Bambra and Hueffer (Child support)

[2021] AATA 1266

Bambra and Hueffer (Child support) [2021] AATA 1266 (18 March 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC020540

APPLICANT:  Mr Bambra

OTHER PARTIES:  Child Support Registrar

Ms Hueffer

TRIBUNAL:Member F Staden

DECISION DATE:  18 March 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – whether a fixed annual rate of child support should not apply – not unjust and inequitable to pay fixed annual rate – the application for fixed annual rate not to apply should be refused – 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

BACKGROUND

1. Mr Bambra and Ms Hueffer are the parents of two children, born 2007 and 2008 (the children). The children are recorded as being in the primary care of Ms Hueffer (79%) and the regular care of Mr Bambra (21%) since May 2012 when the child support case began.

2. Mr Bambra is the parent liable to pay child support and collection is by private arrangement. A 9 May 2013 child support agreement between Mr Bambra and Ms Hueffer essentially states that Mr Bambra will pay the children’s public school expenses in addition to his assessed child support liability.

3. On 23 July 2020, Services Australia – Child Support (Child Support) assessed Mr Bambra’s annual child support liability for the upcoming child support period as follows:

   ·     $2,934 for the period 1 September 2020 to 30 November 2021 (the fixed annual rate for two children), based on Mr Bambra’s 2019/20 provisional adjusted taxable income of $13,153 and Ms Hueffer’s 2019/20 adjusted taxable income of $48,360.

4. On 30 July 2020, Mr Bambra contacted Child Support to request that the fixed annual rate of child support not apply to him from 1 September 2020.

5. On 5 August 2020, a Child Support officer decided to reject Mr Bambra’s application for the fixed annual rate not to apply.

6. On 12 October 2020, Mr Bambra lodged an objection to the 5 August 2020 rejection decision. He was not required to make an extension of time application because he was not sent notification of the 5 August 2020 decision. Mr Bambra only became aware of that decision when he received provisional notional child support assessments dated 1 September 2020.

7. The objections officer gave Mr Bambra an opportunity to provide more evidence in relation to his application but Mr Bambra is recorded as stating that he had no more evidence than was in his income tax return.

8. On 7 December 2020, the objections officer disallowed Mr Bambra’s objection.

9. On 24 December 2020, Mr Bambra applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) for review of the objections officer’s decision.

10. A hearing was conducted on 17 March 2021. Mr Bambra and Ms Hueffer gave sworn evidence by telephone, with Ms Hueffer choosing to leave the hearing after approximately 15 minutes. The tribunal also had before it documents provided by Child Support (80 pages), a copy of which was sent to Mr Bambra and Ms Hueffer before the hearing.

11. Relevant aspects of the evidence before the tribunal are referred to in the consideration below.

ISSUES

1. The statutory provisions relevant to this review are in the Child Support (Assessment) Act 1989 (the Assessment Act).

2. The issue which arises in this case is:

   ·      Should the fixed annual rate of child support apply to Mr Bambra from 1 September 2020?

CONSIDERATION

1. The rate of child support payable by a liable parent is usually based on an administrative assessment under the Assessment Act. However, under section 65A of the Assessment Act, a fixed annual rate of child support ($1,467 for each child in 2020) is payable by a liable parent who:

   ·     Did not receive income support in the last relevant income year;

   ·     Has a last relevant income year adjusted taxable income or a current estimated income of less than the maximum basic amount of parenting payment single; and

   ·     Did not have at least shared care of the child in the relevant care period.

2. Here, Mr Bambra did not receive income support in 2019/20, the last relevant income year; has a 2019/20 adjusted taxable income of $9,585 which is less than $20,298, the maximum basic amount of parenting payment single in 2020; and has had less than shared care of the children (less than 35% care) since May 2012. It follows that the fixed annual rate of child support is payable by Mr Bambra for each of the children

3. However, under section 65B of the Assessment Act, a liable parent can apply for the fixed annual rate of child support not to apply. That parent is required to provide evidence that:

   ·     Their current income is less than the maximum basic amount of parenting payment single; and

   ·     It would be unjust and inequitable to expect them to pay the fixed annual rate of child support.

4. Mr Bambra pointed to his 2019/20 income tax assessment of $9,585 as evidence of his low income and argued that his income tax assessment had been accepted as adequate evidence twice previously. The tribunal explained that this was not sufficient evidence and referred Mr Bambra to subsection 65B(3) of the Assessment Act which states that:

   (3)  An assessment issued by the Commissioner of Taxation for the last relevant year of income shall not be sufficient evidence of the income of the parent for the purposes of this section.

5. The tribunal and Mr Bambra discussed the use of bank statements as evidence of low income. Mr Bambra told the tribunal that he has three bank accounts, two associated with his business and one for personal use. He stated that his personal bank account currently had a balance of approximately $30,000. The tribunal put it to Mr Bambra that he could draw upon the money in his personal bank account to pay the fixed annual rate from 1 September 2020. Mr Bambra said that the money in his personal bank account is his life savings. It is much less than it was before his property settlement with Ms Hueffer and should not be used for child support.

6. Even if it were accepted that Mr Bambra’s current income is less than the maximum basic amount of parenting payment single, the tribunal was unable to find that it would be unjust and inequitable for him to pay the fixed annual rate when he has savings of $30,000. The tribunal therefore affirmed the decision under review.

DECISION

The decision under review is affirmed.