Kenyon and Ayres (Child support) - [2024] ARTA 434

Kenyon and Ayres (Child support) [2024] ARTA 434 (23 October 2024)

Applicant/s: Ms Kenyon

Respondent: Child Support Registrar

Other Parties: Mr Ayres

Tribunal Number: 2024/SC028002
Tribunal: Senior Member S Trotter
Place:Brisbane
Date:23 October 2024

Decision:The decision under review is varied such that the amount of $36,777.53 is credited as a non agency payment in relation to Mr Ayres’ child support liability.

CATCHWORDS

CHILD SUPPORT – non-agency payment – property settlement court order – superannuation fund released against child support liability – mutual intention – request for amended court orders – decision under review varied

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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.

Statement of Reasons

BACKGROUND

As relevant to this application, Ms Kenyon and Mr Ayres are the parents of two children (born 2009 and 2010) in relation to whom there has been a child support case registered with what is commonly referred to as the Child Support Agency (Child Support) since 6 December 2013.
This review application concerns a single decision of Child Support to credit a payment made by Mr Ayres as a non agency payment in relation to his child support liability.
On 23 August 2023, Mr Ayres contacted Child Support advising that pursuant to a property settlement court order, Ms Kenyon was to receive some of his superannuation monies however the superannuation fund would not release the monies. Ms Kenyon then obtained a further court order and the superannuation fund released all of his superannuation of $61,777.53 on the understanding that the excess $36,775.53 would be for child support and Mr Ayres applied to have that amount accepted as a non agency payment towards his child support liability.
On 27 September 2023, Child Support decided to accept Mr Ayres’ application and to credit $36,775.53 as a non agency payment against his child support liability.
On 6 October 2023, Ms Kenyon objected to Child Support’s decision on the basis that she had never agreed to have money transferred from Mr Ayres’ superannuation in lieu of child support.
On 30 April 2024, Child Support disallowed the objection, referencing a court order that provided for any ‘remaining monies in the Husband’s superannuation fund be released and paid in satisfaction of any outstanding child support debt’.
On 18 May 2022, Ms Kenyon lodged an application with the AAT seeking independent review of Child Support’s decision, including as follows:
The facts are set out as follows: There was no payment for child support made. The orders CSA relied upon to make the decision were dated on or around Feb 8 2021 and were never agreed to or operated by either party. These orders are discharged. Letter from Superannuation fund confirms Orders dated March 2023 were complied with and super transferred in April 2023. Copies of the orders dated March 2023 were sent via registered mail with the tracking number given to CSA. [Mr Ayres] has a copy of these orders. There was no mutual intent that payment was made in lieu of child support. I have not spoken to [Mr Ayres] in over 10 years and only communicate in writing. I have never agreed to have Superannuation used in lieu of child support payment and made that fact very clear, in writing, to [Mr Ayres]. CSA have been informed on several occasions that I do not agree to using superannuation in lieu of child support. This included phone correspondence requesting CSA make a note on my file that I do not, and will not ever agree to child support being paid from superannuation. I can supply CSA records as evidence to confirm this. The payment was not made in respect of an enforceable maintenance liability: [Mr Ayres] agreed to my proposal (sent via solicitor) which excluded child support from superannuation split. Orders dated March 2023 clearly state that child support matters were not included and [Mr Ayres] agreed to my proposal. Letter from solicitor further confirms [Mr Ayres’s] child support debt remains. According to CSA objection documents, [Mr Ayres] is now falsely accusing and projecting his change of mind onto me. [Mr Ayres] falsified information to deliberately mislead CSA.
Ms Kenyon and Mr Ayres both participated by telephone in a hearing before me on 15 August 2024 and gave sworn oral evidence. The Child Support Registrar did not seek leave to participate in the hearing. The application was deferred following the hearing in order to allow Mr Ayres an opportunity to respond to documents provided by Ms Kenyon. Mr Ayres’ response was then copied to Ms Kenyon for further comment or response, following which I made my decision.
I took into account the oral evidence of Ms Kenyon and Mr Ayres and the documentary material (marked Exhibit 1, pages 1 to 253) provided by Child Support to the AAT and the parties and documents provided by Ms Kenyon (marked Exhibit A, pages 1 to 26) and Mr Ayres (marked Exhibit B, pages 1 to 45). Numbered copies of all documents provided were exchanged with the parties, with the final submissions of Ms Kenyon (Exhibit A, pages 18 to 26) copied to Mr Ayres with these Reasons.
From 14 October 2024, the Administrative Appeals Tribunal (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.

