Thorpe and Thorpe and CSA (SSAT Appeal) - [2008] FMCAfam 81

FEDERAL MAGISTRATES COURT OF AUSTRALIA

THORPE & THORPE & CSA (SSAT APPEAL)

[2008] FMCAfam 81

CHILD SUPPORT – Appeal from the Social Security Appeals Tribunal on question of law – Tribunal applied incorrect section of Act in decision – same test in correct and incorrect section of Act – correct test applied by Tribunal – no real purpose served by remitting for re- hearing – finding of facts made by Tribunal available on evidence – appeal dismissed.

Child Support (Registration and Collection ) Act 1988, ss.24(A)(2)(b), 25(1), 25(2), 28(1)( c), s.28A, 71(1)(a), 71A, 71A(c), 71C, 71C (2), 110B
Child Support (Registration and Collection) Regulations 1988, r.5D

LDME & JMA (SSAT Appeal) [2007] FMCAfam 712
House v The King (1936) 55 CLR 499
Clements v Independent Indigenous Authority [2003] FCAFC 143

Applicant:

MR THORPE

First Respondent:	MS THORPE
Second Respondent:	CHILD SUPPORT AGENCY

File number:

SYC 4628 of 2007

Judgment of:

Henderson FM

Hearing date:

6 November 2007

Date of last submission:

6 November 2007

Delivered at:

Parramatta

Delivered on:

11 February 2008

REPRESENTATION

Applicant:

In person

First Respondent:

In person

Solicitors for the Second Respondent:

Australian Government Solicitor, Sydney

ORDERS

That the husband’s appeal against the decision of the Social Security Appeals Tribunal (“the SSAT”) made 22 May 2007 be dismissed.
The respondent’s application for costs be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Thorpe & Thorpe is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

SYC 4628/2007

MR THORPE

Applicant

And

MS THORPE

First Respondent

And

CHILD SUPPORT AGENCY

Second Respondent

REASONS FOR JUDGMENT

Introduction

The matter of Thorpe is an appeal by the husband from a decision of the Social Security Appeals Tribunal (“the SSAT”).
The husband appeared on his own behalf. Mr G appeared as amicus on behalf of the Child Support Registrar, and the wife appeared in person.
The wife took no part in proceedings, although invited to. The matter was argued between the husband, Mr G and the Bench.
The appeal arises under s.110B of the Child Support (Registration and Collection Act) Act 1988 (“the Registration Act”). The right of appeal is on a question of law arising from the decision of the SSAT on a merits review.
The decision of the SSAT arises as a result of an appeal from a decision of the Child Support Registrar (“the Registrar”). The husband has been the moving party in all three determinations and was the appellant before the SSAT and before me.
The provisions which provide for an appeal to this Court on a question of law from a decision of the SSAT commenced on 1 January 2007. The SSAT is the ultimate Tribunal of fact. This Court is the ultimate Tribunal of law.
The decision of my brother Halligan FM in LDME & JMA (SSAT Appeal) [2007] FMCAfam 712 is relevant to the matter before me. I adopt the position he took in that matter which is that in deciding an appeal under s.110B of the Registration Act this Court should not adopt an overly pedantic approach.

The evidence

The evidence before me was:
a)An affidavit of the husband filed on 28 June 2007 containing the decision of the SSAT together with other documents being, in part, details of the objection decision dated 17 October 2006, various downloads from the website in relation to child support private agreements and submissions made by him to the Child Support Agency on 23 November 2006.
b)Documents that were before the SSAT at the hearing.

