Gilbert and Bako (Child support)

[2019] AATA 692

Gilbert and Bako (Child support) [2019] AATA 692 (8 March 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/AC015789

APPLICANT:  Mr Gilbert

OTHER PARTIES:  Child Support Registrar

Miss Bako

TRIBUNAL:Member K Buxton

DECISION DATE:  08 March 2019

CATCHWORDS

CHILD SUPPORT – dismissal of application for review - particulars of the administrative assessment – last relevant year of income correctly applied - 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. In this matter, Mr Gilbert seeks review of a decision of an objections officer of the Child Support Agency (CSA), dated 8 January 2019, in which his objection to the decision of the CSA to use his adjusted taxable income from the 2016/17 financial year of $145,239 as the relevant year’s income, and apply it to the child support assessment from 1 July 2018, was disallowed.

1. I convened a directions hearing on 21 February 2019 and discussed the application with Mr Gilbert and Miss Bako. Each party made submissions during the directions hearing. I offered the parties the opportunity to provide additional written submissions after the direction hearing in relation to the application and, in particular, as to why it ought not be dismissed on the basis that the application had no reasonable prospects of success. Mr Gilbert provided further written submissions to the tribunal on 1 March 2019.

2. The information provided by the CSA indicated that Mr Gilbert lodged an estimate of his income for the 2017/18 year, and this income was used in the child support case until 30 June 2018, after which that income estimate ceased to apply. Mr Gilbert stated during the directions hearing that he was aware when he lodged his income estimate that it would apply in the child support case only until 30 June 2018. Mr Gilbert lodged his 2017/18 income tax return in October 2018 and his adjusted taxable income from the information provided in that tax return has applied since the information from that lodgement was provided to the CSA on about 25 October 2018. However, between July 2018 and 24 October 2018 Mr Gilbert did not have an income estimate in place. The CSA therefore used Mr Gilbert’s 2016/17 adjusted taxable income from 1 July 2018, until more up-to-date information was provided, because that is what is required under the relevant provisions of the Child Support (Assessment) Act 1989 (the Act). IN those circumstances Section 43 of the Act requires the CSA to use the last relevant year of income for the relevant child support period, and section 5 of the Act defines the last year of income as the last year which ended before the start of that period. Once the income estimate for the 2017/18 year ceased to apply on 1 July 2018 the CSA was required to use adjusted taxable income for Mr Gilbert from the 2016/17 year, being the last year of income as defined, until further income information became available.

3. Mr Gilbert stated both during the hearing and in his subsequent written submission that his adjusted taxable income based on his 2016/17 income tax return included monies he had inherited from his father. He submitted that the inclusion of these amounts in the child support assessment was unfair. He did not submit what figure would be fair, or make any submissions as to any alternative income figures available to the CSA which ought to have been used. Mr Gilbert did not identify any way in which the legislation had been incorrectly applied by the CSA.

4. Mr Gilbert did include in his written submissions reference to provisions in Part 6A of the Act (and, in particular, “reason 8” under that Part of the Act, as it is referred to in the Child Support Guide”) which deal with circumstances where a departure application under that Part has been made by a parent. No such departure application has been made, although it is open to Mr Gilbert to do so, and I did explain this during the directions hearing. As a result, the provisions of Part 6A of the Act, as referred to in Mr Gilbert’s written submissions, do not have any work to do in the subject application. Mr Gilbert also submitted, both during the directions hearing and in writing, that he would have preferred to donate the inherited monies to charity than have any part of that money included in the assessment of child support. This may be relevant to Mr Gilbert’s prospects of successfully seeking a departure under Part 6A of the Act but, again, this does not have any bearing on the subject application.

5. Miss Bako submitted that she accepted the correctness of the objection decision.

6. The legislative scheme has been applied to the facts in this case. The result is that the assessment of child support from 1 July 2018 was based on Mr Gilbert’s 2016/17 adjusted taxable income of $145,239. The tribunal has found that the CSA was required to use this information until further information became available. Mr Gilbert submitted that he did not receive a notice issued by the CSA in May 2018 indicating that his estimate would cease to apply from 1 July 2018. The tribunal accepts that Mr Gilbert did not receive this letter. However, Mr Gilbert clearly indicated that he knew the estimate would cease to apply at the end of the estimate period when that estimate was lodged. The CSA was required to use income from the last relevant year of income, being 2016/17, in any event and no different outcome is available on review.

7. It follows from the tribunal’s consideration of this review application that the tribunal would be required to make the same decision on review as that made by the objections officer. As Mr Gilbert does not have any real prospect of obtaining a more favourable decision on review it is therefore appropriate to dismiss his application under subsection 42B(1) of the Administrative Appeals Tribunal Act 1975 on the basis of no reasonable prospect of success. I determine accordingly.