Carleo and Leamer (Child support)

Carleo and Leamer (Child support) [2020] AATA 1762 (31 March 2020)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2020/BC018223
APPLICANT:  Mr Carleo
OTHER PARTIES:  Ms Leamer
Child Support Registrar

TRIBUNAL:Member P Jensen
DECISION DATE: 31 March 2020
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 – income exceeds the allowable limit – 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 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

Introduction

Mr Carleo and Ms Leamer are the parents of two children. In 2016 a child support case was registered with what was then called the Department of Human Services - Child Support (“the CSA”).
On 14 January 2020, Mr Carleo applied to the Tribunal for review of an objections officer’s decision dated 18 December 2019. I conducted a hearing on 31 March 2020. Mr Carleo and Ms Leamer gave sworn evidence by conference phone.
There are a number of issues that need to be considered before turning to what was, for Mr Carleo and Ms Leamer, the central issue.
The Child Support (Assessment) Act 1989 (“the Act”) provides for an administrative assessment of child support payable. It uses a formula which contains variables such as the parents’ adjusted taxable incomes and their percentages of care of the children. If a parent’s adjusted taxable income is below a certain amount and they are providing less than a certain percentage of care to their children, they will be required to pay what is called the minimum annual rate of child support payable. However, if the requirements of subsection 65A(1) of the Act are satisfied, they are required to pay what is commonly referred to as the fixed annual rate of child support payable. The fixed annual rate is higher than the minimum annual rate. A parent can apply pursuant to section 65B of the Act to not be required to pay the fixed annual rate.

The application for the fixed annual rate to not apply from 1 October 2017

A new child support period commenced on 1 October 2017, and from that date, Mr Carleo was required to pay the fixed annual rate. He applied to not be required to pay the fixed annual rate from 1 October 2017. The CSA refused his application. He objected to that decision. Importantly, on 4 January 2019, an objections officer allowed his objection and decided that he was not required to pay the fixed annual rate from 7 November 2018.
Ms Leamer and Mr Carleo both applied for review of that decision and on 11 April 2019 this Tribunal, differently constituted, decided to refuse Mr Carleo’s application to not be required to pay the fixed annual rate from 1 October 2017.

The deemed application for the fixed annual rate to not apply from 1 December 2018

A new child support period commenced on 1 December 2018. Paragraph 65B(1)(b) of the Act provides that if certain requirements are satisfied, “the parent is taken to have applied to the Registrar” to not be required to pay the fixed annual rate. When the objections officer decided on 4 January 2019 that Mr Carleo was not required to pay the fixed annual rate from 7 November 2018, the requirements of paragraph 65B(1)(b) were satisfied in respect of the new child support period that commenced on 1 December 2018, and Mr Carleo was deemed to have applied to not be required to pay the fixed annual rate from 1 December 2018. On 4 January 2019 the CSA decided to grant Mr Carleo’s deemed application to not be required to pay the fixed annual rate from 1 December 2018 (“the original decision”). On 4 January 2019 the CSA wrote to Ms Leamer. The CSA apparently intended to notify her of the original decision. However, the letter only informed her that the CSA had accepted Mr Carleo’s application to no longer be required to pay the fixed annual rate: see page 38 of the hearing papers. The letter did not refer to the fact that Mr Carleo had made two such application in respect of different periods. The letter did not state which application or applications had been granted. The letter did not specify the date from which Mr Carleo was not required to pay the fixed annual rate. The accompanying assessment notices dated 4 January 2019 simply indicated that Mr Carleo was required to pay the minimum annual rate from 7 November 2018 to 29 February 2020. They did not disclose Mr Carleo’s rates of child support payable before or after that period. They were consistent with the wording of the objections officer’s decision, which was also made on 4 January 2019, that “We [sic] have made the decision to accept Mr Carleo’s application for the fixed annual rate not to apply from 7 November 2018.” Ms Leamer was only ever told, in general terms, of the combined effect of the objections officer’s decision and the original decision; she was not specifically notified of the original decision dated 4 January 2019 whereby Mr Carleo was not required to pay the fixed annual rate from 1 December 2018. To object to the original decision within time, Ms Leamer needed to do so within 28 days of being notified of the original decision: section 81 of the Child Support (Registration and Collection) Act 1988. However, she was not notified of the original decision, and so the 28-day period never commenced.

