Neville and Coach (Child support) [2018] AATA 3285 (17 July 2018)

Last Updated: 10 September 2018

Neville and Coach (Child support) [2018] AATA 3285 (17 July 2018)

DIVISION: Social Services & Child Support Division

REVIEW NUMBERS: 2017/SC011547

APPLICANT: Mr Neville

OTHER PARTIES: Child Support Registrar

Ms Coach

TRIBUNAL: Member K Timbs

DECISION DATE: 17 July 2018

DECISIONS:

The Tribunal sets aside the decisions under review and substitutes decisions to credit amounts equal to the registered liability paid by Mr Neville to Ms Coach from 6 May 2002 to 13 April 2003.


CATCHWORDS
Child support – Non-Agency payments – Payments made by the payer to a bank account of the payee’s sister – Payments received by the payee – Payments intended by the payer and by the payee to satisfy the child support liability for the period – Decision under review set aside and substituted

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

BACKGROUND

1. Mr Neville and Ms Coach are the parents of [Child 1] (born November 2000). The Department of Human Services made child support assessments for [Child 1] on behalf of the Child Support Registrar. Mr Neville is the parent liable to pay child support for an assessment period from 21 February 2002 to 13 April 2003 (see the decision in application for review number SC010768 for the end date of the assessment). The liability is registered on the Child Support Register.
2. Mr Neville made the following payments (the payments) that total approximately $26,000 to an account in the name of his sister, Ms Neville:
   • $2,994 paid 6 May 2002
   • $2,994 paid 25 June 2002
   • $2,985 paid 23 July 2002
   • $994 paid 7 August 2002
   • $2,994 paid 23 August 2002
   • $2,994 paid 23 August 2002
   • $994 paid 17 October 2002
   • $2,794 paid October 2002
   • $3,004 paid 22 November 2002
   • $3,194 paid 19 February 2003
3. On 4 October 2016, the Department decided to credit the payments against his liability in the Register. On 24 March 2017, an Objections Officer of the Department allowed Ms Coach’s objection to those decisions.
4. On 26 April 2017, Mr Neville applied for review of the Objections Officer’s decisions. The Tribunal heard the application for review on 18 May 2018.

ISSUES FOR THE TRIBUNAL TO DETERMINE

5. The Registrar makes child support assessments for child support periods using a formula in the Child Support (Assessment) Act 1989. The liability arising from the assessment is a registerable maintenance liability under section 17 of the Child Support (Registration and Collection) Act 1988 (the Act). Unless the payee makes a contrary election, the Registrar must register it (section 24A).
6. Once registered, the liability becomes a debt to the Commonwealth (an enforceable maintenance liability) to be collected by the Department. However, section 71 of the Act requires the Registrar to credit payments made by the payer to the payee against the registered liability on application by either the payee or payee in the following circumstances:
   • The payee receives the payments from the payer of an enforceable maintenance liability.
   • The payer and the payee both intended the amount to be paid in complete or partial satisfaction of an amount payable under the liability.
7. To deal with Mr Neville’s application for review, the Tribunal considered whether the payments satisfy those criteria.

CONSIDERATION

Evidence considered

8. The Tribunal considered documents relevant to the decision under review provided by the Department and documents and submissions from both the parties provided by their solicitors, [Ms A] for Mr Neville and [Mr B] for Ms Coach. It heard evidence at hearing from Mr Neville and Ms Coach and submissions from [Mr B] and [Mr C], barrister for Mr Neville.

Did Ms Coach receive the payments?

