Gold and Gold (Child support)

[2019] AATA 5121

Gold and Gold (Child support) [2019] AATA 5121 (29 October 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC016122

APPLICANT:  Mr Gold

OTHER PARTIES:  Child Support Registrar

Ms Gold

TRIBUNAL:Member J Thomson

DECISION DATE:  29 October 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of both parents – a ground for departure not established – decision not to depart - 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

BACKGROUND

1. Mr Gold and Ms Gold are the parents of [Child 1], born 2003, and [Child 2], born 2005 (the children). For the purposes of child support, the children are recorded as being in the primary (79%) care of Ms Gold, and the regular (21%) care of Mr Gold.

2. A child support case has been registered with and collectable by the Department of Human Services – Child Support (the Department) since 11 May 2011.

3. On 2 November 2015, a Department decision maker, [DM], refused an application by Mr Gold for a change of assessment based on the ground that Ms Gold’s earning capacity was not accurately reflected in the administrative assessment, making the assessment unfair. Mr Gold objected to [DM]  ’ decision, and on 28 January 2016, a Department objections officer disallowed his objection. Mr Gold applied to the Tribunal on 24 February 2016 for review of the objections officer’s decision, but withdrew his application on 14 June 2016, and applied to the Federal Circuit Court of Australia, [State], for a change of assessment. That application was dismissed by [Judge 1]on the grounds that the application was vexatious, frivolous and an abuse of process, and Mr Gold was ordered to pay Ms Gold’s costs.

4. On 10 September 2018, Mr Gold again applied for a change of assessment on the ground that Ms Gold’s income earning capacity was not accurately reflected in the administrative assessment of child support, making the assessment unfair.

5. The administrative assessment in place at the time of Mr Gold’s application on 10 September 2018 required Mr Gold to pay child support to Ms Gold for the children at the annual rate of $30,732, based on his 2016/17 deemed income of $194,026, and Ms Gold’s 2018/19 income estimate of nil.

6. On 26 November 2018, a Department decision maker, [DM], refused Mr Gold’s application as no ground for departure had been established. On 10 December 2018, Ms Gold objected to [DM] decision, and on 19 February 2019, a Department objections officer disallowed Mr Gold’s objection.

7. On 19 March 2019, Mr Gold applied to the Tribunal for review of the objections officer’s decision.

8. The Tribunal heard the matter on 29 October 2019. Both parents attended the hearing via conference telephone and gave affirmed evidence. The Tribunal had before it documentation provided by the Department, and Statements of Financial Circumstances (SOFC) provided by each of the parents. These documents were admitted into evidence. Mr Gold did not have a complete set of the Department’s documentation or a copy of Ms Gold’s SOFC dated 31 April 2019, but was content for the hearing to proceed though he did not have copies of these documents with him at hearing. Ms Gold had copies of the Department’s documentation with her at the hearing, but did not have a copy of Mr Gold’s SOFC dated 9 May 2019, but was content for the hearing to proceed, though she did not have a copy of that document.

ISSUES

1. Both parents acknowledged at the hearing that the issue they required the Tribunal to consider was Ms Gold’s income earning capacity for the purposes of child support.

CONSIDERATION

1. In reaching its decision, the Tribunal has considered the affirmed evidence given by both parents at the hearing, and the documents provided by the Department and the parents referred to above.

The legislative framework

1. The rate of child support payable by a liable parent is usually based on an Administrative Assessment under Part 5 of the Child Support (Assessment) Act 1989 (the Act). A formula is used which takes into account variables including each parent’s adjusted taxable income for the last relevant year of income, the number of children and the level of care provided by each parent. The legislative intent is that the administrative formula will apply in the ordinary run of cases.

2. Part 6A of the Act allows for a departure from an administrative assessment (a process commonly known as a “change of assessment”). Under subsection 98C(1), a change of assessment can be made only if:

   ·a ground (or more than one ground) for departure exists; and

   ·departure from the administrative assessment would be:

   i)just and equitable as regards the children and each parent; and

   ii)otherwise proper.

