Blakley and Wigsall (Child support)

[2022] AATA 4985

Blakley and Wigsall (Child support) [2022] AATA 4985 (12 December 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/HC024722

APPLICANT:  Mr Blakley

OTHER PARTIES:  Child Support Registrar

Ms Wigsall

TRIBUNAL:Member P Noonan

DECISION DATE:  12 December 2022

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – estimate of income - whether the estimated income is less than the amount likely to be the actual income - estimate of income correctly 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 Blakley and Ms Wigsall have an active child support assessment.

2. The child support assessment for the period 12 July 2022 to 31 August 2022 was, in part, based upon Mr Blakley’s 2020/21 taxable income of $116,669.

3. On 12 July 2022 Mr Blakley lodged an estimate of income of $0 for the period 12 July 2022 to 30 June 2023, which was accepted by Services Australia. Ms Wigsall subsequently objected to this decision. On 14 September 2022 an objections officer allowed her objection and decided not to accept Mr Blakley’s estimate of income.

4. On 26 September 2022 Mr Blakley applied to the Administrative Appeals Tribunal (‘the Tribunal’) for a review of the objections officer’s decision.

5. The Tribunal conducted a hearing into the application on 12 December 2022 and Mr Blakley and Ms Wigsall both gave evidence on affirmation by conference telephone.  

6. The Tribunal also had before it hearing papers prepared by Services Australia (folios 1 to 209) and further submissions by Ms Wigsall (folios B1 to B10), a copy of which was provided to the parties to the matter. 

ISSUES

1. The issues which arise in this case are:

   ·     Is the estimate less than the likely actual income?

   ·     Should the estimate have been accepted or refused?

CONSIDERATION

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

2. Section 60 of the Act clearly sets out that an income estimate for a part of a year of income must consist of an income estimate covering the period from the start day for the election and ending at the end of the last day of the year of income.

3. An income estimate may be rejected if it is less than what the Child Support Registrar (or the Tribunal on review) considers is likely to be the actual amount of the parent’s adjusted taxable income: paragraph 63AA(2)(a) of the Act.

4. When a person provides a part year income estimate as is the case in this matter, they are required merely to forecast their taxable income and any other components that can form part of their adjusted taxable income. However, section 60 of the Act requires the estimate to be for the remaining period of the income year or 30 June 2023 in this case.

5. Section 43 of the Act sets out how to work out a person’s adjusted taxable income.

6. In making his income estimate Mr Blakley is recorded as informing the Registrar that he had taken leave without pay for three months and provided a letter from his employer which stated he had leave without pay approved from 25 June 2022 until 24 September 2022. Mr Blakley is also recorded as advising Services Australia that he would be resuming work on an income of $85,000 from 24 September 2022.

7. The objections officer noted that Mr Blakley’s bank account statements reflect that he received holiday wages of $761.20 on 5 July 2022, 20 July 2022 and 2 August 2022. Mr Blakley informed the Tribunal that these payments were unexpected payments related to an earlier period in time. In addition to the holiday pay received by Mr Blakley it is also clear that he advised Services Australia that he would be resuming work on an income of $85,000 from 24 September 2022. As noted above the income estimate covers the period through to 30 June 2023. An estimate of $0 for the period 12 July 2022 to 30 June 2023 was therefore clearly an incorrect estimate of his likely adjusted taxable income and his income was clearly likely to be higher than $0 at the time the estimate was given. As the Tribunal is satisfied that the estimate was less than Mr Blakley’s likely actual adjusted taxable income, at the time it was lodged, it follows that the estimate may be refused.

8. Mr Blakley submitted that he had no income at the time and only accepts that he should be assessed on his unexpected holiday pay. However, regardless of the subsequent emergence of holiday pay, the evidence about the resumption of his work in September 2022, (which he has subsequently done), was clearly before the Registrar when he lodged his original part year income estimate. In such circumstances the applicable legislation is clear and the Registrar may refuse to accept the income election. The objections officer’s decision is therefore the preferable and correct decision given the totality of the evidence before the Tribunal.

DECISION

The decision under review is affirmed.