Cornell and Hakey (Child support)

[2020] AATA 1755

Cornell and Hakey (Child support) [2020] AATA 1755 (27 April 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC017905

APPLICANT:  Mr Cornell

OTHER PARTIES:  Child Support Registrar

Ms Hakey

TRIBUNAL:Member J Thomson

DECISION DATE:  27 April 2020

CATCHWORDS

CHILD SUPPORT – dismissal of application for review – departure determination – costs of contact – financial resources of receiving parent – application for review has no reasonable prospect of success - application for review dismissed

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.

DISMISSAL OF APPLICATION FOR REVIEW:

1. The Tribunal is satisfied that the application for review has no reasonable prospect of success and dismisses the application for review pursuant to subsection 42B(1) of the Administrative Appeals Tribunal Act 1975.

2. This matter concerns an application by Mr Cornell for review of an objection decision made by the Department of Human Services – Child Support (the Department) on 25 October 2019, disallowing Mr Cornell’s objection to a decision made by the Department on 2 September 2019, refusing his application for change of assessment on 20 May 2019 on the ground that no reason to change the assessment had been established.

3. Mr Cornell’s original application for change of assessment was based on two grounds:

   ·that the cost incurred to spend time with, or communicate with his children, [Child 1], born 2002, and [Child 2], born 2004 (the children) are at least 5% of his adjusted taxable income (ATI), and that those costs significantly affected the cost of maintaining the children. At the time of making his application on 20 May 2019 and at the time of hearing of his application to the Tribunal, the care percentages being assessed by the Department were 100% to Ms Hakey and 0% to Mr Cornell; and

   ·Ms Hakey’s income, property and financial resources were not accurately reflected in the administrative assessment, making it unfair.

4. At the Tribunal hearing, Mr Cornell gave affirmed evidence that he had incurred costs in the form of domestic and international airfares to fly the children from [City 1], where they reside with Ms Hakey, to [City 2], where Ms Hakey’s mother collected them and drove them to Mr Cornell’s mother’s residence [in City 3] where they boarded an international flight to [City 4], [Country 1], to spend approximately three weeks of the Christmas holidays in December 2018, and again, in December 2019, with Mr Cornell.

5. Mr Cornell asserted in his evidence that he transferred $500 to Ms Hakey’s bank account by way of his contribution to the cost of the domestic airfares for the children to fly from [City 1] to [City 2], and that he paid for the cost of flying the children and his mother to [Country 1].

6. Mr Cornell was unable to provide any evidence of the costs he said he incurred to fly the children from [City 1] to [City 2] and on to [Country 1] to spend time with him for the December 2018 Christmas holidays. He asserted he transferred an amount of $500 to Ms Hakey’s account by way of his contribution to the cost of the domestic airfares for the children from [City 1] to [City 2]. However, he was unable to provide evidence of the costs he said he incurred for the airfares from [City 3] to [City 4], [Country 1], for the 2019 December holidays.

7. Ms Hakey gave evidence that amounts of $500 were paid to her bank account by way of contribution to the children’s or domestic airfares from [City 1] to [City 2] for both the 2018 and 2019 December Christmas holidays the children spent with Mr Cornell in [Country 1], but she asserted that these funds were transferred by Mr Cornell’s mother, [Ms A], from her bank account, and that the cost of the airfares from [City 3] to [Country 1] had also been paid by Mr Cornell’s mother, [Ms A].

8. In support of her evidence, Ms Hakey referred to a [travel agency] tax invoice dated 24 September 2019 at page 216 of papers provided by the Department to the Tribunal for the hearing, reflecting the costs of the [Airline 1] airfares from [City 3] to [City 4], [Country 1], costs upon which Mr Cornell had relied in his evidence that he had incurred. Ms Hakey gave evidence that the Visa credit card number 4453 appearing at the foot of the invoice, recording the method of payment of the airfares totalling $2,337.68, was [Ms A]’s credit card.

9. Mr Cornell acknowledged that his mother, [Ms A], had transferred the $500 contributions to the domestic airfares for the children’s flights from [City 1] to [City 2] to Ms Hakey’s bank account for the 2018 and 2019 December holiday periods the children spent with him in [Country 1], and that the Visa credit card number 4453 upon which the [Airline 1] [City 3] to [City 4] airfares totalling $2,337.68 had been paid was, in fact, [Ms A]’s credit card.

10.  Mr Cornell subsequently changed his evidence, asserting that his mother had agreed to lend him the costs of the airfares to facilitate the children spending the December 2018 and 2019 Christmas holidays with him in [Country 1] and that he was repaying that debt sporadically. However, he acknowledged in evidence that he had only repaid between $400 and $500, and had ceased making further repayments because he could no longer afford to continue doing so.

11.  Following discussion with the Tribunal, Mr Cornell conceded that any costs he may have incurred in flying the children to [Country 1] for the December 2018 and 2019 Christmas holidays did not exceed 5% of his 2018/19 estimated ATI reflected in the assessment for the period 28 May 2019 to 30 June 2019 at $46,667 and his 2018/19 estimated ATI of $51,047 for the period 29 March 2019 to 27 May 2019, and that consequently he had no prospects of succeeding in his application for a change of assessment on that ground.

12.  Mr Cornell did not challenge Ms Hakey’s income used in the assessment. His case at the hearing was directed towards the income, property and financial resources of her partner, [Mr B]. Mr Cornell asserted that, as [Mr B]’s wife, Ms Hakey had a proprietary interest in two [City 1] properties owned by [Mr B], and that she derived a financial benefit from one of those properties. Copies of title searches with respect to these properties were before the Tribunal as part of the Department’s documentation. These searches clearly reflected [Mr B] as the sole registered proprietor of those properties.

13.  Ms Hakey gave evidence that both properties were owned by [Mr B], one of which was the family home in which she and [Mr B] and the children reside, and the other was an investment property. She denied having any proprietorial or financial interest in either of these properties.

14.  In response to questioning by the Tribunal, Ms Hakey gave evidence that her sole source of income is derived from her employment as a [Occupation 1] with [Employer 1]. In the Statement of Financial Circumstances (SOFC) she provided, she reflects her gross average weekly income from that source at $1,032, annualised to $53,664. She lists no real property, modest bank savings, a [Year] [Manufacturer] [Model] motor vehicle valued at $25,000, and household contents valued at $8,000. The Tribunal is satisfied Ms Hakey has no beneficial interest in [Mr B]’s properties and that her income, property and financial resources are accurately reflected in her SOFC as set out above. Her income for the 2019/20 financial year will be reflected in the administrative assessment when she lodges her tax return for that financial year in due course.

15. As Mr Cornell has failed to establish any ground for departure from the administrative assessment of child support, the Tribunal considers his application for review has no prospects of success, and dismisses his application pursuant to subsection 42B(1) of the Administrative Appeals Tribunal Act 1975.