GAP-AAC and Child Support Registrar (Guidance and Appeals Panel)
[2025] ARTA 1843
•11 September 2025
GAP-AAC and Child Support Registrar (Guidance and Appeals Panel) [2025] ARTA 1843 (11 September 2025)
Decision and Reasons for Decision
GUIDANCE AND APPEALS PANEL
Applicant: GAP-AAC
Respondent: Child Support Registrar
Other Party: GAP-AAD
Tribunal Number: 2024/SC028002 GAP Reference Number: 2024-001-035
Tribunal: Deputy President K Dordevic
Place: Sydney
Date: 11 September 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides that the payment of $36,777.53 must not be credited against the other’s party’s child support liability pursuant to section 71 of the Child Support (Registration & Collection) Act 1988.
..........................[SGD]..............................................
Deputy President K Dordevic
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed 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 (Cth).
Catchwords
CHILD SUPPORT PAYMENT – enforceable maintenance liability – relevance of previous court family law proceedings – superannuation splitting – intention of payer and payee – statutory construction and determination of requisite intention – Child Support Guide – decision under review set aside and substituted
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Cases
Child Support Registrar v Thurber [2013] FCCA 417
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503
G v MIBP [2018] FCA 1229
PAJ & GMJ [2003] FamCA 751
Strauss v Strauss (1998) FLC 92-797
Whipp v Richards (2012) 257 FLR 395
Secondary Materials
Guides to Social Policy Law Child Support Guide – Version 4.92
Statement of Reasons
On 23 October 2024 the Tribunal at first review in the Administrative Review Tribunal’s (Tribunal) child support jurisdiction determined that a payment in the amount of
$36,777.53 made by GAP-AAD (father) to GAP-AAC (mother) was intended by them both to be paid in partial satisfaction of the father’s enforceable maintenance liability pursuant to subparagraph 71(1)(a)(i) of the Child Support (Registration and Collection) Act 1988 (Act).
On 18 November 2024 the mother made an application to refer that decision to the Guidance and Appeals Panel (GAP) for review.
On 6 January 2025 the President of the Tribunal referred that decision to the GAP in accordance with subsection 128(1) of the Administrative Review Tribunal Act 2024, as he was satisfied that the decision may contain an error of law materially affecting the Tribunal’s decision.
On 13 March 2025 the mother and father filed an agreed statement of facts with the Tribunal (marked Exhibit 2).
A hearing was held on 24 March 2025. The mother and father were self-represented and attended by Microsoft Teams - video. The Respondent was represented by counsel, who appeared in person and was instructed by Sparke Helmore Lawyers. In evidence were various documents filed with the Tribunal, including a joint hearing bundle (marked Exhibit 1). The Tribunal also had the benefit of oral testimony provided under affirmation from the mother and father.
Immediately following the hearing, the Tribunal issued orders in relation to the hearing and the conduct of the Respondent.1 Directions were made in relation to obtaining transcripts relating to family law proceedings in the following terms:
1 Not being relevant to the reviewable decision, the contents of this order and the response received dated 11 April 2025 are not set down in these written reasons.
1. On or before 15 April 2025, the [father] may provide the Tribunal with the Court hearing transcripts which he has elected to access.
2. On or before 29 April 2025, the parties are to provide to the Tribunal and each other any written submissions in response to the transcripts, or written advice that they do not intend to do so.
On 24 April 2025 the father advised the Tribunal by email that he received an transcription invoice of $9,480 for one hour of recording and he was not willing to pay that. He asked that the Tribunal subpoena the information.
On 29 April 2025 the Tribunal wrote to the Federal Court of Australia requesting a copy of the transcript of the proceeding dated 15 March 2023. On 12 June 2025 the Tribunal wrote to the parties to advise that there may be some delay in securing the transcript.
The Tribunal issued directions on 12 June 2025 in the following terms:
The Tribunal VACATES the directions dated 28 April 2025 and DIRECTS:
1. On or before 14 July 2025, the Respondent assist the Tribunal by providing written submissions on what factual findings are open to the Tribunal to make based on the evidence before it. This will include (though not exhaustive) submissions on considerations as to the quality and weight of the oral and documentary evidence provided by the Applicant and Other Party and draw attention to any inconsistencies or gaps in that evidence.
On 26 June 2025 the Tribunal received the transcript of the 2023 proceedings. A copy was provided to the parties on the same day.
A directions hearing was held on 14 July 2025. Directions were issued the following day stating:
The Tribunal VACATES the directions dated 12 June 2025 and DIRECTS:
On or before 29 July 2025 the Applicant, Respondent and Other Party are to provide any further submissions that they intend to rely upon, including in relation to the Federal Circuit and Family Court of Australia transcript dated 15 March 2023.
The mother, father and respondent provided their submissions in response on 29 July 2025.
The decision under review
On 23 August 2023 the father contacted Services Australia - Child Support (Child Support) to make an application for a payment made to the mother on 8 May 2023 to be credited to his child support liability.2 Such payments are generally referred to as ‘non- Agency payments’. On 28 August 2023 the mother contacted Child Support to dispute the father’s application.
On 27 September 2023 a delegate of the Child Support Registrar decided to credit
$36,775.53 against the father's child support liability.
On 6 October 2023 the mother objected to the decision. On 30 April 2024 a different delegate of the Child Support Registrar did not allow the objection.
On 18 May 2024 the mother applied to the (then) Administrative Appeals Tribunal for review of the decision of that decision.3 On 23 October 2024 the Tribunal at first review decided to vary the decision under review, such that the amount of $36,777.53 was credited as a non-agency payment in relation to father's child support liability.
Family law proceedings
The parents were engaged in protracted proceedings in the Family Court, Federal Circuit Court and in the Federal Circuit and Family Court of Australia (collectively, Court). It is necessary for the purposes of this review application to set out the history of those proceedings in some detail.
On 16 July 2015 final parenting and property orders were made in the Family Court (2015 orders). Relevant to this application it was ordered that:
…
2 TB1, folio 30.
3 From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
Property
…
28. The respondent will pay to the applicant on or before 31 October 2015 the sum of
$10,000 by way of lump sum spouse maintenance.
…
30. By way of further property settlement,
a. pursuant to section 90MT(1)(b) of the Family Law Act 1975, whenever a splittable payment becomes payable from the superannuation interest held by [the father] in [Superannuation 1], the trustee shall pay to [the mother] 65% of each splittable payment and there be a corresponding reduction in the entitlement [the father] would have had but for these Orders.
b. To ensure procedural fairness, the trustee of [Superannuation 1] may apply to this Court within 14 days of a copy of the Order being served on it to discharge or vary this Order.
c. The solicitors for the respondent will forthwith serve the Order as set out in Order 20(b)
…
32. Otherwise all existing applications are discharged (including the wife’s application for periodic spouse maintenance).
…
On 30 October 2020, upon application made by the father, the following orders were made in the Federal Circuit Court of Australia (2020 orders):4
UPON APPLICATION MADE TO THE COURT by the Applicant, [father], by telephone on his own behalf and Ms [A] by telephone for the Respondent.
