Colenzo and Colenzo (Child support)

[2022] AATA 3963

Colenzo and Colenzo (Child support) [2022] AATA 3963 (29 September 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2022/BC024056 & 2022/BC024057

APPLICANT:  Ms Colenzo

OTHER PARTIES:  Child Support Registrar

Mr Colenzo

TRIBUNAL:Senior Member K Dordevic, Presiding

Deputy President K Synon

DECISION DATE:  29 September 2022

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – whether a minimum annual rate to nil should apply – the application for minimum annual rate to nil should be refused – 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.

1. The decision of the tribunal and the reasons for the decision were delivered orally on 29 September 2022.

2. The tribunal sets aside the decisions under review and substitutes a new decision that Mr Colenzo's applications to have his child support liability reduced from the minimum annual rate to nil for the periods 18 June to 2 November 2020 and 24 February to 28 August 2022 are refused.

Reasons for decision

1. Relevant to this application, Ms Colenzo (the mother) and Mr Colenzo (the father) are the parents of one child. There has been a child support assessment registered with Services Australia - Child Support (the Agency) in place since 27 February 2019. The child is in the mother’s sole care and the father is the parent liable to pay child support.

2. On 14 March 2022 the father lodged an application for the minimum annual rate of child support not to apply for the periods 18 June to 2 November 2020 (the 2020 period) and 24 February to 28 August 2022 (the 2022 period). The Agency accepted his applications on the same day, thereby reducing his child support liability from the minimum annual rate to nil.

3. The mother objected to these decisions on 14 April 2022. On 1 June 2022 her objections were disallowed.

4. On 9 June 2022 the mother lodged an application for review of the objections officer’s decisions to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal).

5. The tribunal heard and determined the application on 29 September 2022. The mother and father attended the hearing by MS Teams audio. In reaching its decision, the tribunal took into account the documents provided by the Agency (folios 1 to 115 in respect of the 2020 period and folios 1 to 72 in respect of the 2022 period).

6. The legislation relevant to this decision is contained in the Child Support (Assessment) Act 1989 (the Act). 

7. The issues to be determined by this tribunal are:

   • whether the father’s income is below the assessed rate of child support payable for the periods nominated; and if so
   • whether the discretion to reduce the rate of child support payable by the father to nil be exercised in his favour.

10.  Section 66 of the Act provides that a specified minimum rate of child support will apply where the application of the formula results in an annual rate payable that is less than the specified minimum annual rate. The rate applies only where the parent liable to pay child support does not have at least regular care of the child in the child support assessment, as is the case in this matter.

11.  The tribunal finds that on 14 March 2022 the father applied to have the annual rate reduced to nil for the 2020 and 2022 periods.  

12.  It is not in dispute that the father was incarcerated from 18 June to 2 November 2020 and was incarcerated on 30 December 2021 and remains in jail.

13.  Subsection 66A(1) of the Act provides a discretion for the Agency (acting for the Child Support Registrar) to reduce the minimum annual rate to nil on application by the person liable to pay child support.

14.  Subsections 66A(2), (3) and (3A) provide that the discretion to reduce the annual rate to nil applies only if the person’s income is below a specified level. Subsection 66A(4) of the Act states the following in relation to the definition of income:

"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

…

15.  The effect of those provisions in this case is that the discretion to grant the application is not available unless the tribunal, standing in the place of the Child Support Registrar, is satisfied that the father’s income for the 2020 and 2022 periods is less than the annual rate, noting that the term ‘income’ in subsection 66A(4) of the Act is broader than income for the purposes of determining a child support liability.

16.  Regulation 13 of the Child Support (Assessment) Regulations 2018 relevantly states:

13 Prescribed payments

…

(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:

(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

…

17.  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.

18.  The father’s evidence can be summarised as follows. He is in receipt of an amenity allowance of about $15 per week, which he can use for such purposes as contacting family members. The tribunal notes that the amenity allowance of $15 per week does not fall under subsection 66A(4) of the Act, because it is exempt from being income by virtue of regulation 13. The father also works in the [prison] and receives $20 per week for this work, which is available for him to use. This is paid directly into his account each week. The father was adamant that he would be able to meet the weekly rate of the minimum annual rate of under $9 per week for the benefit of the child from these funds. He states that this would not present a hardship to him; in fact, he thought this amount was “awfully low”.

19.  The tribunal is satisfied that the monies received or deposited into the father’s account by way of his [work] are not exempt and are in excess of $443 for the 2020 period and $446 for the 2022 period. Thus, his income is not below the specified level outlined in section 66A of the Act.

20.  Therefore, section 66A of the Act precludes the tribunal from considering whether or not the discretion to reduce the rate of child support payable by the father to nil should be exercised in this case.

DECISION

21.  The tribunal sets aside the decisions under review and substitutes a new decision that Mr Colenzo's applications to have his child support liability reduced from the minimum annual rate to nil for the periods 18 June to 2 November 2020 and 24 February to 28 August 2022 are refused.