ISSUES

The statutory provisions relevant to this review are found in the Child Support (Registration and Collection) Act 1988 (the Act).
Where a parent has applied to Child Support for an assessment of child support, they may also apply to have that liability entered into by the Registrar and be collected on their behalf from the liable parent by Child Support. Once this occurs, the liability is then “enforceable” by Child Support against the liable parent and, pursuant to section 30 of the Act, the liability becomes a debt due to the Commonwealth owed by the liable parent.
Crediting of payments against the child support liability is in accordance with sections 71 to 71C of the Act.
Section 71 of the Act relates to payments made directly from the payer to the payee. Section 71A of the Act then relates to payments made to a third party. Both sections apply only if both the payer and payee agree that any such payments were in lieu of child support.
Section 71C of the Act provides for payments of the kind prescribed by regulation to be credited against the amount payable under the enforceable liability for a payment period, up to a maximum of 30% of the amount payable. Unlike sections 71 and 71A, section 71C does not require that the payment be intended to satisfy an amount payable under the liability.
It is not contended in relation to this matter that the payment in question is a prescribed payment in relation to section 71C of the Act.
The issue which arises in this case is:
· whether the payment of $36,775.53 paid from Mr Ayres’ superannuation to Ms Kenyon was agreed to be a payment in lieu of child support.