UNTIL FURTHER ORDER, THE COURT ORDERS THAT:
1. Within 7 days of the date of these Orders, being 6 November 2020, the solicitors for the Respondent are to notify the Court what has occurred in relation to enforcing/accessing the Applicant's superannuation fund pursuant to the Final Orders of 16 July 2015. Subject to what has been able to occur, the Court requests that the solicitors for the Respondent advise the Court what the next steps for the matter are.
2. Within 14 days of the date of these Orders, being 13 November 2020, the Applicant is to file and serve a financial statement.
3. The Orders of 16 July 2015 are varied such that an extra $10,000 is taken from the superannuation interest held by [the father] in [Superannuation 1] in order to satisfy Order 28 of the Orders dated 16 July 2015.
4 TB11B, folios 369 to 370.
THE COURT NOTES THAT:
A. If there is further non-compliance with Court orders by the Applicant, there is a risk of default judgement being entered against him.
An application for enforcement of the 2015 orders was made by the mother. In evidence are the online submissions made on behalf of the mother in respect of the enforcement hearing, sealed on 3 February 2021 (2021 submissions).5 Within that application it was reported that the father had a child support liability of $53,916.21 and that he had reported that he does not have the financial capacity to comply with his child support obligations.6 It was also alleged that the father had failed to make a full and frank financial disclosure and, in particular, that he was in receipt of undeclared employment income.7
It went on to state:8
…
Key Issue – Superannuation Splitting Order
15. Order 30 requires the Husband to pay to the Wife 65% of his superannuation. There are 2 issues.
a. The first is that the superannuation order should be amended to reflect a base amount, that being the amount that the Wife would have in her superfund today had she had the benefit of the splitting order back in 2015.
b. The second is that the Wife’s solicitor has written to the Husband’s superfund for procedural fairness and the Husband’s superfund has requested that amendments be made to the Orders (filed 2/2/2021 as correspondence).
16. The Wife engaged a superannuation valuer [to] assess the current value of the 2015 superannuation splitting amount. A copy of the valuation was filed on the portal on 2 February 2021 as ‘correspondence’. Had the split occurred in 2015, the amount would have been $20,917.81. The current value of that amount is assessed as $30,716.44. The Wife has lost the benefit of accruing almost
$10,000 interest on her super had it been transferred to her pursuant to the orders.
17. The Husband was legally represented in the 2015 property proceedings. The Wife was not. The Orders required the Husband’s solicitor to serve the notice on the superfund (Order 30c). The Wife made several attempts to contact the Husband’s solicitor but received no reply (Wife’s affidavit sworn 5/8/2020 para7).
5 TB1, folios 20 to 23.
6 TB1, folio 20.
7 TB1, folios 19 and 20.
8 TB1, folios 22 and 23.
18. A just and equitable outcome would see the Wife receive a superannuation amount of
$30,716.44 as per the superannuation valuation.
19. The superannuation splitting order should be amended as per the Orders Sought.
…
Wife’s Minute of Orders Sought
Spousal maintenance
1. That subject to Order 2 herein, within 7 days of the date of these Orders, the Husband pays to the Wife the sum of $10,000 by way of lump sum spouse maintenance plus interest as determined by the Court in accordance with Section 117B of the of the Family Law Act 1975.
2. That in the alternative to Order 1, the Court makes an order that it sees fit to satisfy the payment of $10,000 plus interest, by way of lump sum spouse maintenance.
Superannuation
3. That in accordance with section 90XT(1)(a) of the Family Law Act 1975, whenever a splittable payment within the meaning of section 90XE of the Act becomes payable in respect of the Husband’s interest in the Fund, the Wife is entitled to be paid an
amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulation 2001 using a base amount of $30,716.44 and there is a corresponding reduction in the entitlement that the Husband would have had but for these Orders.
4. That Order 3 has effect from the first operative time and the first operative time is four business days after a sealed copy of these Orders has been served upon the
Trustee.
Child Support Liability
5. That within 7 days the Husband makes the necessary application to the Registrar of the Child Support Agency for collection by automatic withholding from [Company]
Pty Ltd for the purpose of collecting both the Husband’s ongoing child support liability and child support arrears.
6. That for the purpose of Order 5, in the event that the Husband ceases receiving wages from [Company] Pty Ltd, the Husband is required within 7 days of its cessation, to notify the Child Support Agency of the details of whom he receives wages from, for the purpose of ongoing collection.
…
On 8 February 2021 following orders were made on a final basis (2021 orders):9
…
THE COURT NOTES THAT:
A. Final Orders were made by the Family Court of Australia on 16 July 2015 but for reasons that are unknown the superannuation splitting Order, and the Order in relation to spouse maintenance were not complied with. These Orders are supplementary to the July 2015 Orders and are intended to give effect to them;
THE COURT FURTHER NOTES IN CHAMBERS THAT:
9 TB1, folios 38 to 40.
B. During the Enforcement Hearing it was contemplated that an Order be made allocating $10,000 to the Wife out of the Husband's superannuation in order to satisfy a lump sum spouse maintenance order;
C. Order 3 of the Orders dated 30 October 2020 varied the Orders of 16 July 2015 such that an extra $10,000 was to be taken from the superannuation interest held by [the father] in [Superannuation 1] in order to satisfy Order 28 of the Orders dated 16 July 2015;
D. As such, that Order does not need to be made again accordingly,
ON A FINAL BASIS, THE COURT ORDERS THAT:
1. In accordance with section 90XT(1)(a) of the Family Law Act 1975, whenever a splittable payment within the meaning of section 90XE of the Act becomes payable in respect of the Husband's interest in the Fund, the Wife is entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulation 2001 using a base amount of $25,000.00 and there is a corresponding reduction in the entitlement that the Husband would have had but for these Orders.
2. Any remaining monies in the Husband's superannuation fund be released and paid in satisfaction of any outstanding child support debt.
3. Any remaining sum owing in relation to child support debt, subject to any bankruptcy requirements, be determined as between the child support agency and Husband and calculated in affordable increments so as to discharge the child support debt.
…
(Emphasis added)
The agreed statement of facts indicate that on 2 March 2021 the mother contacted [Superannuation 1] in respect of the 2021 orders.10 On 17 March 2021 [Superannuation 1] advised the mother that they were unable to comply with the orders and requested an amended final order.11 The mother made a further request to [Superannuation 1] on 16 November 2021, who indicated on 23 November 2021 that they had no objection to the making of final (amended) orders.12
On 20 February 2022 the mother (only) signed Minutes of Orders Sought, (2022 Minutes of Orders sought) which relevantly said:13
MINUTES OF ORDERS SOUGHT
10 Exhibit 2, page 3.
11 TB3, folio 283.
12 TB3, folio 288.
13 TB1, folios 31 to 32.
1) In accordance with Section 90XT(1) (b) of the Family Law Act 1975 (the Act), whenever a splittable payment within the meaning of section 90XE of the Act becomes payable to or on behalf of [the father] (Member Number: [redacted]) from his interest in [Superannuation 1], [the mother] is entitled to be paid by the Trustee of [Superannuation 1] the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a percentage amount of 100% and there is a corresponding reduction in the entitlement [the father] would have had but for these Orders.
2) The operative time for order 1 is four (4) business days after service of the final sealed orders on the Trustee.