The incorrect implementation of the Tribunal’s decision

As noted earlier, this Tribunal decided on 11 April 2019 to refuse Mr Carleo’s application to not be required to pay the fixed annual rate from 1 October 2017. That decision should have resulted in Mr Carleo being required to pay the fixed annual rate from 1 October 2017 (being the start of the relevant child support period) to 30 November 2018 (being the end of that child support period), and he should have been required to pay the minimum annual rate from 1 December 2018 (being the start of the next relevant child support period) pursuant to the original decision dated 4 January 2019 that was made in respect of Mr Carleo’s deemed application.
However, on 1 May 2019, the CSA varied the particulars of the administrative assessment so that Mr Carleo was required to pay the fixed annual rate from 1 December 2018 to 29 February 2020, and it issued assessment notices to that effect.

Further confusion

On 20 May 2019, Mr Carleo applied to not be required to pay the fixed annual rate. The CSA immediately granted his application, with effect from 20 May 2019, and issued notices to that effect. Mr Carleo promptly objected to that decision, stating that the decision should have been given retrospective effect.
On 7 June 2019 the CSA decided to correct the error that it made on 1 May 2019. It changed the particulars of the administrative assessment to reflect the original decision dated 4 January 2019 to not require Mr Carleo to pay the fixed annual rate from 1 December 2018.
On 10 June 2019, Ms Leamer objected to “the decision dated 20 May 2019”. On 18 June 2019, Ms Leamer objected to “the letter dated 7 June 2019 to accept Mr Carleo’s request to have the … fixed annual rate not apply from the 1 December 2018.”

The objections officer’s decision dated 18 December 2019, which is the decision under review in the current proceedings

An objections officer stated on 18 December 2019 that he or she — the name of the objections officer has not been disclosed — was reviewing a decision dated 20 May 2019. However, it is clear from the reasons for the objections officer’s decision that he or she was in fact reviewing the original decision dated 4 January 2019. In the ordinary course, Ms Leamer would have been notified of the original decision shortly after it was made, and her objection dated 18 June 2019 would have been out of time. However, she was not notified of the original decision, and her objection was within time.

The substantive issue

Mr Carleo’s deemed application dated 4 January 2019 to not be required to pay the fixed annual rate from 1 December 2018 was made pursuant to section 65B of the Act. Subsection 65B(1) states when such an application can be made, or is deemed to have been made. Subsection 65B(2) states:
The parent making the application must provide evidence to the Registrar concerning the parent's income (within the meaning of subsection 66A(4)) to demonstrate that his or her current income is:
(a)less than the pension PP (single) maximum basic amount; and

(b)that it would be unjust and inequitable to expect him or her to pay the amount assessed under this section.

In November 2018, Mr Carleo was granted newstart allowance. He was paid $530.74 per fortnight, which equates to $13,837 per annum. At the hearing he stated, and I accept, that in and around December 2018 he had approximately $30,000 in savings and approximately $70,000 in shares, which collectively provided him with an additional income of approximately $3,500 per annum. $13,837 + $3,500 = $17,337 per annum, which was less than the “pension PP (single) maximum basic amount” at the time, which was $19,568 per annum: see generally 2.4.2 of the Child Support Guide.
However, on 20 December 2018, Mr Carleo received $5,000 from an anonymous source via a [website]. At the hearing, Mr Carleo explained that a potential recipient such as himself can set up a profile on the website, and potential donors can view the profile and give an anonymous gift. He said the website recommends that gifts be given with a value of approximately $20 to $50, and in other years he received gifts that were worth approximately $20. He said he still does not know who gave him the $5,000 in December 2018, and he does not expect to receive a similar gift in the future. He said there were no conditions attached to the gift.
The term “income” for the purposes of subsection 65B(2) is defined in section 66A(4) of the Act:
"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.
The gift of $5,000 was “money … received by the parent for his … own use or benefit”, and it did not fall within any of the excluded categories prescribed by the relevant regulation, which is regulation 13 of the Child Support (Assessment) Regulations 2018.[1] Once regard is had to that additional income, Mr Carleo’s income exceeded the pension PP (single) maximum basic amount, and the requirements of section 65B were not satisfied. The objections officer’s decision to refuse Mr Carleo’s deemed application pursuant to section 65B was correct.
[1]The regulation can be viewed at align="left">The decision under review is affirmed.

[2020] AATA 1762

31 March 2020

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Judicial Review

Statutory Construction

Procedural Fairness