Background facts

The SSAT hearing was held on 20 March 2007 and the decision was given on 22 May 2007. The husband, the wife and the Registrar of the Child Support Agency (“the Agency”) appeared.
The husband’s appeal to the SSAT was in two parts:
a)The first was against a decision of an objections officer dated 17 October 2006 to accept arrears of Child Support in 2006 in the sum of $2,532.97; and
b)Secondly, the decision of an objections officer dated 31 October 2006 not to credit various amounts totalling $1,037.37 against Mr Thorpe’s child support liability as non-agency payments.
The SSAT found that on both objections Mr Thorpe’s appeal was not successful. He has now appealed that decision to this court.
The facts up to the delivery of the reasons for judgment of the SSAT are taken from their decision. Thereafter the facts are as found by me at the hearing.
The parties were divorced on 4 April 2006.
They have two children, T born in May 1997, and M, born in January 2000.
Mr Thorpe is the parent liable to pay child support.
On 10 October 2006 the Child Support Agency received an application from the mother requesting the Agency collect child support. Prior to this time the parties had a private collection arrangement.
The arrangement was registered with the Agency although there was no child support agreement entered into by the parties in writing.
On 13 October 2006 the Agency notified the husband of the wife’s request and advised him there were arrears of $2,971.24 for the period 10 July to 9 October 2006. The Agency acknowledged he had paid a sum of $2,049.00 for this period.
The husband wrote to the Agency on 20 November 2006 and objected to the collection of arrears stating he had paid and overpaid his obligations. The objection was disallowed by an objections officer on 8 March 2007.
The objection decision, which is attached to the husband’s affidavit, is as follows:
Assessments started from 19 January 2006 as a private collect case.
On 10 October 2006, [the wife] contacted the child support agency (CSA) to change collection on the case to CSA Collect. [The wife] claimed arrears of $2971.24 and advised that amount paid during the opt in arrears period was $2049.00. [The wife] advised that [the husband] has been paying the full mortgage and not giving her any child support – [the wife] advised that she is living in the house and the mortgage is $1366 per month and the child support liability is $1663. [The wife] advised that she wants 3 months arrears of child support and said that she would credit her share of 3 months of the mortgage payments of totalling $2049…
17 October 2006 CSA contacted [the wife] to advise that [the husband] has made 3 private health cover payments of $146.09 each during opt in arrears period. [The wife] said she is prepared for these payments to be added to amount paid and reduce arrears…
This crediting of health insurance payment reduced the arrears initially assessed by the Agency from $2,971.24 to $2,532.97.
On 25 October 2006 the husband sought to have further non-agency payments he had made credited, including $170 the wife had withdrawn on 27 July 2006 from the joint account for a child’s glasses, and bank charges totalling $1037.37.

Relevant law

A payee may elect not to have the Agency collect payments from the payer under s.24(A)(2)(b) of the Registration Act.
Under s.25(1) a payee who has previously elected not to have their liability registered for collection can later apply for registration. Section 25(2) provides the liability must be registered within 28 days.
Section 28(1)(c) provides the liability is enforceable on a day no later than 60 days after the day on which the Registrar receives the request from the payee to collect. Thus by adding the time period in ss.25(2) and 28(1)(c) the arrears period of three months is arrived at.
The Agency must collect the assessed arrears. The Agency must be satisfied that the arrears have not been paid and that they fall within the relevant period.
The husband’s position was that he paid his total child support liability of $1,663 per month into a joint account. From this the mortgage of $1,366 was paid and the $267 remaining was for the wife to spend on private health for herself and the children, and money for her bills.

