Estabrooks and Estabrooks (Child support)

Mr Estabrooks applied to the Administrative Appeals Tribunal (the tribunal) for a review of decisions made by the Child Support Registrar concerning whether certain mortgage payments made by him could be credited as non-agency payments towards his child support liability for his two children. The dispute centred on whether payments made by Mr Estabrooks for land and house mortgages, which were in both his and Ms Estabrooks' names, should be recognised as satisfying his child support obligations. Ms Estabrooks, the children's primary carer, had opted for child support collection by the Child Support Registrar.

The primary legal issue before the tribunal was to determine if the mortgage payments made by Mr Estabrooks constituted non-agency payments under section 71A of the *Child Support (Registration and Collection) Act 1988* (the Act). This section allows for payments made to a third party to be credited against a child support liability, provided there is an enforceable maintenance liability and both parents intend for the payment to be in satisfaction of child support. The tribunal also had to consider the evidence regarding the intention of both parents concerning these payments and whether the payments included Ms Estabrooks' share of the mortgage responsibilities.

The tribunal found that the land and house mortgages were jointly held and that the responsibility for repayment was shared equally between Mr Estabrooks and Ms Estabrooks. It was also established that Ms Estabrooks and the children resided in the mortgaged property. The payments made by Mr Estabrooks represented the full weekly mortgage payments, thus including Ms Estabrooks' share. Crucially, while it had been previously determined that there was no mutual intention for these payments to be in lieu of child support, Ms Estabrooks stated at the hearing that she accepted her half of these payments was in lieu of child support. Consequently, the tribunal determined that 50% of the mortgage payments could be credited as non-agency payments under section 71A of the Act.

The tribunal set aside the decisions under review and remitted the matters to the Child Support Registrar for reconsideration. The direction was that 50% of the land mortgage and house mortgage payments in question were to be treated as non-agency payments under section 71A of the Act. The tribunal also noted that Mr Estabrooks would verify if all relevant payments had been considered, and Ms Estabrooks emphasised the importance of clear dating of payments to avoid confusion.