Skillern and Clower (Child support)

[2021] AATA 3699

Skillern and Clower (Child support) [2021] AATA 3699 (11 August 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2021/BC021763; 2021/021752

APPLICANT:  Mr Skillern

OTHER PARTIES:  Child Support Registrar

Ms Clower

TRIBUNAL:Member S Letch

DECISION DATE:  11 August 2021

DECISIONS:

The decisions under review are affirmed.

CATCHWORDS

CHILD SUPPORT – non-agency payment - whether payment made to a third party in lieu of child support - intention of both parents - decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

1. This matter concerns two objection decisions:

   (a) a decision dated 20 May 2021 which disallowed Mr Skillern’s objection to an original decision dated 25 September 2019 which refused to accept his application to credit a “non-agency payment” (NAP) in the sum of $10,000 (Tribunal reference 2021/SC021752);

   (b) a decision dated 20 May 2021 which disallowed Mr Skillern’s objection to an original decision dated 25 September 2019 which refused to accept his application to credit a “non-agency payment” (NAP) in the sum of $15,000 (Tribunal reference 2021/SC021763).

2. On 17 June 2021, Mr Skillern sought further review of both decisions by the Tribunal. Both parties participated in the Tribunal’s hearing by conference telephone.

3. Mr Skillern’s position during the hearing was consistent with his written application to the Tribunal:

   There are two decisions involved in this matter with the Child Support Agency as follows.

   I was ordered by the Family Court to make two payments for Child Support via my ex-wife's lawyers trust account. I caused my lawyer to make two separate payments. One for $10000.00 and another for $15000.00. There is no doubt that the Court intended for these payments to be for child support however Ms Clower objected to CSA and claimed it was not for child support. I had my lawyers write to the agency setting out clearly the reasons why the Court intended the two payments to be for child support. I say these payments totalling $25000.00 should be credited to the outstanding balance of my child support account and the Child Support Agency has made an error in their decision.

   The Court orders which were made concerning these payments are plain and my lawyer provided the orders to the agency.

4. Contrary to Mr Skillern’s position, Ms Clower’s position is well set out in her email to the Tribunal of 30 June 2021:

   I refer to the above cases for review.

   There are two relevant documents attached to the forwarded email.

   JLC 1 is a copy of a document uploaded to the CSA on the 25th September, 2019.

   Note that court orders were uploaded to the CSA.

   JLC 2 is a true copy of Orders and reasons delivered [August] 2019.

   I refer specifically to the Reasons for Judgment.

   The entire document is relevant to the review.

   Paragraph 1 - It is clear that this hearing was not about only child support. It was about “…. The extent to which the husband had contravened various financial orders made for him to make payments to Ms Clower  (“ the wife”) of child support, spouse maintenance, lump sum arrears of ordered payments and costs ordered.”

   At paragraph 4 [the Judge] refers to the fact that at 31 July 2017,” the husband’s contraventions of financial orders, including for child support involved amounts totalling, at that time, in excess of $250 000 plus interest. With indemnity costs of about $90 000, the husband’s accrued liability was in excess of $300 000 plus….”

   At paragraph 9, [the Judge] refer to the fact that although the husband was given 2 years to remedy his various contraventions of orders, he did not do so. The total had now ballooned to about $520 000.

   At paragraph 10, [the Judge] refers to the fact that $91 664 in costs has still not been paid.

   At paragraph 15 it is clear that the husband accepted that $521 151.90 was owing at that time and that he was well aware that not all of this was child support. He made an offer to pay $25000 within 7 days of the orders and the $6000 per month “until such time that the sum of $521 151.90 has been paid to the wife”.

   It is abundantly clear that Mr. Skillern was well aware of his obligation to satisfy all unpaid costs and not just child support.

   [The Judge] does not refer to payments under review as child support. These payments were to go some way towards Mr Skillern paying his global debt to me.

   It is not up to Mr. Skillern to decide which court order he will satisfy and which debt should be given priority.

5. Section 71 of the Child Support (Registration and Collection) Act 1988 (“the Act”) contains a number of requirements. If the requirements are satisfied in respect of a particular payment, then, subject to section 71D of the Act, the payment must be credited. In respect of the payments made by Mr Skillern, the only requirement in dispute is a requirement that both parents intended the payment, or part of the payment, to be credited against Mr Skillern’s child support liability.

6. Mr Skillern’s evidence is that he intended the payments that are the subject of this review to be credited against his child support liability. Ms Clower’s position is that she held no such intention.

7. An examination of the reasons for judgment of the Family Court of Australia of [August] 2019 reveals that the initial total payment of $25,000, plus ongoing payments of $6,000 per month, were attributable to the global sum of $521,151.90 (which included interest and indemnity costs of about $90,000). The Court did not specify a hierarchy or priority for attribution of the payments to be made by Mr Skillern. One can only speculate upon whether the Court intended any sum was intended to be attributed to child support. The Tribunal observes that the Court was critical of Mr Skillern’s contemptuous conduct.

8. Ultimately, what the Court may, or may not, have intended is not relevant to the limited question presently before the Tribunal. Given the way the orders were framed, those orders do not lead the Tribunal to conclude that Ms Clower was given an understanding by the Court that the sums to be paid were to be attributed to reducing Mr Skillern’s enforceable child support liability.

9. Ultimately, the matter turns on whether Ms Clower intended the sums paid by Mr Skillern to be credited towards his enforceable child support liability. It does not involve a broader question of fairness; it does not even require Ms Clower’s intentions to be regarded as objectively reasonable in the circumstances of the case, although an unreasonable position might raise questions about actual intention. 

10. Here, the formation of a view by Ms Clower that the amounts paid were to be attributed to Mr Skillern’s enforceable child support liability would have been a view entirely contrary to her own interests. Her clear and consistent evidence that she did not intend the sums to be so credited leads the Tribunal to be comfortably satisfied that she held no intention at any material time that the sums paid by Mr Skillern were to be credited against his enforceable child support liability.

11. As this is the same conclusion as the objections officer, the decisions under review will be affirmed.

DECISION

The decisions under review are affirmed.