SSAT decision

The husband lodged an appeal with the SSAT on 20 March 2007.
The Tribunal found that there were two issues to be decided:
a)The first was whether the husband is to pay arrears of child support for the period between 10 July 2006 and 9 October 2006. Germaine to this issue was whether the parties had a private agreement for child support within the meaning of the Registration Act; and
b)Whether the refusal to credit Mr Thorpe the sum of $1,037 as non-agency payments was correct under s.71C of the Registration Act.
Prior to the SSAT proceedings the parties resolved their property dispute. At the time of the Tribunal hearing and this appeal the wife was the sole registered proprietor of the property.
Mr Thorpe’s evidence was this.
He agreed his matter was a private collect case. The wife contacted the Agency in October 2006 to request it become an Agency collect case.
He believed he had been meeting his obligation to pay child support by paying $1,663 into the joint account and the additional $297 left over after the mortgage was paid was an amount over and above his child support obligations as his children and the wife were living in the home rent free.
He said that until 1 July 2006 his liability for child support was $2,043 per month. It then reduced to $1,663. When the assessment reduced to $1,663 Mr Thorpe contended he was still overpaying his obligation for child support by $297 a month.
His wife would accept whatever went into the account without question and that was just the end of the matter. Mr Thorpe’s view was that the Agency’s decision to recover arrears in these circumstances was incorrect.
He acknowledged he had a continuing obligation to meet his share of the monthly mortgage repayments, namely $683, however as the wife and his children were living in the property rent free this sum should be offset against his obligation to pay child support.
His position was that his payment of the mortgage liability during the arrears period should be assessed as a prescribed non-agency payment. He stated that this was so because the child support guidelines he downloaded from the internet provide that a previous private child support arrangement of the parties should be taken into account by the Agency. The guidelines also provided that child support arrangements can be oral and need not be in writing.
He said that that as he and his wife had acted on an arrangement that had been perfectly acceptable to them for the previous three years he had no arrears of child support.
He believed he was being asked to pay his child support liability twice for the three month arrears period. His view was that it had been the mutual intention of the parties that the previous private arrangement was the totality of the husband’s child support liability.
Alternatively, Mr Thorpe said that both parties had a mutual intent that payments towards his share of the mortgage would be considered as satisfying in part his child support liability payments as Mrs Thorpe was living in the property rent free. He said:
“At the same time Mrs Thorpe just accepted it without question. This arrangement has been going on for years.”
Mr Thorpe argued that if the Tribunal did not accept his position in relation to the mortgage payment then he wanted various amounts to be credited as non-agency payments, including bank fees, health insurance premiums, a mortgage payment for October and the $170 withdrawn by Mrs Thorpe from the joint account totalling $1,037.
He said there was a mutual intention that these payments should be treated as non-agency payments.
He said had he known this was going to happen he would have insisted earlier that the payments became Agency collect from the beginning as he believed Mrs Thorpe was allowed to double dip by the decision.
Mrs Thorpe’s evidence was this.
She said from July 2006, when the payment into the joint account reduced from $2,043 to $1,663 she had very little, only $297, left to pay towards the support of the children once the mortgage was paid. She had to be careful and in order to pay health insurance fees, sports fees, and other expenses.
She agreed she had accepted the private arrangement previously but that this was because she did not know any better. It was not until she asked the Agency to collect her child support that she realised she had been missing out on part of her child maintenance entitlement because her husband’s obligation to pay his share of the mortgage was being paid out of monies paid to her for child support.
Mrs Thorpe stated there was no mutual intent that her husband’s share of the mortgage payments would be credited towards his child support liability. She acknowledged that she and her husband had agreed that the totality of the mortgage payment would be satisfied monthly out of the monies paid by him as his assessed child support and that this was the priority and primary allocation of child support monies.
This priority of payment extended to payment of health insurance premiums. The wife agreed this had been the pattern of spending over the years but she had never agreed that the monies paid towards the husband’s share of the mortgage from his child support payment would be considered as non-agency payments. Her position was that the only thing she and the husband agreed to was the allocation and order of spending of the monies he deposited into the account.

