support obligation. 

2. Mr Campion’s evidence to the Tribunal, with respect to the payments he made to third parties for the purchase of goods or services for the children, was that he never discussed with Ms Shorrock whether what he purchased would be in satisfaction of his child support obligation.  Ms Shorrock in her evidence confirmed that there was never any discussion and she also said that it was never her intention that whatever Mr Campion purchased for the children would be in satisfaction of his child support obligation.  She said that numerous of the things Mr Campion purchased remained within his house for the children’s use when they had contact with Mr Campion.

3. Given that evidence, the Tribunal is satisfied that Ms Shorrock did not intend the payments Mr Campion made that are described within the letters of 25 August 2021 by Services Australia as “third party payment” (with the exception of the payment on 29 January 2021 which is not germane to the present review), to be in satisfaction of Mr Campion’s child support obligation.  Services Australia’s original decision of 25 August 2021 not to credit those payments and its decision to disallow Mr Campion’s objection, insofar as it related to those payments, was accordingly correct. 

4. The Tribunal also decides that there will not be a credit under subsection 71A(1) of the Act for those payments.

5. There were also payments of cash that Mr Campion said he made to Ms Shorrock so that she could purchase specific items or services for the children.  Those payments were as set out in the table immediately below and were described within Services Australia’s letters of 25 August 2021 as being for the purposes shown adjacent to the payment:

20/04/2017	$120	[Child 2] - dancing
18/05/2017	$45	Kids - photo
29/05/2017	$250	[Child 1] - tutor
23/08/2017	$205	upstage
13/11/2017	$84	upstage

1. As the Tribunal understood Ms Shorrock’s evidence, there was never any discussion between her and Mr Campion regarding whether these payments for the provision of goods and services for the children were to be in satisfaction of Mr Campion’s child support obligation.  Her evidence was that it was not her intention that they would be. 

2. The Tribunal accepts her evidence in that regard.  Hence, with respect to these payments too, Services Australia’s original decision of 25 August 2021 not to credit them and its decision to disallow Mr Campion’s objection, insofar as it related to those payments, was also correct. 

3. The Tribunal also decides that there will not be a credit under subsection 71(1) of the Act for those payments.

4. There are also three payments of cash that Mr Campion said he made to Ms Shorrock in 2019 following his withdrawing the cash from automatic teller machines.  The first payment was in the amount of $400 on 21 January 2019.  The second payment was in the amount of $100 on 13 February 2019.  The third payment was on 22 March 2019 in the amount of $360 which Mr Campion said he gave to his mother so as to give to Ms Shorrock.

5. Ms Shorrock’s evidence was that she never received any cash from Mr Campion and never received any cash from Mr Campion’s mother.  The only evidence that Mr Campion provided with respect to these payments were statements from his bank account which confirmed the amounts had been withdrawn at a [teller machine].  That evidence confirms only that Mr Campion withdrew cash from a [teller machine] on those specific dates and not that he or his mother paid it to Ms Shorrock.  Given the time that has passed since he withdrew that cash, the Tribunal considers his evidence with respect to his paying or handing over those amounts of cash to Ms Shorrock or paying it to his mother so as to do so, is unreliable just by virtue of the passage of time.  Given that, and faced with Ms Shorrock’s evidence that she did not receive any cash, the Tribunal is not satisfied that those payments were made by Mr Campion to Ms Shorrock.

6. Hence, again Services Australia’s original decision of 25 August 2021 not to credit these payments and its decision to disallow Mr Campion’s objection, insofar as it related to those payments, was also correct and the Tribunal also decides that there will not be a credit under subsection 71(1) of the Act for those payments.

7. Mr Campion’s evidence with respect to the other amounts he paid directly to Ms Shorrock was that he did so by means of his electronically transferring the amounts from his bank account to Ms Shorrock’s bank account.  His evidence was to the effect that when he did so he included Ms Shorrock’s name in the description he provided within his account when processing the transaction. 

8. Ms Shorrock’s evidence was that she recalled receiving from Mr Campion payments that he had transferred electronically into her account in the amounts of $125, being the payments described within [5] above, which Services Australia credited against Mr Campion’s child support obligation under subsection 71(1) of the Act.  Her evidence was also that she recalled receiving other deposits electronically at times from Mr Campion which she acknowledged would have been by way of child support, but she could not remember the amounts or when they were paid.    

9. Mr Campion provided to Services Australia copies of his bank statements relating to the payments he made electronically from his account, which he included within the description Ms Shorrock’s name.  Those statements provide a contemporaneous record of his making those transfers and corroborates his evidence with respect to making those payments to Ms Shorrock.  The Tribunal considers his evidence with respect to making these payments to be reliable.  Ms Shorrock’s evidence, which was to the effect that she remembers receiving some payments but could not remember the amounts or when, does not contradict Mr Campion’s evidence relating to these payments.  In short, the Tribunal accepts that Mr Campion made these payments to Ms Shorrock and that it was the intention of both of them that they would be in satisfaction of his child support obligation.  Those payments are as follows:

21/02/2017	$100
07/03/2017	$250
20/03/2017	$250
21/03/2017	$80
07/04/2017	$100
13/04/2017	$200
01/05/2017	$200
15/05/2017	$200
15/05/2017	$20
12/06/2017	$200
13/06/2017	$30
26/06/2017	$200
10/07/2017	$150
31/07/2017	$200
07/08/2017	$200
23/08/2017	$250
08/09/2017	$250
26/10/2017	$250
17/11/2017	$200
05/12/2017	$100
07/12/2017	$500
19/12/2017	$29
22/12/2017	$250
19/01/2018	$350
29/01/2018	$275
12/03/2018	$250
19/03/2018	$150
06/04/2018	$150
13/04/2018	$150
20/04/2018	$100
27/04/2018	$150
14/05/2018	$150
25/05/2018	$150
11/06/2018	$150
15/06/2018	$150
22/06/2018	$150
29/06/2018	$150
06/07/2018	$320
16/07/2018	$150
03/08/2018	$450
14/08/2018	$150
16/08/2018	$250
24/08/2018	$150
04/03/2019	$500
06/03/2019	$300
09/02/2021	$200
18/02/2021	$100
23/02/2021	$20

1. Given the above, the Tribunal shall set aside the decision of Services Australia and substitute its decision that those payments be credited against Mr Campion’s child support liability pursuant to subsection 71(1) of the Act.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the amounts set out in the table at paragraph 23 totalling $9,274 be credited against Mr Campion’s child support liability.