3. Subsection 98C(2) of the Act provides that the grounds for departure are the same as those set out in subsection 117(2).

4. If satisfied that a ground or grounds exist and that it would be just and equitable and otherwise proper to make a particular determination, the Tribunal may make one of the range of determinations prescribed in section 98S of the Act, which include varying the rate of child support payable, the adjusted taxable income or the cost percentage for a child.

Income, financial circumstances and earning capacity

1. Subparagraphs 117(2)(c)(ia) and (ib) of the Act provide as a ground for departure:

   (c) that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:

   (ia) because of the income, property and financial resources of either parent; or

   (ib) because of the earning capacity of either parent …

2. The words “in the special circumstances of the case” are not defined in the legislation. While it is not possible to define with precision the meaning of that term, it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the legislature is that the Tribunal will not interfere with the administrative formula result unless there is a special reason to do so. In Gyselman and Gyselman (1992) FLC 92–279, it was held that “special circumstances” were “facts peculiar to the particular case which set it apart from other cases”. The Tribunal’s approach to the interpretation and application of the particular grounds of section 117(2) must be guided by the qualification. The Tribunal will consider whether the application of the administrative assessment would result in an unjust and inequitable determination of child support payable, having regard to the evidence relevant to the parents’ financial positions.

3. Subparagraph 117(7B) of the Act provides that, in having regard to the earning capacity of a parent of the child, the Tribunal may determine that the parent’s earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the Tribunal is satisfied that:

   (a)  one or more of the following applies:

   (i)     the parent does not work despite ample opportunity to do so;

   (ii)    the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full‑time work for the occupation or industry in which the parent is employed or otherwise engaged;

   (iii)   the parent has changed his or her occupation, industry or working pattern; and

   (b)  the parent’s decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of:

   (i) the parent’s caring responsibilities; or

   (ii) the parent’s state of health; and

   (c)  the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child.

Mr Gold’s evidence

1. Mr Gold’s SOFC dated 9 May 2019 reflected his occupation as [Position 1] of [Employer A], on an annual salary of $205,000. He reports his current partner, Ms [A], as an income earner residing in his household on an average weekly gross income of $2,846, annualised to $147,992. He notes in his statement, however, that Ms [A] is currently on maternity leave.

2. He gave evidence of Ms Gold’s career as a former [Occupation 1], occupying a variety of senior [positions] before taking up a position from March 2011 until September 2014 as [Position 2] of [Employer B] on a salary of $180,000 per annum. He acknowledged in evidence that in September 2014, Ms Gold’s position was made redundant, and asserted that from that time onward, she was in temporary/casual employment, holding some [positions], which he said Ms Gold voluntarily relinquished in 2016.

3. Mr Gold acknowledged that he was aware, as a result of information received from the Department concerning Ms Gold’s income circumstances, that she had been in some form of employment which he believed was of a casual nature, and had received intermittent income, the most recent source being from her casual employment with a [workplace] at an income level of approximately $15,642 per annum, the amount of her income for child support purposes reflected in the current child support assessment.

4. He made reference in his evidence to Ms Gold’s [academic qualifications] from [University], and her experience gained through her successful [Occupation 1] career which he asserted made her well-placed to take advantage of the strong labour market in [Suburb 1], [State] and, although he accepted she was unlikely to be able to gain a position as well remunerated as her previous [role] with [Employer B], he said she should be able to obtain a position, commanding a salary of approximately $100,000 per annum.

5. However, Mr Gold acknowledged that Ms Gold’s employment prospects had been damaged by the unfavourable publicity surrounding her dismissal from the [positions] to which she was appointed with [Employer C], during the course of [circumstances involving that employer and Organisation D] throughout 2016, arising from [an action by the employer], and her resignation from her [position with Employer E], and that, in her efforts to obtain employment, she may have been applying for jobs she could not expect to get as a consequence of the effect of that detrimental publicity, though no formal charges were brought against her nor any finding of wrongdoing made against her arising from investigations into that [employer’s actions].

