Eakins and Berker (Child support)

[2022] AATA 1171

Eakins and Berker (Child support) [2022] AATA 1171 (14 February 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/MC022086

APPLICANT:  Mr Eakins

OTHER PARTIES:  Child Support Registrar

Ms Berker

TRIBUNAL:Member S Letch

DECISION DATE:  14 February 2022

DECISION:

The decision under review is set aside and the matter is sent back to the Child Support Registrar for reconsideration in accordance with the direction that Mr Eakins’ child support liability be recalculated in accordance with paragraphs 10 and 11 of these reasons.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – estimate reconciliation – whether estimate reconciliation done correctly – decision set aside and sent back with direction to reconcile estimates of income

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 Eakins and Ms Berker are the parents of [Child 1], born October 2005. Mr Eakins has been assessed by the Child Support Agency (CSA) as liable to pay child support. This matter concerns an “estimate reconciliation” for the 2014/15 financial year.

2. It is convenient by way of background to set out some extracts from the objections officer decision dated 26 July 2021:

   1.
   Mr Eakins and Ms Berker have had a registered child support assessment for [Child 1] since 29 January 2009.
   2.
   On 4 March 2014, Mr Eakins advised of a change in circumstances and we accepted an estimate for financial year 2014/2015 of $44,060.00 for the period 1 July 2014 to 30 June 2015.
   3.
   On 22 December 2014, Mr Eakins lodged a subsequent estimate, reporting a nil income for the period 22 December 2014 to 30 June 2015.
   4.
   On 25 May 2015, we received Mr Eakins's New Zealand taxable income for 2014/2015 and it was converted to AUD $46,340.00.
   5.
   On 30 April 2021, we reconciled Mr Eakins's 2014/2015 estimate. As the estimate was inaccurate, an estimate penalty of $53.00 was applied to his account.
   6.
   On 21 May 2021, Mr Eakins objected to this decision. Mr Eakins stated that the reconciliation for financial year 2014/2015 was incorrect and the estimate had already been reconciled. We advised that he had lodged a subsequent estimate on 22 December 2014.
   7.
   On 8 June 2021, Mr Eakins called and we advised that the $78.00 penalty that was remitted in the letter dated 19 December 2019 was caused by his estimate for  2013/2014 (25 February 2014 to 30 June 2014 estimate period). The letter records the period being 25 February 2014 to 30 June 2015. This was a typing error and should have read 30 June 2014. The penalty of $53.00 is from the reconciliation of his 2014/2015 estimate as this estimate was for the full financial year. On that same day, we remitted the $53.00 estimate penalty.
   8.

   On 8 June 2021, we received a response from Ms Berker to Mr Eakins`s objection. Ms Berker stated that she had not seen or spoken to Mr Eakins in over 14 years.

   Evidence

   On 10 June 2021, Mr Eakins submitted income information relating to the 2014/2015 year. Mr Eakins advised that as of 14 December 2014 to April 2015, he had no income. Mr Eakins commenced receiving benefits totalling NZ$2,640.71.00. Mr Eakins states that the actual income for estimated period 22/12/2014 – 30/06/2015 was NZ$2,433.46.

   Other relevant facts:

   Income conversion for estimate

   Country of Original Income: New Zealand
   Notification Date: 04/03/2014

   Event date: 04/03/2014

   Start Date of child support period: 1 August 2013

   Estimate lodged for the period of 1 July 2014 to 30 June 2015

   Information from Inland Revenue

   2 July $118.00
   5 August $5,170.00
   6 September $838.00
   6 October $105.00
   6 November $572.00
   6 December $323.00
   1 Apr $1,072.26
   May $939.12
   June $939.12

   = $36,076.50

   Estimate income in New Zealand currency $36,077.00

   Exchange rate for 2012/2013 (Last Relevant Year of Income for this child support period) 0.7685

   Converted estimate income in AUD $27,725.00

   REASONS FOR THE DECISION

   After the end of the year of income, the Registrar (Services Australia) will compare the parent's estimated income with their actual income for the year. If the actual income is less than or equal to the estimated income, the records will be noted to show that no further action is required. If the parent's actual income is more than their estimated income, the assessment will be amended using their actual income, using the provisions of Division 7A of Part 5 of the Act.

