Coney and Coney (Child support)

[2018] AATA 4598

Coney and Coney (Child support) [2018] AATA 4598 (9 November 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/BC014875

APPLICANT:  Mr Coney

OTHER PARTIES:  Child Support Registrar

Ms Coney

TRIBUNAL:Member S Letch

DECISION DATE:  09 November 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS
CHILD SUPPORT – particulars of the administrative assessment – estimate of income – election cannot be backdated – 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

1. Mr Coney and Ms Coney are the parents of [Child 1] and [Child 2]. Mr Coney has been assessed by the Child Support Agency (“CSA”) as liable to pay child support.

2. The Child Support (Assessment) Act 1989 (“the Act”) provides for an administrative assessment of the child support payable. It uses a formula which contains variables such as the parents’ adjusted taxable incomes. The Act also allows a parent to provide an estimate of their adjusted taxable income and, if accepted, the rate of child support payable is provisionally assessed on the basis of that estimate, subject to a reconciliation once the parent’s actual adjusted taxable income becomes known.

3. From 1 July 2018, in accordance with the formula assessment, Mr Coney’s liability for child support was calculated on the basis of his adjusted 2017/18 taxable income of $98,609. On 16 July 2018, Mr Coney made an election to estimate his adjusted taxable income for 2018/19 as $0 on the basis that he remained unemployed. The CSA accepted an estimate of $0 from the date of Mr Coney’s election on 16 July 2018.

4. On 24 July 2018, Mr Coney objected to the decision. He sought for the effect of his estimate to be back-dated to 1 July 2018.  On 30 July 2018, an objections officer disallowed Mr Coney’s objection.

5. On 23 August 2018, Mr Coney applied to this Tribunal for further review. The Tribunal conducted a hearing on 9 November 2018; Mr Coney participated by conference telephone. The Tribunal contacted Ms Coney at the scheduled hearing time; she advised she did not wish to participate in the hearing.

6. Section 60 of the Act allows for a parent to estimate their financial year adjusted taxable income for child support purposes. Mr Coney had earlier made an election to estimate his 2017/18 adjusted taxable income as $0. He conceded he had “made a mistake” in making his 2018/19 estimate election “late”, and considered a single letter from the CSA in May of 2018 advising about the option to make an estimate for 2018/19 was not sufficient notice to him, particularly given what he regards as the unfair consequences of being assessed to pay child support for the first half of July 2018 when he had no income. He also observes that the CSA was aware he was unemployed, and did not have any information suggesting his circumstances had changed.

7. Subsection 60(5) of the Act provides that the start date for an estimate election is the day that the estimate was made or the first day of a child support period, whichever is the latter. As a question of fact, it is not in dispute that Mr Coney first made his estimate election for the 2018/19 financial year on 16 July 2018. The application period commences on the start date for the estimate election and ceases at “the end of the last day of that year of income”. This means that the estimate made by Mr Coney on 16 July 2018 takes effect from 16 July 2018 to 30 June 2019.

8. In accordance with the Act, it is not possible for the estimate of income for 2018/19 to be backdated to 1 July 2018 or any other date. The Tribunal – and the CSA – has no discretion to substitute a different date.

9. The Tribunal advised Mr Coney during the hearing that it intended to affirm the CSA decision; the Tribunal understands Mr Coney finds the assessment deeply unsatisfactory. However, the Tribunal advised Mr Coney it is bound to apply the law as it is written.

10. The Tribunal advised Mr Coney of the option to bring an application to the CSA for a departure from the administrative formula (called a “change of assessment”) which, if the legislative criteria are satisfied, may potentially amend or replace the formula assessment for any period in the 18 months prior to an application being made. The Tribunal offers no view on whether any such application would succeed.    

11. As the Tribunal has reached the same conclusion as the objections officer, the decision under review will be affirmed.

DECISION

The decision under review is affirmed.