3) The previous orders made on July 2015, October 2020 and February 2021 are revoked.
IT IS NOTED
A. The parties note that these Orders, and payments made as a result, will be affected by the Superannuation Legislation Amendment (Family Law) Act 2004 which came into effect on 18 May 2004 and the Family Law (Superannuation) Regulations 2001 which together provide for a separate superannuation interest to be created for the non-member spouse and for consequential effects on payments.
In evidence is an email authored by the mother dated 28 February 2022 with the subject line reading CAC704/2020 Orders and sent to an associate of the Judge, with the father copied, relevantly stating (2022 correspondence):14
Dear Registrar and Associate,
I am the Applicant in these proceedings. I am writing to you seeking for the Federal Circuit Court Orders dated 8 February 2021 to be amended under the ‘slip rule’ in accordance with rule 16.05 (e) of Federal Circuit Court Rules 2001 (Cth).
Please see attached:
1.acopy of the current orders; and
1.b copy of the proposed amended orders I note the respondent has not replied to me and I have cc’d them into this email.
2. Letter from [Superannuation 1] rejecting the current orders (password [redacted]).
4. Email from [Superannuation 1] approving the amended orders (password [redacted]).
The current orders (order 1) provides I will receive a $25,000 super split from the Respondent from his interest in [Superannuation 1]. However, I have been told by [Superannuation 1] that these orders need to specify an operative date and need to refer to s90XT (1) (b) of the Family Law Act 1975 (Cth) for the trustee to make the orders.
Currently, the orders do not include any operative date and refer to s90XT (1) (a) of the
14 TB1, folios 33 to 34.
Family Law Act 1975. My understanding is the orders were worded this way to acknowledge part of the super payment is in satisfaction of a child support debt. I have now included this as a notation so the orders can be made.
I respectfully seek the proposed amended orders be made as there is an error arising from an accidental omission and clerical mistake made in the orders.
(Emphasis added)
On 1 March 2022 the Judge’s associate emailed the mother and the father’s legal representative requesting confirmation that the father consented to the amendment pursuant to the slip rule.15 The mother responded on the same date stating that the father has not replied to any requests to resolve the matter and asked that the matter return to Court.16 Later that day the father emailed the mother, the associate and his legal team advising that he would not consent to the orders as proposed by the mother:17
Can you amend these orders that I need to sign so that it reflects what was in the orders given by the judge.
As your example above, the order needs this in there so I can give it to child support. When you have them amended please send them through and it will be signed.
At the moment I can’t sign what you’ve given me.
On 13 December 2022 the Judge ordered that, Orders 1, 2 and 3 of the 2021 orders be stayed and that, absent any other application being made in 28 days, the 2021 orders would be discharged.18
In evidence is an SMS dated 15 December 2022 (SMS) from the father to the mother indicating that after he spoke to Child Support the 2021 order can be applied, as long as both parents agree, and if they did, he would have his lawyer draw up an agreement.19
On 5 January 2023 the mother affirmed an affidavit (2023 affidavit) in support of her initiating application to make proposed draft orders in relation to superannuation splitting.20
15 TB11g, folio 387.
16 TB11g, folio 388.
17 TB11g, folio 388.
18 TB2, folio 244.
19 TB11a, folio 364.
20 TB3, folios 265 to 269.
On 9 March 2023 the father affirmed an affidavit to have the 2015 orders finalised and the remainder of his superannuation be paid in respect of his outstanding child support.21 In respect to the parenting proceedings in December 2022 the father stated:22
13. During court proceedings for the children on 12 and 13 December 2022, it was made clear that these orders could not be complied with and the parties would need to move to make consent orders to satisfy (sic) the 2015 splitting order and child support arrears, hence these proceedings.
On 13 March 2023 the father completed a Response to Initiating Application and in response to the question ‘Are there any facts in the Initiating Application which are not agreed’ the father placed a X in the Yes box and wrote:23
We've tried to have this resolved a few times, most recently on December 13 during parenting matters.
My solicitor and Barrister had come to the conclusion that [the Judge] could'nt (sic) write an order to serve to child support.I think this correct if both parties or only one party agrees.
If we can get a consent order in place which is both ageed (sic) on, child support can use this as an order from [the Judge] and we'll have it all sorted.
On 13 March 2023 the mother’s solicitor wrote to the father stating that it was assumed that he was in agreement with the mother’s application as [Superannuation 1] is unable to comply with a superannuation split in the terms of the 2021 order.24
The father responded to this email just over 30 minutes later:25
Yea I think I agree with it. The problems been the way it’s been written, needs to be drafted by a solicitor who knows what they’re doing with it. I’ve no issues with all the super going to [the mother], it all just needs to be above board with what the amount is for.
The order need to be that 100% of super goes to [the mother], in principle for super splitting order from a separation. They should then release the funds. If we write in there all the splitting stuff they’ll keep rejecting it. Then we need a consent order from the judge that outlines what the amount received by [the mother] is actually for. I can then give that to child support for the part of arrears it meets.
On 13 March 2023 at 3:52 PM the mother’s solicitor wrote to her and indicated that the father was in agreement with the proposed orders but wanted to clear some arrears with
21 TB3, folios 302 to 305.
22 TB3, folio 304.
23 TB11F, folio.
24 TB10a, folio 359.
25 TB10a, folio 358.
Child Support, recommending that this could be done by way of notation.26 The mother responded on the same day at 4:57 PM advising “I do not agree for child support to be taken out of super because…”.27 She went on to outline her calculations as to why the transfer of $61,013 would satisfy the transfer of superannuation in the 2015 orders, her legal expenses and interest. No reference was made to any part of the transfer representing a child support payment.
The Tribunal had the benefit of the transcript of the proceedings on 15 March 2023. Relevant to this application it stated:
…
HIS HONOUR: Okay. Thank you. So everyone has filed their material after our discussions last year. The only thing, subject to hearing from, perhaps – well, from either party – just in a moment. The mother has attached to her material, a letter that she received from [Superannuation 1] dated 23 November 2021. There doesn’t appear to be anything more recent. And then, a copy of a minute of order, providing for a splitting order for 100 per cent of the father’s super to be provided to the mother. And that, according to this letter from November 2021, [Superannuation 1] says, that from their perspective, there’s no problem with that order. Is that a fair and accurate description? Firstly, from you [Mr B]? From your client’s perspective?
[MR B]: Yes. Yes, it is. Yes, it is, your Honour.
HIS HONOUR: Right. And in general terms, [father], from what I understand. Both from when we were together last year, but also from what you’ve filed by way of response. You basically agree with the terms of the order that 100 per cent of the super will go to the mother. Yes?
[The father]: Yes. Look, I agree that 100 per cent of the super should go to the mother. I think all we need, I guess, from the court is just an order that relates to that 100 per cent. So that it’s, you know, one – one is for this, one is for that. One is for child support. And then I think everything should be – everything should be good, I think.
HIS HONOUR: And then, can I ask this, [father]? Is there any agreement between you and the mother – because I’m assuming you’re back working now, are you?
[The father]: Yes. I’m working. Yes.
HIS HONOUR: Right. So is there any ongoing agreement in relation to child support payments, etcetera?