Relevant findings of facts by the SSAT

The Tribunal made the following findings.
The parties had a private unregistered arrangement for the payment of child support and those monies were deposited into a joint account.
The wife registered her case with the Agency on 19 January 2006 and continued to privately collect payments from the husband.
The original assessment was $2,043 per month which was reduced in July 2006 to $1,663.
On 10 October 2006 the wife requested the Agency collect child support.
The parties had no written agreement in relation to child support or any offset alleged by Mr Thorpe.
The parties had an agreement on how the money paid as child support was to be spent and the order of spending.
There was no agreement by the wife that spending the money in the agreed manner was in complete or partial satisfaction of the husband’s obligation to pay child support and there was no mutual intention as asserted by Mr Thorpe.
Mrs Thorpe’s evidence that she did not intend the husband’s payment of his share of the mortgage to be offset against his child support liability was accepted by the Tribunal. This is the salient finding of fact in this matter.
The Tribunal was not satisfied that it was intended by both the husband and wife that payment of the husband’s 50% share of the mortgage, which he agreed was his obligation, was in satisfaction of any child support liability.
Mr Thorpe’s argument that under s.71C payment by him of his one-half share of the mortgage as a prescribed payment failed as he was only discharging his obligation to pay his share of a debt.
That the remainder of the monies asserted by the husband as paid by him as prescribed payments were either not prescribed payments under the Regulations or not payments additional to his child support liability as they had been paid out of his child support liability payment. Thus there were no payments to credit him with within the meaning of a payment under s.71C.
The Tribunal found there was no mutual intention evident in any of the transactions between Mr and Mrs Thorpe.
Mr Thorpe’s proposition that by paying the overall mortgage he ought to be able to offset rental he was not charging the wife for her occupation of the home was properly rejected by the Tribunal.
The Tribunal said at paragraph 42, that the result of the agreement as to spending has been that Mrs Thorpe has subsidised the husband’s obligation to pay his share of the mortgage because she paid the entire mortgage from the child support payments he paid. That is a correct statement of the fallacy of Mr Thorpe’s argument.
On these findings, and in particular that Mrs Thorpe had been subsidising her husband’s obligation to pay half the mortgage, it is not surprising the Tribunal found there was no mutual intention for the agreement as contended for by Mr Thorpe.

Relevant findings of law by SSAT

When the wife applied under s.25 of the Registration Act to have her child support liability registered she initially elected for private collection.
Once the wife reversed her election on 10 October 2007 and sought the Agency collect, s.28A of the Registration Act came into operation. In part that section provides that the Agency must grant her application and is entitled to collect arrears for a period back dated up to three months.
The Tribunal relied upon s.71A of the Act in coming to its decision and findings in relation to the intention of the parties. That section deals with how the Agency credits or deals with payments made directly by a liable parent to a third party against a child support liability. Section 71A is as follows.
Payments to third persons by payer
Subject to section 71D, if:
(a) the payer of an enforceable maintenance liability pays a third party an amount that partially or completely satisfies a debt owed by:
(i) the payee of the enforceable maintenance liability; or
(ii) the payer; or
(iii) both the payer and payee; and
(b) the payer or the payee applies to the Registrar, in the manner specified by the Registrar, to have the amount, or part of the amount, received by the third party treated as having been paid to the Registrar; and
(c) the amount paid, or a part of the amount paid, was intended by both the payer and the payee to be paid in complete or partial satisfaction of an amount payable under the enforceable maintenance liability in relation to the child support enforcement period;
the Registrar must, in spite of section 30, credit the amount, or part of the amount, received by the third party against the liability of the payer to the Commonwealth in relation to the amount payable under the enforceable maintenance liability.
It is clear s.71A of the Act requires that both parties have the intention, not just one party.
The salient finding of fact is that there was no mutual intention.
The husband’s appeal can only succeed on two grounds.
One, that the Tribunal made an error of law of which this Court is the final arbiter.
Secondly, if the facts as found by the Tribunal were not open to it on the evidence or it made an error of law in coming to that factual finding.

