Carrell and Gotts (Child support)

[2021] AATA 2432

Carrell and Gotts (Child support) [2021] AATA 2432 (3 June 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC021236

APPLICANT:  Mr Carrell

OTHER PARTIES:  Child Support Registrar

Ms Gotts

TRIBUNAL:Member A Schiwy

DECISION DATE:  03 June 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – non-agency payment – whether payments made were in lieu of child support – intention of both parents – payments were not intended to be child support – 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. This application for review is about whether certain payments paid for by Mr Carrell should be credited as payment towards his child support liability (such payment being known as a non-agency payment or NAP).

2. Mr Carrell and Ms Gotts are the separated parents of [the child].  A child support case was registered with the Department of Human Services (Child Support) – now known as Services Australia (Child Support) in 2017 and Mr Carrell is the parent liable to pay child support to Ms Gotts.  Child Support began collecting payments from Mr Carrell in June 2020.

3. As at 21 November 2020 Mr Carrell owed $1,937.93 in child support with an ongoing liability of $37.22 per fortnight.  An amount of $1,069.48 was credited on 30 November 2020 and by 31 December 2020 Mr Carrell owed $827.29.

4. On 4 January 2021 Mr Carrell contacted Child Support and stated that he had made four payments to Ms Gotts that should be credited against his child support liability:

   ·22 October 2020          $200

   ·21 November 2020       $801.61

   ·3 December 2020        $800

   ·7 December 2020        $1,500

5. Ms Gotts agreed that the $200 was paid in lieu of child support and this amount was credited against Mr Carrell’s liability.  On 18 January 2021 Child Support decided not to credit the other payments as NAPs on the basis that there was no mutual intent for the payments to be in lieu of child support. 

6. On 27 January 2021 Mr Carrell objected to the decision not to credit the $800 and $801.61 payments and on 29 March 2021 a Child Support objections officer disallowed his objection. 

7. On 14 April 2021 Mr Carrell applied to this tribunal for a review of the objection decision.

8. A hearing was conducted on 3 June 2021.  Both Mr Carrell and Ms Gotts participated in the hearing by telephone and gave affirmed evidence.

9. The tribunal had before it a bundle of papers provided by Child Support and further evidence provided by Ms Gotts (B1 to B3) which was made available to the parents prior to the hearing.  

ISSUES

1. The legislation relevant to this review is contained in the child support law, in particular the Child Support (Registration and Collection) Act 1988 (the Act).

2. Section 71 of the Act states that if a payer makes a direct payment to a payee, the payment must be credited against the payer’s child support liability (subject to section 71D) if there was mutual intent that the payment was made in complete or partial satisfaction of child support.

3. In this case there is no dispute that the payments notified to Child Support were made to Ms Gotts.  The issue to decide is whether or not there was mutual intent that the payments were in lieu of child support.

CONSIDERATION

1. It is not disputed that Mr Carrell was living with Ms Gotts from around 22 October 2020 for a month.

2. Ms Gotts stated that:

   ·On 22 October 2020, Mr Carrell arrived at her house with only the clothes he was wearing.  He was mentally unwell, and he is an alcoholic.

   ·She agreed to allow Mr Carrell to live in a studio on her property and to look after him while he tried to get ‘clean and sober’. 

   ·Mr Carrell asked her to manage his money for him as he did not trust himself.  When he received his Centrelink payments he deposited them into her account.  He would have to ask her for money if he wanted to buy anything.

   ·They agreed he would pay $100 per week rent and $50 for utilities and she would take this and an amount for food, out of the money he gave her. She took him shopping to buy clothes and also gave him some money for spending. 

   ·After four weeks she decided the arrangement was not working and she was out of pocket. 

   ·The $1,500 payment was to repay loans she had made to Mr Carrell.

   ·She did not agree that the payments made to her account, apart from the $200, was for child support.

3. Ms Gotts provided a listing of payments she made to Mr Carrell which included a total of $734 while he was living with her.  The transactions also include various amounts prior to October 2020 including $500 for a [Item 1] and $300 for a [Item 2].

4. Mr Carrell told Child Support that he agreed that some of the payments were actually for living expenses (around $290 per week for three weeks).  He said the balance was for child support for [the child] and to assist Ms Gotts with expenses for her other child, [Child 2].

5. At the hearing Mr Carrell stated:

   ·He owed about $1,900 to Child Support and he wanted to clear this debt.

   ·Not all of the money he paid to Ms Gotts was for child support.

   ·He owed her some money but does not agree it was $1,500.

   ·He does not dispute that he stayed with Ms Gotts when he was unwell and that he wanted her to manage his money.

   ·There was no explicit agreement that the payments were for child support.

6. Mr Carrell’s own evidence is that there was no mutual intent that the payments were made in lieu of child support.  The tribunal accepts Ms Gotts’ evidence that the two payments were paid to her when Mr Carrell received his Centrelink payments, in order for her to manage his finances. 

7. As the tribunal found there was no mutual intent, it decided that the payments could not be credited as NAPs.

DECISION

The decision under review is affirmed.