26 TB2, folio 238.
27 TB2, folio 238.
[MR B]: No, there isn’t, your Honour. The trustees indicated, in annexure C to the mother’s affidavit, that they are unable to comply with the superannuation split as sought by the father because they have no control or knowledge of how that is dealt with.
HIS HONOUR: No. I understand that. Yes.
[MR B]: So an order setting out the split, as envisaged by the father. It cannot be made, in my submission.
HIS HONOUR: No. I understand that, but really the main thing is that – whether it’s by way of notation or otherwise – the first and most important thing is for the splitting order to be made.
[MR B]: Yes, it probably could be – it could be done.
HIS HONOUR: And then, how that’s attributed, so to speak. Really, at one level, is neither here nor there. The main thing is that the mother gets the splitting order in her favour. But my question, to which the father responded – perhaps from another perspective – was from here on, what arrangements, if any, are there regarding any child support payments?
[The father]: Yes, your Honour. So there’s – I’ve been paying $200 a week. And that just gets direct debited.
HIS HONOUR: Right.
[The father]: It has been since last year at some stage. HIS HONOUR: Right.
[The father]: That just – that just gets direct debited weekly. HIS HONOUR: Okay.
[The father]: So that’s – and that will continue to be - - -
HIS HONOUR: No, no. That was really what I was inquiring about. But really, it seems to me, that the only thing that I can do, and should do today, is simply make the order as proposed by the mother. Which is agreed to by the father. Namely, for the splitting order for 100 per cent of the super to go to the mother. And then, in terms of any attribution, so to speak – as to what it covers. That’s not something that the court can actually make anything about in terms of orders. The court may be able to – simply to make a notation that, from the father’s perspective, that this is meant to cover matters wider than child support. But in terms of the actual order, I can only make it in terms as sought by the mother.
[MR B]: Yes, that would be suitable. Thank you, your Honour.
HIS HONOUR: Very well. So I will make a notation to the effect, that the father seeks that the splitting order covers matters beyond child support. But for the purposes of the
jurisdiction and the powers of the court generally, the court can only make orders as sought by the mother. With which the father generally agrees, in terms of 100 per cent of the super – be made in terms of that splitting order. Which I now make. Very well.
[MR B]: Thank you, your Honour.
HIS HONOUR: So this will finalise matters from the court’s perspective. Very well. [MR B]: Thank you.
[The father]: Yes. Your Honour, just one final question though. So with regard to the notation.
HIS HONOUR: Yes.
[The father]: Will that – will have in there that, you know, part of it is for the spousal maintenance from orders made in 2015? And then, another 15,000 to satisfy the super splitting order from ’15. And then, the remainder to satisfy child support arrears? Because if I don’t – if I don’t have something in there like that, as soon as we leave this court session, that 100 per cent super will go to [mother]. Obviously, which is agreed on. But then what that order actually is, I suppose, supposed to serve. Then it’s just kind of throwing up the cards. And, you know, you’re kind of in another argument where she says, “Well, no, this is all in hindsight.” And if she says, “Well, no, I don’t agree that that was paying that. I don’t agree that that was paying that. And I don’t agree that the rest was for child support”, then where does that leave me?
HIS HONOUR: Well, the rest of the orders as sought by the mother. Proposed order 3, refers to orders made in July 2015, October 2020, and February 2021. That they are – it says, revoked. It should be discharged. And maybe [Mr B] is able to clarify this. But I’m assuming that those orders – I haven’t gone back and double-checked them – that those orders cover all those other matters. So that with those orders being discharged, each of those other matters that you’re raising, [father], they also go away.
[The father]: Okay.
[MR B]: Yes. That’s what the application of the mother covers. Those other orders that were made in relation to a splitting into the various categories are discharged.
HIS HONOUR: Yes. Yes.
[The father]: Yes.
HIS HONOUR: Okay, [father]? So that order 3 should cover all those other matters. Because all those previous orders are now discharged.
[The father]: Okay. HIS HONOUR: Okay.
[MR B]: Thank you, your Honour.
HIS HONOUR: Very well. Thank you all. We can let you go. [The father]: All right. Thanks, your Honour.
On 15 March 2023 orders were made as between the parties on a final basis and by consent as follows:28
UPON APPLICATION MADE TO THE COURT by the Applicant, [the father], by telephone on his own behalf and [Mr B] by telephone for the Respondent.
THE COURT NOTES THAT:
A.The Father seeks the splitting order shall be taken to cover matters beyond child support, however, the Court may only make Orders as sought by the Mother with which the Father has agreed for the splitting of super; accordingly,
ON A FINAL BASIS, THE COURT ORDERS BY.CONSENT THAT:
1.In accordance with Section 90XT(1)(b) of the Family Law Act 1975 (the Act), whenever a splittable payment within the meaning of Section 90XE of the Act becomes payable to or on behalf of [the father] (Member Number: [redacted]) from his interest in [Superannuation 1], [the mother] is entitled to be paid by the Trustee of [Superannuation 1] the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a percentage amount of 100% and there is a corresponding reduction in the entitlement [the father] would have had but for these Orders.
2.The operative time for Order 1 herein is four (4) business days after service of the final sealed orders on the Trustee.
3.The previous Orders made on 16th July 2015, 30th October 2020 and 8th February 2021 are discharged.
4.All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the docket.
AND THE COURT NOTES THAT:
8.The parties note that these Orders, and payments made as a result, will be affected by the Superannuation Legislation Amendment
28 TB1, folios 14 to 18.
(Family Law) Act 2004 which came into effect on 18 May 2004 and the Family Law (Superannuation) Regulations 2001 which together provide for a separate superannuation interest to be created for the non- member spouse and for consequential effects on payments.
At 2.01PM on 15 March 2023 the father wrote to the mother’s solicitor stating:29
Hi [Mr C],
No problems, I think it’s best if I get something from yourself outlining what the 100% super is for. I’ll need something to give child support that reflects what’s been paid to [the mother]. Obviously it’s all been agreed to in previous court orders and communications but if we have it in writing it’s going solve (sic) a lot of problems later if she decides to disagree. After my discussions with child support they’d do an investigation if she disagrees and we have all the documentation from previous court dates and the like, so it would get approved but would solve a heap of drama if we get something written down to give them. I’ll get a figure from super to see exactly how much is there and how much each split would be, thinking you would be doing the same anyway but good to know. Thanks!
The mother’s solicitor apparently forwarded this email to the mother minutes later stating “He just doesn’t get it! It’s a 100% to you, and that’s it”.30 The mother responded 16 minutes later stating “He doesn’t get it at all. I believe he was hoping that he would have no liability to his child support debt and I would absorb all that for him. Please do not waste your time replying”.31
On 20 March 2023 the mother’s solicitor wrote to the mother and relevantly advised:32
Application for Super Splitting Order
We refer to completion of your matter in relation to your receiving, when it falls due, 100% of [the father’s] super entitlement.
[The father] is of the view that the super payment is apportioned to suit his indebtedness.
The notation attached to the Court Order makes it abundantly clear that the Court cannot make such an Order, nor can the Trustee of the fund make such a declaration.
We note your advice that you were serving the sealed Orders upon the Trustee and that you would then deal directly with the trustee of the fund.