Grounds of appeal

As said by my brother Halligan FM in his decision LDME & JMA (SSAT Appeal), it is helpful if an appellant can set out with particularity the grounds of their appeal. Mr Thorpe has set out his grounds of appeal in clear and concise language. He has identified the questions of law to be raised and the reasons why he contends the appeal should be granted.
His grounds of appeal appear in his affidavit. They are:
(1)That the Tribunal erred in law by not finding that a mutual intention existed with respect to the existence of a private agreement in terms of s.71A(c) as an acknowledged agreement as to how child support was to be paid and applied.
(2)That the Tribunal erred in law in not considering the intention of the mother at the time the payment was made.
(3)That the Tribunal erred in law in not finding that the private agreement between the husband and wife was a contract.
(4)That the Tribunal erred in law in considering whether the crediting of the full mortgage under the private agreement should be allowed or not.
(5)That the payments were made in accordance with a private arrangement and must be credited under s.71A of the Act.
(6)That the Tribunal erred in law in determining that 50% of the mortgage payments were made as a discharge of the liability of the husband and not intended as child support.
(7)That the Tribunal erred in law in not considering 50% of the mortgage payments as payment in-kind in accordance with a private agreement.
(8)That the Tribunal erred in law by making propositions that were not in evidence and to that end he referred to paragraph 46 of the decision which was Mr Thorpe’s throw away line that “had he known “this” would happen he would have made payments direct to the agency”. The Tribunal said had he chosen this option he would have been liable to pay the full child support to Mrs Thorpe along with his contribution to the joint share of the mortgage.
(9)That the Tribunal erred in law by rejecting other non-agency payments on the basis that these payments were already credited which was not in fact the case.

The husband’s affidavit and his submissions went into great detail concerning the law of private contracts and private arrangements. He annexed copies of documents downloaded from the Agency’s internet site concerning private agreements. He contended that the Act provides for payment and collection of child support directly between parties. That a private arrangement for payment and collection can be spoken or written.
He further contended that private payment options included payments in-kind, that the value of in-kind payments should go towards the liability for maintenance of the children and help the payee educate or look after the children. Payments, he submitted could be made however and whenever the parties decided as long as both parents agree.
I accept many of the husband’s submissions as to what parties can agree to do. It is the word agree which is vital to the determination of this appeal.
The Tribunal applied s.71A of the Act to their findings of fact and in coming to their decision regarding the intention of the parties. That section deals with how the Agency credits or deals with payments made directly by a liable parent to a third party against a child support liability.
However that is not what was occurring in this case. Mr Thorpe was not paying his child support liability directly to the mortgagee on the wife’s behalf but was paying his child support liability directly to the wife for her to pay to the third party mortgagee. That circumstance is covered by s.71(1)(a) not 71A.
The SSAT applied the incorrect section of the Act in coming to its decision. Thus, prima facie there has been an error of law by the Tribunal.
For this purpose the operative parts of ss.71A and 71(1)(a) are virtually identical. The sections are as follows:
Section 71A:
Payments to third persons by payer
Subject to section 71D, if:
(a)the payer of an enforceable maintenance liability pays a third party an amount that partially or completely satisfies a debt owed by:
(i) the payee of the enforceable maintenance liability; or
(ii) the payer; or
(iii) both the payer and payee; and
(b) the payer or the payee applies to the Registrar, in the manner specified by the Registrar, to have the amount, or part of the amount, received by the third party treated as having been paid to the Registrar; and
(c) the amount paid, or a part of the amount paid, was intended by both the payer and the payee to be paid in complete or partial satisfaction of an amount payable under the enforceable maintenance liability in relation to the child support enforcement period;
the Registrar must, in spite of section 30, credit the amount, or part of the amount, received by the third party against the liability of the payer to the Commonwealth in relation to the amount payable under the enforceable maintenance liability.
Note: Section 16A provides for the Registrar to specify the manner in which an application may be made.
Section 71(1)(a):
Direct payments to payee
(1) Subject to section 71D, if:
(a) 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; 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 shall, in spite of section 30, credit the amount received by the payee against the liability of the payer to the Commonwealth in relation to the amount payable under the liability.
The key phrase in both sections which is relevant to the findings of fact and law in this appeal are:
…the amount paid, or a part of the amount paid, was intended (71A);
…receives from the payer an amount intended by both the payer and the payee [71(1)(a)]; and the common part
…to be paid in complete or partial satisfaction of an amount payable under the enforceable maintenance liability in relation to the child support enforcement period.
Both sections require the same test to be fulfilled, namely for the Tribunal to determine whether,
…the or an amount intended by both parties to be paid.
That the Tribunal relied upon an incorrect section of the Act in its decision has not resulted in an error of law as the test or finding common to both sections is, was there a mutual intention? This was the test posed by the SSAT and answered by them which resulted in a finding that there was no mutual intention.
The error made by the SSAT in applying the incorrect section has in reality not resulted in a misapplication of the law. The test applied by the Tribunal to come to the finding of fact is the correct test and is the same under each section. In these circumstances no purpose would be served by remitting the matter for a re- hearing as set out in the decision of the Full Court of the Federal Court in Clements v Independent Indigenous Authority (2003) FCAFC 143 at paragraph 41:
Ordinarily upon finding that the Tribunal has made an error of law affecting the result, the court will exercise the powers given to it by section 44( 5) of the AAT Act to set aside the decision of the Tribunal. The Court can refrain from exercising its power to remit the case if there would be no purpose served by hearing the case heard again.
As the Tribunal accepted the wife’s position she did not intend the payment by the husband to be in partial or complete satisfaction of his child support liability it found there was no mutual intention and the husband’s contention and position of mutual intention could not be supported.
The Tribunal stated:
The key phrase (and point of dispute) is whether the amounts paid during the arrears period “was intended by both the payer and the payee to be paid in complete or partial satisfaction of an amount payable under the enforceable maintenance liability in relation to the child support enforcement period”.
The Tribunal made a finding of fact that this was not the mutual intention of the parties. The Tribunal was entitled to make this finding of fact on the evidence before it and applied the correct test to the evidence to come to its finding of fact. The result is that although there has been an error of law by the Tribunal, no error of fact resulted as the correct test was applied to the evidence, the findings of a fact were available to it on the evidence and no purpose would be served by remitting the matter for a re- hearing.