6. In summary, Mr Gold asserted that Ms Gold was not looking for the type of job he suggested she should be able to get, but instead was taking lesser-paid casual positions which he asserted she was motivated to take in order to ensure her level of income remained low, and she continued to receive child support from Mr Gold based on his higher level of income. He also directed the Tribunal’s attention to the lack of evidence on Ms Gold’s part of her having applied for work in the period following her dismissal from her [positions] with [Employer C] and [Employer D] in 2016, and her securing the casual part-time position with a local [workplace] in November 2018.

7. Mr Gold acknowledged he was not able to offer any evidence that Ms Gold had deliberately reduced her working hours in order to reduce her income for child support purposes.

Ms Gold’s evidence

1. Ms Gold’s SOFC reflects her most recent occupation as [an Occupation 2] in the employ of [Employer F] located in [Suburb 2], [State], on a weekly salary of $250, annualised to $13,000. She lists her current partner’s average weekly income at $2,442, annualised to $126,984, and acknowledged in her evidence that she receives financial support from her current spouse.

2. Ms Gold confirmed the evidence given by Mr Gold regarding her [Occupation 1] experience and her academic qualifications as set out above. However, she pointed out that her [qualifications] were attained in 1979, and gave evidence that she recently approached [Professional body] regarding the status of her qualifications with a view to resuming [work] as [an Occupation 3], and had been advised that she will be required to undergo a period of further study at [Professional education provider] in the New Year in order to qualify for a current [professional accreditation].

3. Ms Gold gave evidence that following her leaving [Occupation 1] in May 2011, she took up a position with [Employer B] as [Position 2] on a salary of $180,000 per annum. She said her position was made redundant in September 2014 as a consequence of a government-initiated restructuring of [Employer B]’s [operations], an outcome she said did not assist her prospects of readily obtaining a similar position.

4. She said that ex-[Occupation 1] rely heavily on their personal reputations and word of mouth referrals when applying for senior positions in the [employment sector], the employment area for which she was best qualified, having regard to her academic qualifications and senior level [experience] in [work-related activities]. She said that, as an ex-[Occupation 1], she felt apprehensive about applying for leadership positions in the [employment sector], positions she said were difficult to come by, and relied on networking, and typically have long lead times in coming to fruition. She also said she considered her prospects of getting a senior management role in the [private] sector, given her [Occupation 1] background, were remote.

5. Ms Gold said she was appointed to [positions with] [Employer C] in 2015. These [positions] came with a salary of $10,000 each. She was also appointed to a [position] with [Employer E], which attracted a salary of $20,000 per annum. Within 10 days of her joining [Employer C], she said the [employer] [became involved in a circumstance with Organisation D], which she said had a devastating effect on the [employer] and its management over the course of the 2015 and 2016 years, resulting in the [State] Government [taking official action] and the summary dismissal of the [management] members, including Ms Gold, in the latter part of 2016.

6. Ms Gold provided copies of newspaper extracts from [Newspaper] reporting the fallout from the [circumstances involving Employer C and Organisation D], reflecting scathing criticism inflicted on the [employer’s management], including Ms Gold by the [Organisation D] [official], Mr [B], and the consequential damage she said this caused to her public and private reputation.

7. She said investigations were conducted into the [employer’s actions] by [Organisation 2], and [Organisation 3], which were reported in the newspapers and public media, as a consequence of which she received a telephone call from [Employer E] [official], [Mr C], advising her that [a Public office holder] had requested her to step down from her [Employer E] position until the investigations being conducted by [Organisation 2] and [Organisation 3] had been concluded and their findings made known. She said she complied with this request, on the understanding that in the event no charges were laid against her or findings of wrongdoing on her part were made as a result of these enquiries, she would be reinstated as a [position]. Although no charges were brought, or findings of wrongdoing against her were made by either [Organisation 2] or [Organisation 3], she said she was not reinstated, and no public exoneration of her [position] conduct has been made, and, consequently, she has sustained serious reputational damage, a conclusion with which Mr Gold generally agreed.