29 TB2, folio 239.
30 TB2, folio 240.
31 Ibid.
32 TB1, folio 19.
On 8 May 2023 [Superannuation 1] transferred $61,777.53 from the father’s superannuation account.33 After a payment instruction form was received by [Superannuation 1] in March 2024 the transfer to a superannuation account nominated by the mother was completed on 28 March 2024.34
CONSIDERATION
The Act is concerned with the registration, enforcement and collection by the Child Support Registrar of child support liabilities. The principle objects of the Act are to ensure that children receive the financial support that their parents are liable to provide and that amounts payable by parents for the maintenance of their children are paid on a regular and timely basis, as well as that Australia gives effect to its obligations under international agreements or arrangements.35
It is not in dispute that the mother and the father are the parents of two children for whom they share parental responsibility. A child support case was registered with Child Support on 6 December 2013 and has been collectable since that date.
Section 17 of the Act states that a ‘registrable maintenance liability’ is a liability of a parent of a child to pay a periodic amount to a parent or of a child.
Section 30 of the Act states that if a ‘registrable maintenance liability’ is registered under the Act, that liability is a debt due to the Commonwealth.
Part V of the Act deals with the payment and recovery of child support debts.
Section 71 of the Act permits the crediting of a payment made to a third party on behalf of the payee of an enforceable maintenance liability in lieu of a payer’s child support liability in certain circumstances:
71 Direct payments to payee
(1) Subject to section 71D, if:
33 TB1, folio 35 and TB12, folio 478.
34 TB2, folio 242.
35 Section 3 of the Act.
(a) either:
(i) the payee of an enforceable maintenance liability receives from the payer an amount intended by both the payer and the payee to be paid in complete or partial satisfaction of an amount payable under the liability in relation to the child support enforcement period; or
(ii) the payee of a carer liability receives from the payer an amount intended by both the payer and the payee to be paid in complete or partial satisfaction of an amount payable under the liability; and
(b) the payer or the payee applies to the Registrar to have the amount received by the payee treated as having been paid to the Registrar;
the Registrar must, despite sections 30 and 69B, credit the amount received by the payee against the amount payable under the liability.
(2) An application must be made in the manner specified by the Registrar.
Note: Section 16A provides for the Registrar to specify the manner in which an application may be made.
(3) This section does not apply to an enforceable maintenance liability of a kind referred to in paragraph 18A(3)(a).
Section 71D of the Act states:
71D Registrar may refuse to credit amounts in special circumstances
The Registrar may refuse to credit an amount under section 71, 71A or 71C if satisfied that, in the circumstances of the particular case, the amount ought not to be credited.
The case law is clear; without both the payer and payee shared intention, there can be no crediting of a non-Agency payment: Child Support Registrar v Thurber [2013] FCCA 417 (Thurber).36 It is not sufficient for a payer to make a payment and ask that it be treated as a payment of child support in the absence of a mutual intention.37 Thurber also set down that it is not sufficient for the payer to make a payment and ask that it be treated as a payment of child support in the absence of such agreement. 38
36 at [70].
37 Ibid at [69].
38 Ibid.
The question then is when this intention must be held. That is, is it sufficient that it was held at some time prior to receipt or must it be at the time the payment is made?
It is without doubt that the task of statutory construction starts and ends with the text.39
I accept the Respondent’s submissions in respect of the term ‘intention’ and the meaning that can be derived from subparagraph 71(1)(a)(i) of the Act. I adopt the Respondent’s submissions that the word ‘intend’ is an ordinary English term that should be given its ordinary meaning which is to have in mind as something to be done or brought about or to design or mean for a particular purpose. The use of the past participle ‘intended’ can refer either to “they had intended” (past perfect tense) or “they have intended” (present perfect tense), where the object of the intention is the amount received. Therefore, the word ‘intended’ as set down in subparagraph 71(1)(a)(i) of the Act calls for an enquiry as to the intention held by both the payer and payee when the amount was received by the payee. There can be no doubt that to determine that the intention could exist at a prior time but not at receipt would sever the connection between the intention and its object.40
The logic underpinning this construction is set down in Whipp v Richards.41 The Full Court of the Family Court stated that the use of the words ‘intend’ and ‘agreed’ as apparent in the reasoning of the Full Court in Strauss v Strauss42 is to ensure that a payee continues to receive the assessed amount of child support payable when such an intention does not exist.43
Such an interpretation is to be preferred. To require that an earlier intention was sufficient would mean that once a party holds an intention it is incapable of being changed, irrespective of any change to their or the other party’s circumstances or wishes. Such an interpretation would frustrate the aim to ensure that a payee continues to receive regular payments to meet the needs of a child in their care.
39 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ).
40 Respondent’s written submissions dated 3 February 2025 at [9] to [10].
41 (2012) 257 FLR 395 at [198]-[200] (Coleman, Thackray and Young JJ).
42 (1998) FLC 92-797.
43 Whipp at [200].
This construction is also consistent with the Child Support Guide, version 4.92, which states at 7.5.1:
Was the payment intended to be in lieu of a child support payment or carer debt?
The Registrar will accept a parent's advice that a payment received or the value of goods or services provided by the other parent were intended as a payment towards child support or a carer debt.
Where the parents disagree, the Registrar will seek evidence from both parents and decide, on the basis of that evidence, whether the relevant intention existed when the payment was made.
The Registrar will seek oral statements (or written, if either parent cannot be contacted by telephone) from both parents about their intention at the time the payment was made and the circumstances surrounding the payment. Before making a decision, the Registrar will discuss the evidence with both parents, so that they have an opportunity to respond or expand on their statements.
If the Registrar cannot obtain a statement from one of the parents, the Registrar will consider a statement made by the other parent and any other available evidence.
In making a decision, the Registrar will take into account the following factors:
·Whether the parents have agreed that previous payments made in similar circumstances were for child support, as this may indicate the same intention in relation to the present payment.
·The circumstances in which the payment was made. For example, where a payer has made payments or provided goods as part of a contact visit, this may have occurred without the prior knowledge or consent of the payee.
·Any documents that support the case of either parent. For example, if there were legal proceedings in progress at or before the time of the payment, there may be relevant documents which refer to payments made by the payer to the payee or a third party.
·Sometimes the notations on a court order will refer to the payment of expenses. While notations are not part of the court order, they may support the proposition that a parent has agreed that they are separately or jointly responsible for certain payments.
·Whether one of the parents has previously stated that payment was to be credited, but subsequently changed their statement. The Registrar will examine both statements to determine what their intention was at the time the payment was made.
Whilst the Tribunal is not bound to follow this policy, if it is not followed, there must be cogent reasons not to do so: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577. In the recent case of G v MIBP [2018] FCA 1229, the Federal Court observed that it is clear from earlier authorities that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task.
It follows that without mutual intention at the time of receipt, there can be no crediting as a non-Agency payment.44 The task of the decision maker is to determine the intention of both the payer and payee when the amount is received by the payee. A decision maker, including the Tribunal, would fall into legal error if it determined otherwise.
The Act does not require an express statement of intention between the payee and payer. Therefore, a payee’s conduct may make it apparent that an intention exists or no longer exists. The enquiry is an objective one and will turn on the facts of a particular case.