CONSIDERATION

Mr Ayres’ position is that a court order provided for the excess of his superannuation above $25,000 released to Ms Kenyon to be in lieu of child support with $61,777.53 paid to Ms Kenyon from his superannuation, meaning that $36,775.53 was to be credited in lieu of child support. Mr Ayres said that provision was made to this extent in a court order dated [in] February 2021 (Exhibit 1, pages 37 to 40 of the hearing papers) in Court Orders as follows:
ON A FINAL BASIS THE COURT ORDERS THAT:
1.In accordance with section 90XT(1)(a) of the Family Law Act 1975, where 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 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 bankruptcy requirements, be determined as between the child support agency and Husband and calculated in affordable increasements so as to discharge the child support debt.
Mr Ayres submitted that if the superannuation payment, less $25,000, is not allowed as a non agency payment, he would have to return to court to have the $36,000 returned to him.
Child Support accepted Mr Ayres’ submission, concluding that where a Court Order makes provision regarding funds to address a child support debt, the payment must be credited.
Ms Kenyon’s oral and written submission in response included as follows:
(a)    In 2020, Mr Ayres’ outstanding child support debt was around $65,000 and Child Support had exhausted all avenues for collection;
(b)    Property matters were already before the court and child support matters were added to the matters before the court. There was never any intent or agreement for the outstanding child support to be paid from superannuation. She did not agree for child support to be taken out of superannuation including because she cannot access the superannuation to support the children now and if she did access it, she would be taxed and penalised for early access.
(c)    The orders dated [in] February 2021 were not agreed to by her. She was unrepresented from February 2021 to November 2022 in the court proceedings. She wrote to the court on 28 February 2022 (Exhibit 1, pages 32 to 33) asking that the [February] 2021 court orders be amended under the ‘slip rule’ in accordance with rule 16.05(3) of the Federal Court Rules 2001 (Cth). Her email stated as follows (unedited):
Dear Registrar and Associate,
I am the Applicant in these proceedings. I am writing to you seeking for the Federal Circuit Court Orders dated [in] 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.a copy of the current orders; and
2.a copy of the proposed amended orders I note the respondent has not replied to me and I have cc’d them into this email.
3.Letter from [Fund 1] rejecting the current orders …
4.mail from [Fund 1] approving the amended orders …
The current orders (order 1) provides I will receive a $25,000 super split from the Respondent from his interest in [Fund 1]. However, I have been told by [Fund 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 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.
(d)    The Minutes of Orders Sought by her (Exhibit 1, pages 30 to 31) were in essentially the same terms as the subsequent orders made [in] March 2023 and were as follows:
1. In accordance with section 90XT(1)(a) 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 [Mr Ayres] (Member Number: …) from his interest in [Fund 1], [Ms Kenyon] is entitled to be paid by the Trustee of [Fund 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 [Mr Ayres] 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 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.
(e)    The [March] 2023 Orders revoked previous orders including the [February] 2021 orders and included as follows (Exhibit 1, pages 69 to 70):
1. In accordance with section 90XT(1)(a) 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 [Mr Ayres] (Member Number: …) from his interest in [Fund 1], [Ms Kenyon] is entitled to be paid by the Trustee of [Fund 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 [Mr Ayres] 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 [in] July 2015, [October] 2020 and [in] 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
B.     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.
(f)     Although the $61,777.53 was transferred from Mr Ayres’ superannuation fund on 8 May 2023, the monies were not deposited to her superannuation fund until April 2024.[1]
[1] I note that the documentary evidence provided supports this submission of Ms Kenyon with a delay in transfer of the monies from the superannuation fund for reasons not relevant to this application.
In addition to the [February] 2021 and [March] 2023 court orders, Ms Kenyon also referred to a court order dated [in] December 2022. Although mainly dealing with care issues not relevant to this application, I note that the [December] 2022 court order also includes the following orders:
UNTIL FURTHER ORDER, THE COURT ORDERS THAT:
1.Orders 1, 2 and 3 of the Orders dated [in] February 2021 be stayed.
2.Absent any other Application being made within 28 days, being by [a day in] January 2023, Orders 1, 2 and 3 of the Orders dated [in] February 2021 will be discharged.
At hearing, Mr Ayres submitted that Ms Kenyon’s 28 February 2022 email (see paragraph 21(c) of these Reasons) to the court actually suggests that there is an understanding on her part that part of the transfer of the superannuation monies would be in satisfaction of child support. In particular her email includes as follows:
My understanding is that orders were worded in 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.
Ms Kenyon said that she sent and said those words in error. She was unrepresented at the time. She was trying to get the previous order of [February] 2021 repealed. Ms Kenyon said that she can see how her email might be read to suggest the monies were in lieu of superannuation but that was never her understanding – the minutes of order that she submitted with the email do not refer to child support at all and that ended up being reflected in the [March] 2023 orders which discharged the previous orders. Ms Kenyon further submitted that it is very clear from correspondence between her solicitor (when she subsequently engaged a solicitor) and Mr Ayres that child support was not to be included. Ms Kenyon provided a copy of a letter from her solicitor to her dated 20 March 2023 (Exhibit 1, page 18) in that regard which states as follows:
We refer to completion of your matter in relation to your receiving, when it falls due, 100% of Mr Ayres’ super entitlement.
Mr Ayres 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.
I discussed with Ms Kenyon at hearing that the wording of the 28 February 2022 email, suggesting that the balance monies were to be for the child support debt of Mr Ayres, was very specific wording and that I was trying to understand how such specific wording could be in error and represent a misunderstanding on her part. Ms Kenyon said that she asked for a new hearing because through no fault of her own the previous orders had not been complied with. Spousal maintenance had not been made as required. She had missed out on interest because of the delay. Ms Kenyon referred to letters between her solicitor and Mr Ayres subsequently which confirmed that the monies weren’t to be for child support.
Ms Kenyon also raised at hearing that Child Support records (at Exhibit 1, page 64), where it is noted that Mr Ayres stated ‘understanding that [Ms Kenyon] will agree’, suggests that Mr Ayres stated he believed she would agree because she hadn’t agreed. As discussed with Ms Kenyon at hearing, I put no weight on the semantics of the tense of such wording in notes of Child Support in assisting my determination of whether there was mutual intention that the balance superannuation monies were for child support. Ms Kenyon also submitted that Mr Ayres’ delay in providing Child Support with the actual [March] 2023 court orders shows that Mr Ayres was ‘cherry picking’ what information he provided to Child Support. As discussed with Ms Kenyon at hearing, I place no weight on Mr Ayres’ actions or non‑actions in this regard.
I adjourned following the hearing to allow all documents provided by Ms Kenyon to be exchanged with Mr Ayres and for him to have an opportunity to comment on or respond to the documents.
Ms Kenyon provided written submissions after hearing which included excerpts of a number of emails between her and her solicitors. Like the 20 March 2023 letter from her solicitors to her, those emails do not assist me in ascertaining the intention of Ms Kenyon and Mr Ayres.
Ms Kenyon also excerpted an email from Mr Ayres to Ms Kenyon’s solicitors dated [in] March 2023 (Exhibit A, page 4) in her submissions as follows:
No problems, I think it’s best if I get something from yourself outlining what the 100% of super is for. I’ll need something to give to child support that reflects what’s been paid to [Ms Kenyon].
Obviously it’s all been agreed to in previous court orders and communications but it we have it in writing it’s going solve a lot of problems later if she decides to disagree. After my discussions with child support they’d do an investigation is 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 doing the same anyway but be good to know. Thanks!