9. There is no dispute that Mr Neville and Ms Coach were the payer and payee respectively of an enforceable maintenance liability when he made the payments. It follows the payments satisfy the first criteria if Ms Coach received them.
10. Ms Neville is Mr Neville’s sister. She lives in [Country 1] and has not resided in Australia at any relevant time. There is no dispute the only funds in the account before, during and after the assessment period were deposited by Mr Neville. Mr Neville told the Department and the Tribunal that he made payments for [Child 1]’s benefit to Ms Neville’s account at Ms Coach’s request.
11. Ms Neville provided a statutory declaration to the Department (page 35) that she opened the account when she came to Australia to see [Child 1] in January 2001. She said she did so at Ms Coach’s request and that the money paid to the account would be ‘solely for [Child 1]’s benefit’. She states she made Ms Coach a signatory to the account and gave her the ATM card and password so that she could access the funds in the account.
12. Ms Coach agrees she was a signatory and therefore had access to the funds in the account. There is no evidence of any other signatory and Ms Neville was not in Australia when Mr Neville made the payments. Ms Coach was therefore the only person in Australia authorised to access the payments. The bank sent the statements of account to Ms Coach’s home and all debit transactions were made in that area. (They were mainly large cash withdrawals.)The obvious inference from these facts is that Ms Coach received the payments by withdrawing funds from the account.
13. Ms Coach’s evidence is that she did not have the ATM card at any time and did not make the withdrawals. She told the Department she and [Child 1] needed care following his birth and that [Child 1] has continued to need care because of a disability. She said Ms Neville came to Australia in accordance with a family agreement to care for them. She said she had left her employment and opened an account so that Mr Neville could deposit money for her living expenses.
14. She did not dispute Mr Neville’s evidence that Ms Neville came to Australia on a Visitor visa and stayed only a few weeks. However, she said she intended to stay for three months. The Tribunal suggested Ms Neville was not likely to open a bank account during a short temporary stay in Australia, whether of a few weeks or a few months. Ms Coach claimed that was not the case and that the Tribunal’s view did not take into account Ms Neville’s upbringing in poverty, cultural background and her employment in [a certain] industry. In the Tribunal’s view, none of those matters would make Ms Coach’s evidence more likely or explain why Ms Neville would make Ms Coach a signatory if she opened the account for such a limited purpose. For that reason, the Tribunal does not accept Ms Coach’s evidence that Ms Neville opened the account so Mr Neville could transfer funds for her own benefit.
15. Ms Coach told that the Tribunal that, despite being the only person authorised to access the funds, she did not make any withdrawals. She said Ms Neville did not give her the ATM card at any time and it was held at different times by her, a person employed to care for her and [Child 1], Mr Neville’s mother and by her parents. She said that her parents had the card and received the payments during the assessment period.
16. She firstly told the Department her parents received the money to compensate her father for giving up work to care for [Child 1] and Ms Coach. In her objection, she also said Mr Neville made the payments:
    • to repay a customary debt he had agreed to meet equal to the cost of her education in Australia (of approximately $250,000);
    • to satisfy promises made to her parents to purchase a property in Australia; and
    • to pay her parents to care for her and [Child 1].
17. Ms Coach repeated her evidence about a customary debt at hearing. She said her parents expected her to repay a loan of approximately $250,000 they took out for her education and that Mr Neville promised her parents to pay this amount as a condition of their marriage. She described the debt as ‘like a dowry’.
18. Mr Neville denied he made such a promise. He said it is customary in [their] culture (depending on the country) for the husband to pay an amount to the family of his wife when they marry. However, he said it is usually a token amount and that $250,000 is in excess of any cultural expectations.
19. Following the hearing, [Mr B] provided articles from a range of sources about wedding customs in [Country 2] and [Country 3]. They confirm it is common for husbands to pay a ‘bride price’ but none of the material suggests the amount would be as high as $250,000.
20. Ms Coach’s mother provided a written statement after the hearing. She said she and her husband expected Ms Coach to pay off a loan they took out for her education. She said Mr Neville agreed to take on that obligation if Ms Coach could not work (and she did not suggest he owed that amount as a ‘bride price’). [Mr B] provided other articles about enforcement of relatively high amounts for maintenance for elderly parents in [Country 3]. They support the contention that Ms Coach’s parents expected her to repay the cost of her education. However, they do not indicate an obligation of that kind might fall on a son-in-law.