The mother’s submissions
The mother’s submissions and oral evidence is summarised as follows.
The decision made by this Tribunal at first review is legally and factually incorrect. There never was a joint intention for the payment from the father’s superannuation to be credited to his child support liability. Further, the decision under review refers to such intention at a time earlier than receipt of the payment by the mother, and this was a legal error. There was also a failure to consider section 71D of the Act.
The mother explained that the father simply did not cooperate with attempts by her to ensure the superannuation split occurred as per the 2015 orders. She could not get access to those funds and was forced to bring further applications to the Court to enforce those, and subsequent, orders. This finally occurred in 2023.
She denied that the 2021 orders in respect of part of the father’s superannuation funds being applied to his child support liability were made with her consent. The 2021 orders were made following a contested hearing. It was the Court’s idea to apply some of the father’s superannuation towards his child support debt. She never agreed to that; the Court did not listen to what she had to say. She stressed that the transcript from that hearing would indicate that this was so. She understands that the order in those terms were only made because the father had advised the Court that he was filing for bankruptcy and therefore had no other funds from which to meet his child support liability. She understood
44 Thurber at [70].
that the orders were made to ensure that the father had some money available to him after he declared bankruptcy.
In respect to her 2022 submissions45 the mother explained that she was simply summarising the 2021 orders, rather than stating her previous or current intention as to the purpose of the funds. She went on to state the decision at first review conflated her intention with the Court’s intention in having the child support liability credited. She again reiterated that the 2021 orders were not made by consent.
As to the 2023 orders the mother stated that she was late to the hearing. She arrived when the father was advising the Court that he wanted part of his superannuation applied to the child support debt. She can provide no insight into what the term “beyond child support” means, it simply does not make sense to her. The notation was not drafted either by her or by her solicitor. She had made it clear to her solicitor that she would not agree to the crediting of the child support liability from the father’s superannuation funds. If she were to agree, she would have missed out on funds from the property settlement that should have been transferred to her in 2015. She sought to have the father’s full superannuation account transferred to represent the original property transfer in addition to legal fees, and interest forgone because the father did not comply with the 2015 orders.
The father’s submissions
The father’s submissions and evidence is summarised as follows.
It was “really simple”. He did not give all of his superannuation for “free”. The documents in evidence make clear what the money was for.
The 2021 orders were agreed to by him and the mother and were made by consent. Even though the 2021 orders do not look like they were by consent, they were. He was bankrupt at the time. The Court was told that there was no money anywhere, so the only way to meet his child support debts was from his superannuation. The Judge did not make the orders “on his own back”.
45 As set down at [38].
In his view, the only “grey area” is the transcript from the 2021 and 2023 Court hearings. The transcripts will show that the mother agreed to the 2021 orders. He had not sought a transcript because the compelling evidence he provided is evidence enough of the joint intention. None of the evidence in front of the Tribunal says anything different.
The father stressed that as soon as the superannuation was transferred, it was suddenly the case that the mother no longer agreed for it to be credited. His lawyer told him in late 2022 that it would “end badly” as the Court did not have jurisdiction over child support and they were right because “that is where we are exactly today”. He went on to state:
So, but on that day in court, I actually rang child support. I think I even rang them twice to say if this was put in orders, can it be complied with? And Child Support told me twice that yes, could be complied with if you both agree. You know, the problem that we had on that day of trying to get it written into orders.
In fact, he recalls receiving legal advice from his solicitor in 2022 that once he transferred the funds the mother would not agree to the crediting. When he raised amending the 2021 orders his solicitor said “do not go down that path. Do not do that because she’s going to disagree to it, so she understands what position that I was in, but, you know, I thought if it was all agreed to. All about board, I thought it would be okay, to be fair”. Despite this advice, he considered that he had enough evidence, and the only “fuzzy bit” is because the transcripts are not in evidence.
The father confirmed that he was concerned that as soon as the transfer occurred the mother would state that she did not agree to the crediting of the child support liability. However, he was adamant that there was no evidence that the mother did not hold the same intention that he held.
At hearing the father confirmed that he authored the 15 December 2022 SMS to the mother in evidence and that he received no response from her regarding his proposal. The Tribunal then put to the father what, if anything, he understood when the mother did not respond to this email. He responded:
Well, the Court also said around that time, you know, that she needed to put in another application… And in 2022, my solicitor was dead against me giving [the mother] money out of super for child support, she was more than 100% against it. I'm even, I'm even going to say, like, you know, this is profiling people, but she was, my solicitor was, was, was fuming. I was going to call her a [specified name], but you know she's, you know, she's a very nice lady and but she's quite full-on and she was filthy that I even wanted to do that because she knew that I would be going down this road. But for me, I thought I had all my i’s dotted. But you know, then there's things come up like this mutual consent where, you know, you
can actually received something and then say it's not mine. I didn't get it. That's not what that was for, you know...
The father testified that the documentation between February 2021 and March 2023 demonstrates that part of the superannuation transfer for was child support and both parents agreed that this should be so. When invited to point out that evidence the father referred to the mother’s affidavit dated 5 January 2023.46 When asked to be more specific, the father responded “but where does it say that she doesn’t agree with the 2021 orders that she doesn’t accept that it’s for child maintenance?”. He went on to state that he could not provide any evidence of an agreement between the two “otherwise we would not be in Court”.
He was always under the impression that they returned to Court in 2023 to rubber stamp the 2021 orders. The father testified that he did not raise spousal maintenance at the 2023 hearing because they were only at Court to rectify the superannuation order. He understood that the 100% of the superannuation transferred was for splitting as per the property orders, spousal maintenance and the remainder was to be applied to his child support liability. He confirmed that he understood discharging the previous orders, including the 2021 orders, meant that the previous orders ended and the 2023 order would replace them.
It was put to the father why, if there was such an agreement, did the notation in the 2023 orders not explicitly state the same. The father testified that in respect of the 2023 hearing the Judge could not add:
… a notation of any kind on there because of what happened to the last orders. So that there was no fuzziness in there. I mean, the last orders, you know, it was all broken down into money’s going here, here and here and super wouldn’t comply with it. So for me, you know, I can’t speak for him, but I’m assuming that he didn’t put the notation is so that there was no blurred lines. We’d, we’d both agreed to what needed to happen. And so, he’s made the order.
However, as soon as he read the 2023 orders, he contacted the mother’s solicitor by email dated 15 March 2023 requesting that something be sent to him to indicate the agreement as to the splitting of the superannuation fund. He confirmed that he did not get a response from the mother’s solicitor and had a “gut feeling” that the mother would not agree to having part of the superannuation payment credited his child support liability.
46 TB3.
Later, when he lodged the necessary transfer documentation with the superannuation fund the father recalled thinking that the mother was not going to agree, but he thought he had enough evidence to have part of the transfer credited: “Well, 100%, I thought she wasn’t going to agree. My solicitor told me in 2022 that it would happen, but I thought I had enough evidence to be able to”. Later in the hearing he stated that his suspicions only arose when he lodged the non-Agency application with Child Support.