Mr Ayres responded, providing the following documents:
(a)    Letter from [Fund 1] to Ms Kenyon dated 17 March 2021 (Exhibit B, page 22) including as follows:
·Please ensure that your Order states an Operative time. An example of a common operative time is “that Order 1 has effect from the operative time which is four business days after a sealed copy of these Orders has been served upon the Trustee”.
·The Trustee is unable to comply with a superannuation split the amount of which is dependent upon matters outside of its knowledge or control. Please review order C and provide a final base amount in whole dollars.
(b)    Affidavit of Ms Kenyon dated 5 January 2023 provided to the court seeking amendment of the [February] 2021 orders (Exhibit B, pages 4 to 8), including as follows:
9.[In] July 2015 parenting and property Orders were made [Judge name] (‘the Final Orders’) I was self-represented during these proceedings. Annexed marked “A” is a copy of those Orders.
10.In or around March 2022 I put the enforcement order back before the court. [Mr Ayres] has not complied with the orders made [in] February 2021 regarding property, his bankruptcy, and child support. Annexed and marked “B” is a copy of those Orders.
11.Pursuant to the Orders of [February] 2021 provision was made for an allocation of certain sums from [Mr Ayres] superannuation fund, [Fund 1], to partially pay for arrears of Child Maintenance.
12.I did not have legal representation from [February] 2021 until [November] 2022.
13.   I provided the Orders of [February] 2021 to the Trustee of [Fund 1] on the 2 March 202. The Trustee replied indicating that they were unable to comply with a superannuation split because the amount was dependent upon matters outside the Trustees knowledge or control. This related to the splitting order regarding payments for arrears of Child maintenance. Annexed and marked “C” is a letter of non-compliance from [Fund 1] dated 17 March 2021.
14.I provided draft orders to the trustee on the 14 September 2021. I struggled with the drafting of those Amended Orders as I continued to be unrepresented. Annexed and marked “D” is a copy of the amended draft orders forwarded to the trustee.
15.On the 23 November 2021 I received notice from [Fund 1] that they had no objection to the making of those Orders. Annexed and marked “E” is a copy of that correspondence from [Fund 1].
16.Subsequently, I endeavoured to reach an agreement by consent of the approved Draft orders, annexure “D”. [Mr Ayres] refused to agree. I have made 7 separate attempts to resolve these issues with [Mr Ayres] and his legal team. [Mr Ayres’s] legal team advised me in September 2021 that they do not hold instructions for him for property matters. [Mr Ayres] has been involved in the correspondence and via text messages.
17.The Court advised me that they could only make Orders which were by consent of both parties.
18.As of the 9 December 2022 [Mr Ayres’s] arrears for Child Maintenance were $66,786.79. Annexed and marked “F” is a 4 page document from the Child Support Agency, Melbourne dated 9 December 2022, noting the arrears at the bottom of page 2.
19.The matter was before the Court [in] December 2022 in relation to Parenting Orders, however, Orders were made in relation to the Property Orders of [February] 2021. Annexed and marked “G” is a copy of those Orders (unsealed) extracted from the Commonwealth Courts portal.
20.[Mr Ayres] was represented by Counsel and Solicitor at that time.
21.Order 2 of the Orders of [December] 2022 provides that if I have not made an application by the [day in] January 2023 then the Orders in relation to splitting superannuation and arrears of child maintenance will be discharged.
DELAYS
22.In April 2021 my mother passed away and as a result I was unable to adequately address the requirements necessary in the property proceedings.
23.I respectfully request the Court to make the Orders for Superannuation splitting as filed herein.
(c)    Affidavit of Mr Ayres dated 13 March 2023 (Exhibit B, pages 41 to 45), including as follows:
6. [In] July 2015 parenting and property orders were made [Judge name].
7.The 2015 splitting orders was not complied with or followed up by [Ms Kenyon] and therefore there are unpaid sums.
8.I filed for bankruptcy in around Feb 2021.
…
10.At the time of these proceedings (care proceedings), [Ms Kenyon] filed before the court, enforcement proceedings regarding the 2015 property orders.
11.During the enforcement proceedings I did not have legal representation. I provide all necessary documentation to the court and it was my intention to have it resolved.
12.[In] February 2021 Judge [named] ordered that any outstanding monies be paid from my superannuation fund to satisfy the 2015 splitting order and the child support debt.
13.During court proceedings for the children [in] 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 the 2015 splitting order and child support arrears, hence these proceedings.
