Boulding and Wrinch (Child support)

[2021] AATA 5281

Boulding and Wrinch (Child support) [2021] AATA 5281 (10 November 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2021/MC022083

APPLICANT:  Mr Boulding

OTHER PARTIES:  Ms Wrinch

Child Support Registrar

TRIBUNAL:  Member S Cullimore

DECISION DATE:  10 November 2021

DECISION:

The Tribunal sets aside the decision under review and substitutes a new decision that Mr Boulding’s child support liability be reduced from the Minimum Annual Rate to nil for the child support period from 13 April 2021 to 3 July 2022.

This means that his application for review is successful.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – whether child support liability should be reduced from Minimum Annual Rate to nil – prison allowance exempt from being income – 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 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. The following background information is taken from the records of Services Australia – Child Support (“the CSA”) and is not in dispute, and the Tribunal finds each matter as fact.

2. Mr Boulding and Ms Wrinch are the parents of one child, now aged 17.

3. The child support case started on 20 January 2005 and has been Registrar Collect since that date.[1]

   [1] C109.

4. On 25 March 2021 Mr Boulding applied to have his child support liability reduced from the Minimum Annual Rate (“the MAR”) to nil for the child support period from 13 April 2021 to 3 July 2022.

5. On the same day a delegate refused that application.

6. On 26 May 2021 Mr Boulding objected to that decision.

7. His objection was out of time and he was granted an extension of time to object (this was on 8 June 2021).[2]

   [2] C74.

8. On 22 July 2021 an objections officer disallowed his objection.

9. On 14 August 2021 Mr Boulding sought further review by this Tribunal of the objection decision.

10.The Tribunal today gave its decision in another, but unrelated, matter concerning Mr Boulding’s past child support assessments (this is review 2021/MC022090).

DOCUMENTARY EVIDENCE AND HEARING

11.The Tribunal had before it the original bundle of documents provided by the CSA (168 pages).

1. Mr Boulding was represented by [Ms A] from Victorian Legal Aid.

2. [Ms A] attended the hearing on his behalf on 10 November 2021 via teleconference and made verbal submissions.

3. The Tribunal also spoke to Mr Boulding about his prison allowances (see below).

4. Before and after the hearing [Ms A] also provided various written submissions and some further documents. These were marked A1 onwards.

5. Ms Wrinch chose not to take part in these proceedings.

ISSUE

17.The principal issue to be decided by the Tribunal can be summed up as:

·     What is the “income” of Mr Boulding for child support purposes for the current child support period?

CONSIDERATION

The relevant child support law

1. The relevant law is contained in section 66 onwards of the Child Support (Assessment) Act 1988 (“the Act”) and in Regulation 13 of the Child Support (Assessment) Regulations 2018.

2. The relevant provisions of the Act state as follows (my emphasis):

   66Minimum annual rate of child support

   Assessment of annual rate

   (1)The Registrar must assess the total of the annual rates of child support payable by a parent for all the children in a child support case for a day in a child support period as the minimum annual rate of child support for the child support period if:

   (a)the parent does not have at least regular care of at least one of the children in the child support case for the day; and

   (b)the total payable by the parent for all the children in the child support case would (apart from this section) be assessed as less than the minimum annual rate of child support for the child support period.

   …..

   When assessment applies

   (4)An assessment in respect of a parent covered by paragraph (1)(b) applies to each day in the period:

   (a)beginning on the first day in the child support period on which the total payable by the parent in respect of the child support case would (apart from this section) be assessed as less than the minimum annual rate of child support for the child support period; and

   (b)ending:

   (i)if the parent would be so assessed until the end of the child support period—at the end of the child support period; or

   (ii)otherwise—28 days after the day on which the person would cease to be so assessed (even if that day is after the end of the child support period).

………

66ARegistrar may reduce an assessment to nil in certain cases

(1)If the Registrar has made an assessment under section 66 in respect of the annual rate of child support payable by a parent for all the children in a child support case for a day in a child support period, the Registrar may, on an application made by the parent…reduce the annual rate of child support payable by the parent …. to nil. ….

……

(4)In this section:

income, in relation to a person, means:

(a)any money earned, derived or received by the parent for his or her own use or benefit, other than money earned, derived or received in a manner, or from a source, prescribed by the regulations for the purposes of this paragraph; or

(b)a periodical payment by way of a gift or allowance, other than a payment of a kind prescribed by the regulations for the purposes of this paragraph.

1. The amount of the parent’s “income” as defined must be less than the MAR ($446pa). This is provided for subsections 66A(2), (3) and (3A).