8. Ms Gold said she was reluctant to apply for [senior] management positions following her dismissal from [Employer C] because she considered the damage to her professional reputation resulting from the adverse publicity arising from [the action of Employer C] would count against her, and that her only prospect of getting a suitably remunerated position, commensurate with her background and experience, would be through networking and personal connections. She said she felt her reputation had been “shot”, and it would take some time to repair that damage.

9. Ms Gold said she did register with a recruitment agency for employment. She said she had successfully completed a [professional course] shortly before the crisis over [the action of Employer C began] erupted, but after her summary dismissal from [Employer C] in July 2016, and the consequential damage to her reputation, she doubted those qualifications would assist her in securing further employment in the private corporate sector.

10. Ms Gold gave evidence of having unsuccessfully applied for a not-for-profit position with [an employer] at [Suburb 3], and for a number of jobs on [Social media]. She was also approached to [lead] an organisation to be set up to assist [specified people], but heard nothing further, and suspects the promoters were unable to obtain funding for that venture.

11. She also applied for an executive position with [Employer G] in April 2019 and was one of two candidates short-listed, but failed to secure that position. She gave evidence of a similar application to [Employer H] for [a position], was short-listed for selection, but, again, failed to secure that position. She attributed her failure to secure these positions to the damage caused to her reputation as a result of her summary dismissal from [Employer C] referred to above.

12. Ms Gold said that in November 2018, she managed to secure a part-time casual job as [an Occupation 2] with [Employer F] in [Suburb 2]. She gave evidence that she worked for [Employer F] from 23 November 2018 to the end of January 2019. She was diagnosed with [a medical condition] in December 2018 which required [medical treatment] in January 2019, and was unable to return to work until March 2019, by which time she said there had been a decline in the volume of work available at the [employer], resulting in her receiving very little casual work, though she made herself available for work. Although she is still registered with the [employer] for casual work, she said she has not been called upon to work since April this year.

13. Although she commenced a retraining course in [Subject] with a view to becoming a professional [Occupation 4], Ms Gold said she has not been able to complete that course due to the intervention of the [medical treatment].

14. In her final submission to the Tribunal, Ms Gold said that because of the damage to her reputation following the fallout from [circumstances involving Employer 3], she was obliged to take the casual work with [Employer F] as it was the only work she could find. She said she would prefer to have a higher income and a correspondingly higher degree of financial independence, but has not been able to secure a position at that level because of her damaged reputation, and the general prejudices faced by ex-[Occupation 1] in finding work in the public arena.

Conclusions

1. The Tribunal finds that the evidence is that Ms Gold was made redundant in September 2014 when, as a result of a restructuring of [Employer B], her [position] was abolished. The Tribunal finds her positions[with Employer E and Employer D] were terminated as a consequence of events beyond her control, and not as a result of any conduct on her part.

2. The Tribunal finds that as a consequence of the circumstances in which Ms Gold was removed from her [positions] referred to in the previous paragraph, and her background as a former [Occupation 1], she would have encountered significant difficulties in securing a position commensurate with her academic and professional qualifications and particular skill sets in the sectors for which she would have been otherwise suited.

1. The Tribunal also finds that Ms Gold has been actively seeking employment, and although the position she accepted with [Employer F] is a change from her usual occupation and working hours, her circumstances as detailed above justified her in doing so.

2. The Tribunal is therefore not satisfied Ms Gold has not worked despite ample opportunity to do so. As the Tribunal is required to be satisfied that all three criteria set out in subparagraphs (a), (b) and (c) of section 117(7B) of the Act have been met to establish a ground for departure from the administrative assessment, the Tribunal finds no ground has been established.

3. As the Tribunal has reached the same decision as the objections officer in the decision under review, the Tribunal affirms that decision.

DECISION

The decision under review is affirmed.