21. For those reasons, the Tribunal does not accept Mr Neville had any customary debt to Ms Coach’s parents either in satisfaction of a ‘bride price’ or because Ms Coach was expected to repay the cost of her education.
22. Mr Neville agreed he assisted Ms Coach to purchase a property in 2000 and that he entered into a deed that states she would be the sole proprietor of the property and he would ‘continue contribute (sic) the finance to purchase the property’ (page 349 of SC011519). There is some dispute about why and when Mr Neville executed the document. However, both parties agreed it was consistent with cultural expectations to provide a home for an intended wife. This does not assist Ms Coach because there is no reason to make payments to Ms Coach’s parents to satisfy the deed and/or the cultural expectation. He owed those obligations directly to her.
23. Mr Neville’s evidence is that he did not pay the mortgage directly and that payments made to the account satisfied those obligations. Ms Coach said Mr Neville stopped meeting the obligation to meet mortgage repayments and her parents had to step in. However, when pressed, she said she did not know how she paid her mortgage for the period to 2007 when Mr Neville made similar payments to the account because she had a disability after [Child 1]’s birth.
24. Ms Coach told the Tribunal she and [Child 1] needed 24 hour care after his birth and that she and Mr Neville agreed the money in the account was to pay the living costs of persons who provided that care. She said, ‘whoever would be caring for us would have access to that bank account’ and that the ATM card was passed from Ms Neville to the other persons referred to above because they provided care for them. She said her parents had the card when Mr Neville made the payments because they cared for her and [Child 1].
25. The Tribunal firstly finds that this is inconsistent with her assertion the payments were for a customary debt to her parents. In its view, it is also unlikely Mr Neville would make relatively generous payments solely for the benefit of Ms Coach’s parents and make no provision for [Child 1].
26. The Tribunal also noted Ms Coach’s parents had settled permanently in Australia to provide care by the start of the assessment period and that Mr Neville continued to make similar payments to the account until 2007. It asked why they did not ask Mr Neville to pay them directly if he made the payments for their benefit. Her first explanation was that her parents were too busy to make such a request. The Tribunal pointed out it would take little time to send an email or letter with their bank account details. She then said it was difficult to contact Mr Neville. The Tribunal does not accept the explanation because of the length of time Mr Neville continued to make payments to the account.
27. Ms Coach’s mother signed a statement made by Ms Coach that included the assertion that she received the payments for her own benefit. However, the statement in her words made after the hearing does not repeat that evidence. Ms Coach’s mother does not suggest she received any of the payments to meet her living expenses or as payment for caring for [Child 1] and Ms Coach. Ms Coach’s evidence that her parents received the payments from Mr Neville to meet their expenses is therefore uncorroborated.
28. The Tribunal is entirely unconvinced that Ms Coach’s parents received the payments for the above reasons. It prefers the evidence of Mr Neville and Ms Neville that Ms Neville opened the account at Ms Coach’s request for Mr Neville to make payments for [Child 1]’s benefit (including the mortgage payments on the home he lives in with Ms Coach) and to satisfy any other legal or cultural obligations he owed to Ms Coach.
29. Mr Neville told the Tribunal that he complied with Ms Coach’s request to make payments in this way so that she would receive Government benefits. Ms Coach was obliged to notify Centrelink if she received the amounts paid by Mr Neville and she told the Tribunal she did not do so. The payments would have made her ineligible or have significantly reduced her entitlement to either income support or family tax benefit if Centrelink took them into account as either income or child support. (Centrelink may amend her rate of payment at a later time and raise a debt for amounts that she was not entitled or eligible to receive.)
30. Ms Coach was the only person in Australia authorised to access the funds and the Tribunal does not believe her evidence her parents or any other person used the ATM card because they were entitled to the funds. It prefers Mr Neville’s evidence that he made the payments to her through his sister’s account and infers she made, or authorised, all the debit transactions in the bank account statements. It finds she received the payments directly from Mr Neville in that way.