Grounds of appeal

Going now to Mr Thorpe’s specific grounds of appeal. Where written s.79A should read section 79(1)(a):

Ground 1: That the Tribunal erred in law by not finding that a mutual intention existed with respect to the existence of a private agreement in terms of s.71A(c) as an acknowledged agreement as to how child support was to be paid and applied.

The Tribunal found as a fact there was no mutual intention. This ground is not an error of law but a finding of fact with which Mr Thorpe disagrees. I have found there was no demonstrated error of application of the law by the Tribunal in coming to that finding and that the finding was open to it on the evidence. This ground fails.

Ground 2: That the Tribunal erred in law in not considering the intention of the mother at the time the payment was made.

The Tribunal did consider the mother’s intention at the time the payment was made and found there was no mutual intention. Thus Ground 2 fails

Ground 3: That these payments were made in accordance with a private arrangement and must be credited under s.71A of the Act.

The payments will only be credited under the Registration Act when there is a mutual intention. The Tribunal found that there was no mutual intention. Mutual intention is a key element of an agreement under the Act. Cases on common law definitions are of little assistance.
The Tribunal found there was no mutual intention between the parties. They found that the arrangement the parties had was as to priority of payments and was not an agreement in lieu of, or substitution of, the husband’s obligation to pay child support. Thus, there was no agreement for child support purposes. Ground 3 fails

Ground 4: That the Tribunal erred in law in not finding that the private agreement between the husband and wife was a contract.

This is not a matter the Tribunal has jurisdiction to entertain and is not a ground of appeal. In any event this ground would fail for the reason set out in Ground 3.

Ground 5: That the Tribunal erred in law in considering whether the crediting of the full mortgage under the private agreement should be allowed or not.

This ground is a restatement of Ground 3. The Tribunal found there was no private agreement for child support purposes as there was no mutual intention. Further the Tribunal did not make such a finding. The issue of crediting the mortgage arose in the husband’s contention for credit for non agency prescribed payments regarding the mortgage.

Ground 6: That the Tribunal erred in law in determining that 50% of the mortgage payments were made as a discharge of the liability of the husband and not intended as child support.