2. Regulation 13 relevantly states:

   13Prescribed payments

   (1)For the purposes of paragraph (a) of the definition of income in subsection 66A(4) of the Act, money received by a person as an NDIS amount is prescribed.

   (2)For the purposes of paragraph (b) of the definition of income in subsection 66A(4) of the Act, the following kinds of payments paid to a person are prescribed:

   (a)….

   (b)payments, in the nature of an amenity allowance or gratuity, authorised by the Governor of a prison, paid to the person if he or she is serving a term of imprisonment in the prison, to the extent that the payment is not for:

   (i)work done by the person inside or outside the prison; or

   (ii)approved study undertaken by the person inside or outside the prison; or

   (iii)participation by the person in any other program approved by the Governor;

   ….

1. The Tribunal notes that the above provisions, regarding what is and is not the “income” of prisoners, are very convoluted, and the intention could have been much more clearly expressed.

2. The Child Support Guide at paragraph 2.5.4 states that payments for prisoners are excluded if they are “amenity allowances or gratuities (incidental payments for personal items or other personal items or minor expenses)” but payments for “work, study or participation in approved programs” are not excluded. That is, they are income for this purpose.

3. The Guide represents CSA internal policy and its major purpose is to assist CSA decision makers make consistent decisions. The terms of the Guide do not bind the Tribunal, whose primary task is to interpret the relevant law, however, on careful analysis, the Tribunal accepts that the Guide in this case probably does accurately reflect the law, and so the Tribunal will apply the Guide, as best it can.

DISCUSSION OF EVIDENCE, CONCLUSIONS AND REASONING

1. The Tribunal has carefully considered the relevant facts, the wording of the relevant provisions, and the submissions which were ably and thoroughly put to it by [Ms A], both in writing and verbally.

2. The Tribunal finds each of these additional matters as a fact:

   ·     Mr Boulding has no care of the child concerned;

   ·     He is currently serving a sentence of imprisonment;

   ·     He receives a total of $38.75 per week in “prison amenity allowances”;

   ·     Corrections Victoria automatically set aside a percentage of this allowance (almost exactly a third) to provide to him as a “lump sum” upon his release;

   ·     This is $12.75 per week;

   ·     This will be paid to him in cash or by cheque on his release;

   ·     The balance of $26.00 per week he uses to pay for personal items such as noodles, coffee, shampoo, body wash and biscuits;

   ·     This amount is not paid in cash: it is credited to a form of “identity card” which has his photo and his unique prison number;

   ·     He uses the card to make purchases (like one would use a debit card) and the amount of the purchases is taken off the balance;

   ·     The $38.75 per week is “paid” to him in return for basic chores including emptying bins, washing benches and mopping floors.

3. The Tribunal is satisfied that the $26.00pw payments are not “money earned derived or received”, and so do not fall under paragraph 66(4)(a) of the Act, because they are not “money”. However, the $12.75pw payments held back by Corrections Victoria could be considered to be “money” - but it would not be “received” until his release.

4. The $26.00pw payments probably are “periodical payments by way of allowance” within the meaning of paragraph 66(4)(b) of the Act.

5. In any event, the Tribunal has concluded that all of these payments are “exempted” from being income by virtue of Regulation 13.

6. There is no dispute that these payments are not for “approved study” or “participation in any other program approved by the prison Governor”, nor are they (in the Tribunal’s view) for “work done inside or outside the prison” in the sense that expression is used in Regulation 13(2)(b), above.

7. In the Tribunal’s view, “work done” in this context means actual work, something of real economic value, work that could be performed by people who are not prisoners, such as working on a farm, or manufacturing items for public use or sale, or being “hired out” to work for an employer, this work being done for a fixed hourly rate or similar remuneration.

8. The expression in this context does not cover the kind of routine, daily tasks undertaken by Mr Boulding, which are more in the nature of normal day to day prison activities, or duties, and are concerned with simply maintaining the prison, maintaining order in the prison, and keeping the prisoners usefully occupied. The point of the activities in other words is the management of the prison itself, not the sale of the labour of the prisoners.

9. Mr Boulding’s income is therefore nil, for this purpose, and it follows that the legally correct decision is that his application under section 66A of the Act should be granted.

DECISION:

The Tribunal sets aside the decision under review and substitutes a new decision that Mr Boulding’s child support liability be reduced from the Minimum Annual Rate to nil for the child support period from 13 April 2021 to 3 July 2022.

This means that his application for review is successful.