Mutual intention

31. Mr Neville came to Australia for several months in 2000 and attended [Child 1]’s birth. He returned to [Country 4] and lived separately from Ms Coach and [Child 1] during most of 2001. He said the relationship continued during that time and finally broke down in February 2002 when he visited Ms Coach and [Child 1] and decided to return to [Country 4] permanently. Ms Coach said the relationship ended soon after the birth but, when pressed, she said Mr Neville started treating her differently and she stopped thinking of him as her husband. Her evidence was vague and the Tribunal infers the relationship was troubled after [Child 1]’s birth and that it finally ended in February 2002.
32. Mr Neville made payments of between $3,000 and $5,000 a month to the account during 2001 before the start of the assessment period and before the end of the relationship. The Tribunal infers he made the payments for living and other expenses for Ms Coach and [Child 1] because they were his partner and dependent child. The payments ceased for several months when the relationship ended.
33. Mr Neville said he made the payments for [Child 1]’s benefit generally and did not concede he was aware of the child support assessment. From February 2002, the Department sent notices of assessment to his parents’ address in [Country 1]. The Tribunal (as presently constituted) did not accept his evidence that he did not receive those notices (for the reasons for decision in SC010768). It is satisfied he was aware of the child support assessment for [Child 1], at or about, the time he made the first of the payments.
34. The Tribunal noted he had undertaken to pay Ms Coach’s mortgage and asked him how it could know the payments were not for that purpose, rather than for child support. He said he believed Ms Coach’s mortgage was approximately $1,000 a month and his payments satisfied that obligation and to pay for their living expenses. Ms Coach firstly disputed the payments would cover the mortgage but [Mr B] clarified her bank records show she paid approximately $600 per fortnight (approximately $1,300 per month).
35. Mr Neville said he did not speak to Ms Coach about how much child support he should pay (except when she called him from time to time to ask for additional money for particular expenses). He said Ms Coach’s parents asked him to sign an agreement to pay her $3,000 before he left Australia in February 2002 but he did not do so. He said he later thought the amount was reasonable. He said it cost him approximately $1,500 a month to live in [Country 4] and, as living costs in in Australia were similar, he believed $3,000 a month ‘was enough’ to cover living costs for both Ms Coach and [Child 1].
36. The annual rate for the assessment period was $10,498 (page 191 of SC011647) and the amount owing for the whole of the assessment is approximately $12,000. Mr Neville made five additional payments totalling approximately $15,000 during the assessment period in June and December 2002 and January, March and April 2003 (see SC011519). He therefore paid Ms Coach approximately $40,000 during the assessment period, which is significantly in excess of his child support liability and Ms Coach’s mortgage payments. The Tribunal is satisfied on that basis that Mr Neville intended the payments made to the account to fully satisfy all his financial obligations to Ms Coach, including the liability to pay child support for the assessment period.
37. The Tribunal noted Ms Coach spoke to an officer of the Department on 13 March 2002 about her application for child support and said Mr Neville had agreed in writing in February 2002 to pay her $3,500 a month (page 18). The Tribunal suggested this demonstrated she intended the payments of approximately $3,000 would satisfy his obligation under the child support assessment. Ms Coach said that was not the case and that she did not understand that child support did not include payments made for the benefit of her parents. The Tribunal has not accepted her evidence that the payments were for that purpose. It infers from the record of the contact in February 2002 that Ms Coach understood Mr Neville made the payments to satisfy all his legal and customary obligations to her, including the obligation to pay child support for [Child 1]. It finds she received them on that basis and therefore intended that Mr Neville make the payments in complete satisfaction of Mr Neville’s liability to pay child support for the assessment period.

Conclusion

38. The Tribunal has found Ms Coach received the payments from Mr Neville and that both parties intended them to completely satisfy his obligation to pay child support for the assessment period. In that case, section 71 applies and the Tribunal will set aside the decisions under review and substitute decisions to credit so much of the payments that will satisfy the liability Mr Neville owes in the Register for the assessment period.

DECISION

The Tribunal sets aside the decisions under review and substitutes decisions to credit amounts equal to the registered liability paid by Mr Neville to Ms Coach from 6 May 2002 to 13 April 2003.