This was not a finding but arose from a concession by the husband that he had an obligation to half the monthly mortgage of $683. This concession formed part of the facts relied upon by the Tribunal to support its finding that there was no mutual intention of the parties. As the husband made the concession it is not a ground of appeal and Ground 6 fails.

Ground 7: That the Tribunal erred in law in not considering 50% of the mortgage payments as payment in-kind in accordance with a private agreement.

Ground 7 fails for the same reasons as Grounds 3 and 6. The Tribunal found there was no mutual intention. Mr Thorpe made a concession he had an obligation to pay one half of the monthly mortgage.

Ground 8: That the Tribunal erred in law by making propositions that were not in evidence.

Mr Thorpe referred to paragraph 46 of the decision which was the Tribunal’s answer to a throw away line by Mr Thorpe that “had he known ‘this’ would happen he would have made payments direct to the agency”. The Tribunal stated had this course of action been followed Mr Thorpe would have been required to pay his full child support and one half the mortgage payments.
The Tribunal did not make a finding. They made a comment in answer husband’s throw away line. This was obiter and not relevant to the decision. The obiter does however demonstrate the fallacy of Mr Thorpe’s case. Ground 8 fails.

Ground 9: That the Tribunal erred in law by rejecting other non-agency payments on the basis that these payments were already credited which was not in fact the case.

The Tribunal found the payments alleged by the husband to be either:
a)Payments that were not specified payments within the meaning of regulation 5D of the Child Support (Registration and Collection) Regulations 1988; or
b)Not additional payments by Mr Thorpe but payments made by the wife from her child support payments. As no monies were paid by the Mr Thorpe over and above his obligation to pay child support there was nothing to credit him with within the meaning of section s.71C(2) of the Act.
However payment from the joint account for spectacles for the children is a medical expense and thus within the definition of specified payment under r.5D of the Child Support (Registration and Collection) Regulations 1988. This expense was paid by the wife from her child support payments. It was not a payment by the husband over and above his child support payments. Thus it could never be credited as a specified payment by Mr Thorpe.
All Mr Thorpe ever paid to the wife was her child support entitlement. The wife has paid his share of the mortgage from that payment. The Tribunal found payment by the wife of the husband’s share of the mortgage was not intended by her to be in substitution of her entitlement to child support. Having made that finding the husband has not made any payments to the wife over and above his child support obligation. It has been the wife subsidising the husband and not as he contends the wife double dipping for the three month arrears period. Ground 10 fails.

Conclusion

All Mr Thorpe’s grounds of appeal have failed.
Whether there was an agreement in existence between he and his wife at common law or under the law of contracts is not the issue the Tribunal was charged with determining.
The Tribunal was charged with determining whether the parties had an agreement which satisfied the requirements of s.71(1)(a) and not the law of contract. Once the Tribunal found as a fact that there was no mutual intention there was no agreement under the Act and the result was clear.
The Tribunal is the sole arbiter of fact. I have found the facts as found were open to them on the evidence and were not found under a misapprehension of the law as the Tribunal applied the correct test to reach their findings of fact. Mr Thorpe’s appeal must fail.
The outcome is that the Tribunal preferred Mrs Thorpe’s evidence to Mr Thorpe’s evidence. It was open to them to prefer Mr Thorpe’s evidence however they did not. Merely being aggrieved by a decision is not enough to ground an appeal. It must be demonstrated that there was an error which affected the ultimate decision. I have found there was no such error. See the decision of House v The King (1936) 55 CLR 499.

Costs

The issue of costs was raised by the Child Support Registrar.
Before making an order for costs I must be satisfied that I should exercise my discretion and make an order for costs. In considering the application for costs I take into account:
a)That this is a new area of law; and
b)I have found that the husband has made out his case that the Tribunal erred in law in that they applied the incorrect section of the Act to their determination. However, ultimately nothing turned on that finding insofar as this appeal is concerned as the decision made was not affected by that error.
In those circumstances I will not exercise my discretion to make an order for costs against the husband.

I certify that the preceding one-hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Henderson FM

Associate: Maryrose Portelli

Date: 11 February 2008