Gamon and Gamon (Child support)

[2022] AATA 3074

Gamon and Gamon (Child support) [2022] AATA 3074 (19 July 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/MC023800

APPLICANT:  Mr Gamon

OTHER PARTIES:  Child Support Registrar

Mrs Gamon

TRIBUNAL:Member M Douglas

DECISION DATE:  19 July 2022

DECISION:

The decision under review is set aside and the matter is sent back to the Child Support Registrar for reconsideration in accordance with the direction that for the purpose of calculating the amounts to be treated as arrears amounts for the period 25 October 2021 to 24 January 2022 under subsection 28A(3) of the Child Support (Registration and Collection) Act 1988 Mr Gamon is to be treated as having paid child support of $2,114.40 in that period by having paid $1,159.40 to a third party in reduction of a car loan, $305 to the NAB in reduction of a credit card debt and $650 in cash payments to Mrs Gamon.

CATCHWORDS

CHILD SUPPORT - opt-in arrears - whether there were unpaid amounts by liable parent - decision under review set aside and sent back with directions

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 Gamon and Mrs Gamon are the parents of [Child 1], [Child 2] and [Child 3].  A child support assessment commenced for those children on 26 April 2020, obligating Mr Gamon to pay child support to Mrs Gamon. 

2. Mr Gamon’s liability to pay child support was not initially registered under the Child Support (Registration and Collection) Act 1988 (the Act).  This was due to Mrs Gamon, at the time she applied for an assessment to be made, electing under subsection 24A(2) for Mr Gamon’s liability not to be enforced under the Act.  

3. On 25 January 2022, Mrs Gamon applied under subsection 25(1) of the Act to have Mr Gamon’s liability registered under the Act and also applied under subsection 28A(3) for an amount of $4,606.76 to be treated as arrears of child support for the period 25 October 2021 to 24 January 2022.

4. On 22 February 2022, Services Australia decided that the amount of $3,399.79 ought to be treated as arrears of child support, which had the effect of that amount becoming a child support debt payable by Mr Gamon to Services Australia.

5. On 24 February 2022, Mr Gamon objected to Services Australia’s decision and on 27 April 2022 Services Australia “part allowed” his objection.  Services Australia, on that occasion, found that the total amount of child support Mr Gamon was obligated to pay under the extant assessment covering the period 25 October 2021 to 24 January 2022 amounted to $4,559.18.  It found that Mr Gamon had partly met his child support obligation to Mrs Gamon for that period by making car loan payments totalling $1,159.40 and by paying tolls and credit card bills and making cash payments to Mrs Gamon amounting to $1,355.12.  Services Australia found Mr Gamon did so in accordance with “a private” agreement between Mr Gamon and Mrs Gamon. In other words, based on Services Australia’s findings in its objection decision Mr Gamon had paid amounts totalling $2,044.56 in child support in the period 25 October 2021 to 24 January 2022 meaning that, of the amount of $4,559.18 he was assessed as being liable to pay Mrs Gamon and under the extant assessment he still had $2,024.67 child support outstanding. 

6. Services Australia consequently, by way of its objection decision, substituted its earlier decision of 22 February 2022 and treated the amount of $2,024.57 as unpaid child support by Mr Gamon for the relevant period which became a debt owed by Mr Gamon to Services Australia.

7. Mr Gamon has applied to the Tribunal for review of Services Australia’s objection decision. The Tribunal heard his application on 19 July 2022. He and Mrs Gamon participated in an audio hearing using Microsoft Teams and each gave oral evidence. The Tribunal has had regard to their evidence. The Tribunal has also had regard to a bundle of documents Services Australia provided to the Tribunal in accordance with subsection 37(1) of the Administrative Appeals Tribunal Act 1975 (marked 1–156).

ISSUES

1. The issue the Tribunal must consider is whether Mr Gamon paid all the child support he was liable to pay under the child support assessment for [Child 1], [Child 2] and [Child 3] for the period 25 October 2021 to 24 January 2022 and, if not, how much he has paid. 

CONSIDERATION

1. It is uncontroversial that Mr Gamon in the period 25 October 2021 to 24 January 2022 made weekly payments in reduction of a loan that had been contracted to enable a car to be purchased for Mrs Gamon’s use and that Mr Gamon and Mrs Gamon agreed the payments Mr Gamon made in reduction of that loan would be in partial satisfaction of his child support obligation.  Those payments totalled $1,159.40. 