   Although Ms Berker responded to the objection, she had no information regarding Mr Eakins`s income. On 30 April 2021, we received Mr Eakins`s 2014/2015 income information from New Zealand Inland Revenue of $36,076.50 converted to AUD $27,725.00.

   From 1 July 2014 to 21 December 2014, Mr Eakins reported that his estimate of income was $44,060.00 (annualised) in the 174 day estimate period. On 22 December 2014, Mr Eakins lodged a subsequent estimate of $0.00 and this applied from the date of notification to 30 June 2015 (191 days). Total estimated income including year to date income was $21,003.54.

   When an estimate period ends, we check the estimate by comparing the estimated amount to the actual amount received during the period. The estimate reconciliation applies for the whole financial year of 2014/2015. It was found that Mr Eakins`s estimate was inaccurate and the total difference between the estimate and reconciliation was $6,721.46.

   $27,725.00 - $21,003.54 = $6,721.46

   This resulted in an estimate penalty of $53.00 being applied to Mr Eakins`s account. On 8 June 2021, we remitted the penalty. Based on the information received from New Zealand Inland Revenue, we are satisfied that the estimate reconciliation was performed correctly.

   The objection is disallowed.

3. Mr Eakins applied for further review by the Tribunal on 12 August 2021. Mr Eakins participated in the Tribunal’s hearing by conference telephone; Ms Berker did not answer the Tribunal’s telephone calls at, and around, the time of the scheduled hearing. In making its decision, the Tribunal took into account the CSA materials, and the additional materials submitted by Mr Eakins (number A1 to A59).

4. Mr Eakins’ position is summarised in his written application to the Tribunal:

   Reason for Application: On the 30 April 2021 my child support assessment for the period 2014-2015 was updated. My "Actual income for period 22/12/2014-30/06/2015 191days was assessed as A$3518.12" which is incorrect. I made an objection and on the 9 June 2021 supplied my actual income for this period to International Child Support Australia which was as follows;

   As of 14 December 2014 to April 2015 i was unemployed and had no income. I started receiving a work and income benefit [as] follows;

   17 April 2015 NZ$706.55 of which NZ$167.14 was a housing supplement
   23 April 2015 NZ$275.13 of which NZ$65.00 was a housing supplement
   30 April 2015 NZ$275.13 of which NZ$65.00 was a housing supplement
   7 May 2015 NZ$275.13 of which NZ$65.00 was a housing supplement
   14 May 2015 NZ$275.13 of which NZ$65.00 was a housing supplement
   21 May 2015 NZ$275.13 of which NZ$65.00 was a housing supplement
   28 May 2015 NZ$275.13 of which NZ$65.00 was a housing supplement

   4 June 2015 NZ$275.13 of which NZ$65.00 was a housing supplement

   11 June 2015 NZ$275.13 of which NZ$65.00 was a housing supplement
   18 June 2015 NZ$275.13 of which NZ$65.00 was a housing supplement
   25 June 2015 NZ$275.13 of which NZ$65.00 was a housing supplement

Total=NZ$2640.71

Child Support Payments made over this period;
7 February 2015 NZ$30
17 February 2015 NZ$30
14 March 2015 NZ$35.45
25 March 2015 NZ$5.45
25 March 2015 NZ$35.45
2 April 2015 NZ$35.45
14 May 2015 NZ$35.45
16 June 2015 NZ$35.45

Total=NZ$207.25

Actual income for the period 22/12/2014 - 30/06/2015 was NZ$2433.46 which can be confirmed with the Inland Revenue of New Zealand.

On the 11 Aug 2021 i received notice my objection was disallowed and i could apply to the ATT within 90 days if i though it was wrong which i am now doing. You will note the actual income is directly related to the annualized income.

Whatever exchange rate is used an actual income of NZ$2640.71 is not equal to the assessed actual income of A$3518.12 for the period 12/12/2014-30/6/2015 and this is what I request be reviewed.

