Gough and Gough (Child support)

[2024] AATA 1183

Gough and Gough (Child support) [2024] AATA 1183 (2 April 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/PC027203

APPLICANT:  Mr Gough

OTHER PARTIES:  Child Support Registrar

Ms Gough

TRIBUNAL:Senior Member K Dordevic

DECISION DATE:  2 April 2024

CATCHWORDS

CHILD SUPPORT – dismissal of application for review – departure from the administrative assessment – unused earning capacity – 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 (AAT Act).

2. The reasons for this decision are set out in the following paragraphs.

3. Mr Gough lodged an application with the Social Services and Child Support Division on 13 December 2023 seeking review of a Services Australia – Child Support (Child Support) change of assessment decision.

4. On 15 December 2023 Child Support confirmed an objection decision had been made on 16 November 2023 disallowing the objection to the change of assessment decision made on the 13 September 2023, where no ground for departure from the administrative assessment was found.

5. An early case appraisal conference took place on 22 February 2024. Both Mr Gough and Ms Gough attended the conference via MS Teams audio. The Conference Registrar discussed the merits of the case with both parents.

6. On 23 February 2024 the Tribunal sent a letter to Mr Gough via his nominated email address advising:

   PROPOSED DISMISSAL OF YOUR APPLICATION FOR REVIEW
   
   
   As discussed at your Early Case Assessment Conference, the Tribunal is considering whether to dismiss your application under section 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 on the basis that the application has no reasonable prospect of success.
   
   
   You have 21 days from the date of this letter to give us any evidence or written submission that you wish to have considered before that decision is considered.

1. No response was received from Mr Gough by close of business on 28 March 2024.

2. Mr Gough sought a departure from the administrative assessment on the basis that Ms Gough has an unused earning capacity, relying on subsection 117(7B) of the Child Support (Assessment) Act 1989 (the Act). The facts are not in contention. Ms Gough was working on a full-time basis before the birth of the parents’ first child in 2008 and since that time has worked on a part-time basis. Ms Gough has worked for the same employer, and has worked the same part-time hours, for about 17 years. That is, she has worked on a part-time basis prior to the parents’ separation and the registration of the child support case.

3. Mr Gough submits that Ms Gough deliberately chooses not to work on a full-time basis to maximise her entitlement to child support and that Child Support misapplied the legislation and this results in an unfair and inequitable outcome.

4. The Tribunal has carefully considered Mr Gough’s application, his submissions and the legislation and has determined that his application has no reasonable prospects of success for the following reasons. There is no evidence to establish that Ms Gough is not working, has reduced her hours of work or that she has changed her occupation or working pattern as required under paragraph 117(7B)(a) of the Act since the parents’ separation. Even if the Tribunal was willing to accept Mr Gough’s submission that the term “reduced” has no temporal limitation, it is apparent that in a context where the mother’s current work pattern was in place prior to separation Ms Gough is able to establish that her decision to continue to work on a part-time basis is not substantially motivated by the effect that it would have on the administrative assessment, as required by paragraph 117(7B)(c) of the Act.

5. The Tribunal dismisses the application as the application lodged by Mr Gough has no reasonable prospect of success.