2. It is also uncontroversial that Mr Gamon on occasion transferred some of his wages to a bank account that Mr Gamon and Mrs Gamon jointly held and that Mrs Gamon drew those monies from that account as child support.  Mrs Gamon’s evidence was that she does not have a copy of any statements for the account nor access to the account and so consequently she was and remains unaware regarding how much Mr Gamon transferred to her by this method as child support.  Mr Gamon had however, provided to Services Australia copies of transaction receipts downloaded from his online banking account from NAB that confirmed the transfers from his account to Mrs Gamon.[1]  It seems that Services Australia neglected to provide that material to Mrs Gamon when it made its decisions regarding the arrears of child support owing by Mr Gamon.

   [1] Services Australia file, pages 28–34

3. The Tribunal is satisfied that the amounts that Mr Gamon paid in reduction of the car loan in the period 25 October 2021 to 24 January 2022 and the amounts he transferred from his online banking account to the joint account, which in all totalled $1,809.40, were payments of child support by Mr Gamon to Mrs Gamon in that period. 

4. What is the subject of controversy between Mr Gamon and Mrs Gamon is whether payments totalling $305 that Mr Gamon made on 1 December 2021, 29 December 2021, 7 January 2022 and 12 January 2022 in reduction of a NAB credit card debt were intended by him and Mrs Gamon to be in partial satisfaction of his child support obligation.  Mr Gamon contended they were, whereas Mrs Gamon contended that Mr Gamon has asserted in negotiations that are occurring between them regarding a settlement of their property that the NAB credit card debt is a liability owing by him.  In other words, Mrs Gamon was concerned about what effectively could be “double dipping”  by Mr Gamon in that if Mr Gamon claimed any payment he made to reduce the credit card debt  as liability owing to him, then it could not also have the character as a child support payment by him to her.  If it is to be characterised as the latter, then she cannot be liable to him for the amount.

5. Mr Gamon indicated that he was not seeking that Mrs Gamon repay any monies he paid to reduce the credit card debt as part of their property settlement, but he listed the credit card debt as his liability because he was required to list all his liabilities and the debt was in his name. 

6. Within the Services Australia file there is a copy of an email that Mrs Gamon sent Mr Gamon on 15 December 2021 in which she said “of that and $50 of the NAB a week out of my child support”.[2] 

   [2] Services Australia file, page 22

7. There is also a copy of a text Mrs Gamon sent on 5 January 2022 to Mr Gamon which reads:

   I need to talk to you about child support.  I am going to need you to transfer me $50 a week to cover my childcare costs.  That still leaves $100 a week to go off NAB.  So I don’t imagine this will be an issue.  Thanks.  Can’t sleep.  Stressing about money.

   To which Mr Gamon respondent “no probs”.[3]

   [3] Services Australia file, page 16

8. Given those communications between Mr Gamon and Mrs Gamon, the Tribunal considers that it was the intention of Mrs Gamon and Mr Gamon that Mr Gamon would make payments in reduction of the NAB credit card and that if he did so it would be in partial satisfaction of his child support liability. 

9. That being the case, the Tribunal considers that in the period 25 October 2021 to 24 January 2022 Mr Gamon met $2,114.40 of his child support obligation by means of transferring cash of $650 to the joint bank account so that Mrs Gamon could draw upon it, by paying $1,159.40 in car loan repayments and by paying $305 in reduction of a credit card debt.  That is around $70 more than what Services Australia, by way of its objection decision, found Mr Gamon had paid. 

10. The Tribunal observes that for the relevant period the extant assessment is calculated on an adjusted taxable income for Mr Gamon that he elected to be used for him based upon what he estimated his taxable income would be.  That creates the possibility of Services Australia being required to carry out a reconciliation between Mr Gamon’s actual taxable income and the income amount he elected to be used as his adjusted taxable income.  Given that, the Tribunal considers that the best method by which to ensure the correct and preferable decision is made regarding the arrears amount owing by Mr Gamon is to set aside Services Australia’s objection decision and make a direction regarding the child support that Mr Gamon paid in that period.

11. The Tribunal determines accordingly.

DECISION

The decision under review is set aside and the matter is sent back to the Child Support Registrar for reconsideration in accordance with the direction that for the purpose of calculating the amounts to be treated as arrears amounts for the period 25 October 2021 to 24 January 2022 under subsection 28A(3) of the Child Support (Registration and Collection) Act 1988 Mr Gamon is to be treated as having paid child support of $2,114.40 in that period by having paid $1,159.40 to a third party in reduction of a car loan, $305 to the NAB in reduction of a credit card debt and $650 in cash payments to Mrs Gamon.