The Respondent’s submissions
The Respondent relied on its written submissions dated 3 February 2025 in addition to the GAP referral application filed on 11 December 2014 and oral submissions made at hearing. In short, the Respondent contends that the evidence before the Tribunal is sufficient to support a finding that there was a mutual intention to credit part of the superannuation payment to the father’s outstanding child support liability. Further, at first review the Tribunal was in error in not examining the intention of the parties at the time of payment.47
I had the benefit of the post-hearing submissions in relation to the 2023 transcript. It is sufficient to note that each parent states that the transcript supports their contentions regarding their intention. The Respondent’s position is that the parties’ mutual intention as at 15 March 2023 was that part of the father’s superannuation funds were to satisfy his child support arrears and there is no evidence post this hearing and preceding 8 May 2023 that would suggest that the mutual intention had changed.48
What date was the payment received by the mother?
On 8 May 2023 [Superannuation 1] transferred $61,777.53 from the father’s superannuation account to the mother’s superannuation account.49 On the same day the funds were deposited into a Personal Plan account in the mother’s name by [Superannuation 1] and invested in a balanced option.50 After a payment instruction form was received by
47 Respondent’s written submissions at [17]; referring to [40] of the first review decision.
48 Respondent’s written submissions in response to direction dated 15 July 2025 at [12] to [13].
49 TB1, folio 35 and TB12, folio 478.
50 TB3, folio 288
[Superannuation 1] in March 2024 the transfer to a superannuation account nominated by the mother was completed on 28 March 2024.51
I find that the relevant date as to the whether there was an intention that part of the superannuation funds were to be applied to child support is 8 May 2023, being the date that the funds were placed into an account in the mother’s name.
Did the mother hold the requisite intention on 8 May 2023?
It is apparent that despite the 2015 orders the father took no steps to comply with its terms and, in particular, to transfer part of his superannuation interest to the mother. Certainly, there is no evidence before me to indicate the contrary.
It is not in dispute, and I so find, that the 2015 and 2020 orders evidence no joint intention between the parties as to part of the superannuation payment being credited to the father’s child support liability.
In or around March 2022 the mother instigated enforcement proceedings in relation to the 2015 orders. The 2021 submissions made by the mother prior to the enforcement proceedings do not evidence any intention by the mother to have part of the superannuation payment from the father’s superannuation account credited to the father’s child support liability.
The mother and the father’s recollection of the 2021 enforcement proceeding are at odds and support their respective positions. I did not have the benefit of the transcript of that proceeding and the terms of 2021 order do not reflect a mutual intention between the parents.
It is apparent that these orders were not made by consent. However, I accept that it does not necessarily follow that the mother did not consent at hearing to Order 2 in respect of the crediting of the father’s child support liability. In such circumstances, I cannot be positively satisfied that the 2021 orders indicate that the mother’s intent aligned with the
51 TB2, folio 242.
that of the father. In any event, the terms of the 2021 order are unequivocal; part of the superannuation payment was to be applied to the father’s child support liability.
It is clear from the 2022 correspondence authored by the mother that she acknowledged the fact that the 2021 orders intended that part of the superannuation payment was in part satisfaction of the child support debt. She went on to suggest that a notation to give effect to the 2021 orders could be included in any amended orders.
I am persuaded that 2022 correspondence reflects the mother’s intention to consent to orders that would preserve the effect of the 2021 orders including, importantly, that part of the superannuation payment was to be applied to the father’s child support debt.
I conclude that on 28 February 2022 the parents held a joint intention that upon the transfer of the father’s superannuation to the mother, part of this payment would offset his child support liability.
However, the documentation from 30 May 2022 suggests that there was a change to the mother’s intention on or before 30 May 2022. This is the date she asked that the matter return to Court on the basis that the father was not engaging in any discussions to amend the orders.52 Later that day the father indicated that he would not consent to the proposed orders because they do not reflect the 2021 orders in relation to the child support liability. I infer from this that the orders proposed by the mother did not contain a notation in the terms proposed by the mother on 28 February 2022.
The matter did return to Court and on 13 December 2022 and the Judge stayed the operation of the 2021 orders and, ordered that absent any other application being made within 28 days, the 2021 orders would be discharged.53 The father’s 13 March 2022 affidavit gives context to the stay order. He declared that the Court had advised that the 2021 orders could not be complied with and so “consent orders” were required to give effect to the 2015 orders and part payment of his child support arrears from his superannuation.54 At hearing the father confirmed that during the December 2022
52 TB11g, folio 388.
53 TB2, folio 244.
54 TB3, folio 304.
proceedings the Court had advised him that the mother’s consent was required to replicate Order 2 of the 2021 orders.
His testimony on this point is consistent with the SMS he sent to the mother indicating that, after speaking to Child Support, the terms of the 2021 order could be “used as long as we both agree to it” suggesting that his lawyer draw up an agreement and he was “happy to sort it all out now if you are”.55
This SMS supports the inference that the father was aware that the mother’s intentions may have changed. Had he not been aware, it is difficult to understand why he would seek written confirmation from the mother that part of the superannuation transfer was to be in lieu of child support and suggest that his solicitor draft terms on this basis.
I conclude that both the mother and father’s conduct from at least 13 December 2022 support a finding that the father was on notice that the mother may not agree to replicating Order 2 of the 2021 orders. I base this conclusion on the terms of the stay order, the SMS and the father’s 13 March 2023 affidavit that from at least 13 December 2022 the father was aware that the mother was seeking to discharge the 2021 and that in order for Order 2 of the 2021 orders to be replicated he required confirmation from the mother that she still held the requisite intention prior to or upon the discharge of the 2021 orders.
In fact, his testimony is that his lawyer had strenuously advised him not to consent to amending the 2021 orders in the terms sought by the mother as there was a real risk that the mother’s intention did not mirror his own and so his child support liability would not be credited. The father did not refute the mother’s assertion that his lawyer ceased acting for him on 20 February 2023.56 I am satisfied that the father was aware of the consequences should an agreement not be formalised between he and the mother after the 2021 orders were discharged.
It is uncontroversial that the mother’s 2023 affidavit made no reference by notation or otherwise that the mother intended that part of the superannuation payment be in lieu of
55 TB11a, folio 364.
56 TBc11, folio 371.
child support.57 The same can be said about the correspondence between the father and the mother’s solicitor on 13 March 2023. No statements made by the mother’s solicitor suggest that the mother held the requisite intention.
I have considered the 2023 orders and the transcript of that hearing. The 2023 order and transcript clearly note that the Court had no jurisdiction to make orders as to the attribution of those funds into various categories as the father sought. The father’s correspondence dated 13 March 202358 and statements at the hearing indicate that the father understood this. Further, there can be no doubt about the father’s intention. That much is uncontroversial.
However, consistent with his SMS59 and 13 March 2023 email60 and statements at hearing the father was aware that he required evidence of an agreement with the mother to indicate the portioning of the superannuation funds to provide to Child Support to deal with part of his arrears, by way of notation or otherwise.
The 2021 order requiring the crediting of part of the superannuation were discharged on 15 March 2023. This meant that the 2021 orders no longer had any further legal effect.
The Respondent’s submission at the hearing was that in the absence of a transcript, the intention of the parties from the 15 March 2023 orders is difficult to discern. There is merit to this argument. In fact, without the benefit of the transcript it was persuasive. However, the transcript was illuminating.