1. Mr Eakins told the Tribunal there are extenuating circumstances in his case. He raised a number of matters not directly relevant to the limited “estimate reconciliation” decision before the Tribunal. Amongst other things, he raised human rights issues, and a number of recovery issues (including penalties, which the Tribunal understood have since been revoked). He pointed to a number of service issues with Services Australia and other government departments. Mr Eakins also pointed to a number of inconsistencies in various figures cited in the CSA materials, raising concerns about the reliability of CSA calculations.[1] He also raised the [a] scheme (which the Tribunal observes pertains to unrelated Centrelink matters) as an example of poor practices by Services Australia.  

   [1] For example, the objection decision, on the second last page, cites a figure of $6,721.46; in the assessment letters he has received, that sum is cited as $6,723.10 (see, for example, folio 70 of the CSA materials). Mr Eakins also observed that the objections officer sets out his purported income from “Inland Revenue” for April, May and June 2015 in three sums totalling some NZ$2,950; however, the assessment letter dated 30 April 2021 records his total income as AU$3,518.12 (see folio 70).

2. Mr Eakins drew attention to the CSA letter of 22 October 2021 (folio 161 of the CSA materials) pointing to a “typographical error” in the original objection decision which according to the CSA did not alter the ultimate decision. Mr Eakins told the Tribunal he has a recording of a telephone call with a CSA officer who conceded Mr Eakins had made a contact with CSA on 19 April 2015 (which it appears to the Tribunal the CSA conceded, and concedes that it had given Mr Eakins incorrect information, effectively depriving him of the opportunity to make a further estimate election). 

3. Returning to the limited question before the Tribunal in this review, at its core, this matter involves a factual dispute about the income Mr Eakins received for the period 22 December 2014 to 30 June 2015. The objections officer summarises the purported income Mr Eakins received from Inland Revenue in New Zealand. The CSA papers do not reveal source documentation for that information; there is no official correspondence from Inland Revenue providing particulars of the type of payment, the dates payments were made, and for what periods such payments were referable to.

4. The Tribunal found Mr Eakins’ evidence reliable. He is clearly meticulous in his record-keeping, and has been understandably frustrated by the administrative processes in his attempts to satisfactorily resolve his dispute.

5. The Tribunal observes that, pursuant to its objectives set out in section 2A of the Administrative Appeals Tribunal Act 1975, it is obliged to conduct a proportional review that is fair, informal, and quick.

6. In the absence of detailed and particularised evidence in the CSA papers, the Tribunal prefers Mr Eakins’ evidence about the amounts he received in New Zealand during the relevant period. The Tribunal finds he was unemployed from 14 December 2014 and was deriving no income; the Tribunal finds he received the sums he has consistently set out in correspondence to the CSA and in his written application to the Tribunal (set out again hereunder) for the period 22 December 2014 to 30 June 2015:

   17 April 2015 NZ$706.55 of which NZ$167.14 was a housing supplement

   23 April 2015 NZ$275.13 of which NZ$65.00 was a housing supplement
   30 April 2015 NZ$275.13 of which NZ$65.00 was a housing supplement
   7 May 2015 NZ$275.13 of which NZ$65.00 was a housing supplement
   14 May 2015 NZ$275.13 of which NZ$65.00 was a housing supplement
   21 May 2015 NZ$275.13 of which NZ$65.00 was a housing supplement
   28 May 2015 NZ$275.13 of which NZ$65.00 was a housing supplement

   4 June 2015 NZ$275.13 of which NZ$65.00 was a housing supplement

   11 June 2015 NZ$275.13 of which NZ$65.00 was a housing supplement
   18 June 2015 NZ$275.13 of which NZ$65.00 was a housing supplement

   25 June 2015 NZ$275.13 of which NZ$65.00 was a housing supplement

7. The Tribunal will remit the matter to the CSA to redo the estimate reconciliation on the basis of Mr Eakins’ figures set out above.

8. As a final observation, the Tribunal observes that Commonwealth agencies administer the Scheme for Compensation for Detriment caused by Defective Administration (the CDDA Scheme) for financial loss as a consequence of maladministration. If Mr Eakins claims to have suffered a financial loss as a consequence of defective administration, he is at liberty to apply to the CSA under the Scheme; the Tribunal is careful to point out it has no role or jurisdiction over the CDDA Scheme.

DECISION

The decision under review is set aside and the matter is sent back to the Child Support Registrar for reconsideration in accordance with the direction that Mr Eakins’ child support liability be recalculated in accordance with paragraphs 10 and 11 of these reasons.