14.Both parties were represented by Counsel and a Solicitor at this time.
15.[Ms Kenyon] was to apply to the court by [the day in] January 2023 to have splitting orders reviewed so the 2015 orders and child support arrears could be complied with.
…
23.I acknowledge that I am in arrears to Child Support. The arrears was not a result of my inconsistencies in paying, it was a result of filing three tax returns all at one time.
24.I request that the outstanding 2015 orders be finalised and the remainder of my superannuation be paid to child support in respect of arrears.
Further, Mr Ayres provided written submissions in response, received 16 September 2024, to the extent relevant stating as follows:
(a)[In February] 2021, an order was made that stipulated what the superannuation was to be used for - $25,000 to cover spousal maintenance, superannuation owed and the remaining amount to be paid in satisfaction of any outstanding child support debt. The total amount paid to [Ms Kenyon] was $61,777.53. $36,777.53 was the amount to be paid off child support.
(b)It was agreed by both parties in court that child support would be paid with the remainder of monies from superannuation. There was no dispute in this at the time and the orders were made by consent.
(c)(Ms Kenyon) now claims it was not for child support. I can assure you it was not a gift.
(d)In [Ms Kenyon’s] correspondence she says that does not agree and didn’t agree to child support being paid out of super. All of the evidence shows that she agreed, In her email to the court, in her application to the court and also her affidavit.
(e)Paragraphs 13 to 17 of Ms Kenyon’s affidavit to the court show that she is seeking the orders be made and the reasons why. There is no mention of child support not being part of it or that Ms Kenyon disagreed with that with previous orders. It was all about getting the orders changed to suit what [Fund 1] needed to execute the order.
(f)The emails in Ms Kenyon’s evidence, other than the one from him to her solicitor, are between Ms Kenyon and her solicitor, and after the fact. There weren’t any emails or agreements made between him and solicitors. The fact of the court hearing and why they were there is clear in Ms Kenyon’s affidavit and also his affidavit for the hearing.
(g)He agreed to release his remaining superannuation to cover his child support debt. The money was not a gift; it was to settle his child support debt.
Given Mr Ayres’ response, I considered it appropriate to provide his response to Ms Kenyon allowing her an opportunity to respond prior to finalising my decision.
Ms Kenyon responded on 30 September 2024 (Exhibit A, pages 18 to 26) and a copy of that response will be provided to Mr Ayres with these Reasons. Whilst of understandable importance to Ms Kenyon, many of the matters raised by her in her submissions are outside the scope of this application and not relevant to the determinative issues. I have confined the evidence and submissions addressed in these Reasons to only that relevant to the issues arising. A summary of Ms Kenyon relevant further submissions in response include as follows:
(a)In addition to February 2021 orders, orders dated [in] October 2020 that have now been discharged ordered Mr Ayres to pay spousal maintenance from his superannuation and Mr Ayres did not comply with either of these Orders.
(b)She never agreed to child support to be taken from superannuation in the enforcement hearing in February 2021. Her submissions and the transcript can confirm what was said in court.
(c)The court notation in March 2023 states word to the effect of ‘[Mr Ayres] agreed to the mother’s proposal’ resulting in 100% super going to her and none apportioned to child support.
(d)The only orders that are operational are the [March] 2023 orders. They exclude child support. Other orders have been discharged.
(e)Her solicitor wrote to Mr Ayres asking if he agreed and understood child support was not included and his reply was yes. He was sent a subsequent email asking if he understood what was meant and he replied.
(f)Orders of [March] 2023 clearly stated that Mr Ayres agreed to her proposal and child support was not included.
(g)Mr Ayres has capacity to pay in a way that is fair, accessible and equitable. That way is not through Super.
As can be seen, there is inconsistent evidence as to what was intended in relation to Mr Ayres’ excess superannuation monies.
On the one hand, the following evidence suggests that it was intended that Mr Ayres’ excess superannuation monies transferred to Ms Kenyon was to be directed towards discharging Mr Ayres’ child support debt/liability:
(a)Mr Ayres’ position is that it was always intended that the monies were in lieu of child support.
(b)The [February] 2021 orders specifically state at paragraph 2 that ‘Any remaining monies in the Husband’s superannuation fund be released and paid in satisfaction of any outstanding child support debt’.