After having the benefit of the transcript the Respondent states that in declining to make a notation about the superannuation splitting order covering anything other than child support, the Judge understood that the parties were agreed on any superannuation order covering child support.61 This, together with the mother’s correspondence to the Court on
57 TB3, folios 265 to 269.
58 TB2, folio 238.
59 TB11a, folio 364
60 TB10a, folio 358
61 Respondent’s written submissions in response to direction dated 15 July 2025, [6].
28 February 2022, leads to the conclusion that the splitting order includes part payment of the child support arrears.62
I am not persuaded that the transcript or 2023 order provide insight into the Judge’s understanding as to the mother’s intentions. Had the Judge been so assured of the mother’s intention, there would have been no barrier to a notation to that effect being made in explicit terms, referring to both the mother and father and not the father alone. In any event, the legal test is in respect to both parents’ intentions and so the Judge’s understanding is not relevant.
Further, I am not persuaded that the notation to the 2023 order assists the father’s case.
It is not in issue that a notation attached to orders are not enforceable by the courts as they do not carry the same status as an order and so have no operative effect. Nevertheless, notations are a statement of the then wishes and intentions of the parties and is an aid, if required, to properly interpret the orders pronounced: PAJ & GMJ.63
However, in this case there is no debate about the interpretation of the orders. Neither parent dispute the 2023 order or the interpretation of those orders. Instead, the father relies on the notation to indicate an intention held by the mother as at the date of hearing.
The Respondent states that the word ‘beyond’ in the notation assumes significance; it indicates that the father sought that the order cover matters in addition to child support and so it reflects that both parents agreed to have part of the superannuation payment credited to his child support liability. I do not accept, as the Respondent contends, that the 2023 notation in referencing ‘matters beyond child support’ assumes that the parents were in agreement that part of the transfer of funds already addressed the child support debt.64
Even if this was the Judge’s understanding, the transcript clearly states that in response to the question put about “any ongoing agreement in relation to child support payments”
62 TB1, folios 33 to 34.
63 [2003] FamCA 751 at 43
64 Respondent’s written submissions in response to direction dated 15 July 2025, [6].
the mother’s solicitor clearly answered in the negative,65 though later confirmed that any agreement about attribution of the superannuation funds could be reflected by a notation.66
It specifically refers to the father’s intention, albeit for matters ‘beyond’ child support. At hearing the Judge raised the possibility of a notation to give effect to the 2021 orders. Importantly he noted that “[T]he court may be able to – imply make a notation that, from the father’s perspective, that is meant to cover matters wider than child support” (emphasis added).67 The Judge made this statement prior to the father making any reference to the 2015 orders in respect to spousal maintenance and the property settlement.68 It was only after the Judge had stated that he would make a notation to the effect that the father seeks that the splitting order covers matter ‘beyond’ child support did the father raise the issue of spousal maintenance. I am not satisfied that the terms ‘wider’ or ‘beyond’ are sufficient to indicate that the mother held the requisite intention.
I prefer the interpretation that the notation was to give effect to the father’s intention, and the father’s only, that part of the superannuation payment is in lieu of child support. To find in the alternative would require me to give no weight to the fact that the mother’s solicitor explicitly advised the Court that there was no agreement as to child support in place.69 The solicitor was acting on the email instructions from the mother dated 13 March 2023.70
The father clearly was cognisant of the fact that he required a notation or the terms of the order to reflect the parents’ intention regarding child support: “… Because if I don’t – if I don’t have something in there like that, as soon as we leave this court session, that 100 per cent super will go to [the mother]. Obviously, which is agreed on. But then what that order actually is, I suppose, supposed to serve. Then it’s just kind of throwing up the cards. And, you know, you’re kind of in another argument where she says, “Well, no, this is all in hindsight.” And if she says, “Well, no, I don’t agree that that was paying that. I don’t agree that that was paying that. And I don’t agree that the rest was for child support”, then where
65 Transcript, P-2 at 40-45.
66 Transcript, P-3 at 5-15.
67 Transcript, P-3 at 40-45.
68 Transcript, P-4 at 15-20.
69 Transcript, P-3 at 40-45.
70 TB2, folio 238.
does that leave me?.”71 In response, the Judge stated that by discharging the 2015, 2020 and 2021 orders made each of the matters raised by the father “go away”.72
The Judge reference that the father’s concerns “go away” is curious. Certainly, it is not entirely clear what he was trying to convey. It may be that it references the notation being sufficient to allay the father’s concern about the crediting. Another interpretation is that the discharging of the orders means that any reference to the crediting of the child support liability will have no legal force. Having regard to the facts already determined and the transcript in its entirety I find it is the latter.
Upon the discharging of the 2021 orders there was no longer an order directing that the payment of part of the superannuation should be applied to the child support arrears.
Prior to the discharge and immediately following the discharge the father sought from the mother (communicating to her solicitor) an assurance regarding her intentions to provide to Child Support. That was not forthcoming.
I am satisfied that the mother’s silence was sufficient to alert the father that her intention had changed, remembering it was she who had sought the father’s consent to amend the 2021 orders with a notation mirroring Order 2 on 28 February 2022. Certainly, I am not persuaded that her silence should be construed as consent. The mother’s lack of response cannot be converted into an agreement; silence is not a form of acceptance in negotiations of this nature. The evidence suggests that the father did not interpret her silence as consent from 13 December 2022; he continued to seek confirmation from her. It is likely that it was for this very same reason that he was seeking reassurance from the Judge , being that he could provide this to Child Support.
I have reached the requisite level of satisfaction that on 15 March 2023 the father was cognisant that the mother no longer held the intention that part of the transfer of the father’s superannuation to her was paid in partial satisfaction of the father’s enforceable maintenance liability. Her representative stated the same at the 15 March 2023 hearing. On this point my findings align with the Tribunal at first review.
71 Transcript, P-4 at 20-30.
72 Transcript, P-4 at 35.
I am not satisfied that the mother held an intention that the father’s child support liability be credited by part of the superannuation transfer as at 8 May 2023, being the date of transfer of the superannuation funds.
On the basis that on the date the mother received the transfer of funds from the father’s superannuation account she did not intend those funds (as is required by section 71 of the Act) to be paid in partial satisfaction of the father’s child support liability it therefore cannot be credited as a non-Agency payment towards the father’s child support liability.
It follows that the decision under review is set aside and substituted with a decision that the payment of $36,777.53 on 8 May 2023 from the father to the mother was not intended by the mother to be paid in partial satisfaction of an amount payble under the father’s child support liability.
Therefore, this amount must not be credited against the father’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 payment of $36,777.53 must not be credited against the other’s party’s child support liability pursuant to section 71 of the Child Support (Registration & Collection) Act 1988.
Date(s)of hearing: 24 March 2025 Applicant:
Self-represented
CounselfortheRespondent:
Mr B Kaplan
SolicitorsfortheRespondent:
Ms B Rayment, Sparke Helmore Lawyers
OtherParty:
Self-represented
I certify that the preceding 118 paragraphs are a true copy of the written reasons for the decision of Deputy President Dordevic
......................[SGD]...........................
Associate
Dated: 11 September 2025
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