Kemp and Dorsey (Child support)

[2019] AATA 2535

Kemp and Dorsey (Child support) [2019] AATA 2535 (8 July 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC016343

APPLICANT:  Mr Kemp

OTHER PARTIES:  Child Support Registrar

Ms Dorsey

TRIBUNAL:Member M Kennedy

DECISION DATE:  8 July 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – non-agency payment - whether cash payments made directly by payer to payee – payee denies receiving cash payments - decision under review affirmed

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.

REASONS FOR DECISION

1. Mr Kemp and Ms Dorsey are the parents of [Child 1], in respect of whom a child support case commenced on 1 September 2015 and remains in effect.

2. Mr Kemp has asked that an amount of $6400 be credited against his child support liability, representing cash payments and grocery payments made to Ms Dorsey.  I have clarified with Mr Kemp that his case is that these payments were made after the child support case started, but before the Registrar commenced deductions from his bank account at some point in 2017.

3. Ms Dorsey denies any funds or support was received at any relevant time.

4. The Registrar refused to credit the ‘non-agency payment’ on 27 September 2017.  Mr Kemp objected a little over a year later.  An extension of time was granted for Mr Kemp to object.  The objection was disallowed on 30 March 2019.

5. Mr Kemp applied to the Tribunal for review on 16 April 2019.

CONSIDERATION

1. Direct payments to a payee may be credited towards a child support liability subject to two important criteria being satisfied (among others). This is provided for by section 71 of the Child Support (Registration and Collection) Act 1988.

2. Relevantly, I must be satisfied that

   ·Ms Dorsey ‘received’ and amount; and

   ·The amount was intended by both Mr Kemp and Ms Dorsey to be in complete or partial satisfaction of an amount payable under the child support liability.

3. Mr Kemp has given sworn evidence that he made cash payments of $100 each week and purchased $200 of groceries each fortnight.  By my calculations therefore, Mr Kemp’s application to have $6400 credited towards the liability relates to 32 weeks, although Mr Kemp has been unable to be more specific as to the dates these payments were made.  I am not entirely sure whether Mr Kemp refers to payments made while there is an ‘enforceable maintenance liability’ in place or for previous times, although ultimately my understanding is that Mr Kemp’s application relates to unspecified periods after 1 September 2015.

4. Mr Kemp has provided no corroborating documentary evidence in relation to making the payments, other than some records demonstrating he met some swimming fees in 2015, and an affidavit for Federal Circuit Court proceedings sworn on 9 July 2017 in which Mr Kemp made a statement that he had made payments of $100 a week in cash and provided money for groceries.

5. Mr Kemp says that Ms Dorsey refused to give him a bank account number to transfer funds, and there is otherwise no evidence of agreement as to the purpose of any funds provided by him.

6. Ms Dorsey’s evidence may be summarised as a categorical denial that any support was received from Mr Kemp other than funds distributed to her via the Registrar.

7. Both Mr Kemp and Ms Duffie accuse the other parent of lying about this matter.

8. Disputes of this nature are to be resolved by reference to evidence.  I have no cogent basis to prefer one parent’s oral evidence over the other. Mr Kemp has not provided any cogent corroborative documentary evidence to support his contention.  It will inevitably be difficult to do so if (for example) a parent chooses to hand cash to another parent, as cash payments are often undertaken to ensure there is no evidence of the payments being made.

9. Ultimately, this is Mr Kemp’s application.  I must be reasonably satisfied that the payments have been made, and that they were intended to be towards the child support liability.  On the evidence before me, I am not satisfied of either proposition.

10. The criteria for crediting a non-agency payment are not satisfied.  The decision to refuse to credit the amount requested by Mr Kemp is correct.

DECISION

The decision under review is affirmed.