(c)Ms Kenyon specifically states in her 28 February 2022 email that ‘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’.
On the other hand, the following evidence supports Ms Kenyon’s submission that the monies were not intended for child support:
(a)Ms Kenyon’s oral evidence that it was not intended that the balance superannuation monies were for child support;
(b)Paragraph 3 of the [March] 2023 orders provides that the previous orders of [July] 2015, [October] 2020 and [February] 2021 are discharged, suggesting, on Ms Kenyon’s submissions that that order therefore negates the [February] 2021 order and anything mentioned in the previous orders is no longer relevant.
Ms Kenyon submitted, including at paragraph 17 of her 30 September 2024 submissions (Exhibit A, page A24), that her solicitor wrote to Mr Ayres asking if he agreed and understood child support was not included and his reply was yes. He was sent a subsequent email asking if he understood what was meant and he replied. Mr Ayres’ position is that other than an email from him to Ms Kenyon’s solicitor [in] March 2023 (see paragraph 29 of these Reasons), there weren’t any emails between him and Ms Kenyon’s solicitors. Ms Kenyon has not provided copies of any such emails despite opportunity and absent such corroboratory supporting documentary evidence, I am unable to conclude that Mr Ayres confirmed with Ms Kenyon’s solicitor that child support was not included in the superannuation monies as contended by Ms Kenyon.
I do not accept Ms Kenyon’s evidence that in seeking to amend the orders of [February] 2021, she was trying to get them changed because she never agreed to superannuation being used for child support. Her 28 February 2022 email to the Judge’s associate is very clear, identifying that the orders need amending to specify an operative date and reference to the specific legislative provision as requested by [Fund 1] (in its letter of 17 March 2021). Furthermore, in very clear words Ms Kenyon goes on to acknowledge in her email that part of the superannuation was to be in satisfaction of a child support debt. I do not accept that there was any error by Ms Kenyon in this email, even though she was then unrepresented. The amendments to the orders sought clearly arose because of the superannuation fund’s requirements to be able to action the terms of the order.
I took into account the [March] 2023 email from Mr Ayres to Ms Kenyon’s solicitors, provided by Ms Kenyon after hearing (referred to in paragraph 29 of these Reasons). I find that Mr Ayres’ reference to needing something to give to child support is consistent with the balance superannuation monies being for child support. One would wonder otherwise why such a reference would be made. Notably, Ms Kenyon in her submissions excerpts a subsequent email from her to her solicitors dated [in] March 2023 (Exhibit A, page 5) instructing that no response be made to the email and stating that Mr Ayres ‘just doesn’t get it’. Further, as already canvassed despite providing the [March] 2023 email to the Tribunal, Ms Kenyon has not provided copies of any further emails between her solicitors and Mr Ayres to the Tribunal.
It seems clear that by [March] 2023, Ms Kenyon did not want the balance superannuation monies to offset Mr Ayres’ child support debt. However, that does not mean that there was not an earlier such intention. I am satisfied based on the [February] 2021 court order and Ms Kenyon’s 28 February 2022 email that there was such an earlier intention. I find there was mutual agreement of Ms Kenyon and Mr Ayres that the superannuation monies in excess of $25,000 transferred to Ms Kenyon were to be directed towards Mr Ayres’ outstanding child support debt. It may be, and seems apparent, that Ms Kenyon subsequently changed her mind, including possibly because of subsequent advice she may have received, or a realisation that she would not have immediate access to superannuation for the costs of the children. However, I am satisfied there was an original mutual intention for the monies to be for child support.
I therefore find that the balance superannuation monies transferred to Ms Kenyon after deducting $25,000 are to be credited towards Mr Ayres’ child support liability under section 71 of the Act. Child Support originally calculated that amount to be $36,775.53 and credited that amount; however, the actual calculation is $61,777.53 - $25,000 = $36,777.53 (as recognised by the objections officer in their decision – Exhibit 1, page 180) such that I will vary the decision under review to reflect the $2 difference in the calculation.

DECISION
The decision under review is varied such that the amount of $36,777.53 is credited as a non agency payment in relation to Mr Ayres’ child support liability.

Date(s) of hearing:	Thursday, 15 August 2024
Representative for the Applicant:	Not applicable
Representative for the Other party:	Not applicable