Hussey and Carsley (Child support)

[2019] AATA 1218

Hussey and Carsley (Child support) [2019] AATA 1218 (18 April 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/SC015645

APPLICANT:  Mrs Hussey

OTHER PARTIES:  Child Support Registrar

Mr Carsley

TRIBUNAL:Member S Letch

DECISION DATE:  18 April 2019

CATCHWORDS

CHILD SUPPORT – dismissal of application for review - departure determination - the income, property and financial resources of the liable parent - 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. Mrs Hussey sought review by the Tribunal of a decision by an objections officer of the Department of Human Services (the Department) dated 17 December 2018 which disallowed her objection to an earlier decision made on 1 November 2018.

2. The Department decided, on Mrs Hussey’s application for a “change of assessment”, that there were no grounds to depart from the administrative assessment under the child support formula. Despite Mr Carsley having medical evidence indicating he is unable to work and that he had been in receipt of Centrelink benefits, Mrs Hussey contended Mr Hussey was capable of working, and was choosing not to. She also contended that Mr Carsley was working for a friend at [Business 1].

3. Mr Carsley submitted he was assisting [Business 1] on an unpaid basis; since his Centrelink allowance was recently stopped, [Business 1] has now agreed to employ him for a trial period. He submitted to the Tribunal a payslip for the period 28 January 2019 to 1 February 2019 revealing what Mr Carsley says is his weekly pay of $440 (before tax) for working 20 hours per week. Notably, this equates to an annualised income of $22,880, which is below the self-support amount for child support purposes. Mr Carsley has been assessed on the minimum annual rate of child support (he is not able to now be assessed on the higher fixed annual rate as that will only apply if he has not received a Centrelink income support payment in the last relevant year of income: section 65A of the Child Support (Assessment) Act 1989)).   

4. Accordingly, an assessment based on Mr Carsley’s current level of income would not increase the amount of child support liability he has been assessed to pay under the formula.

5. Following an early case appraisal conference before the Tribunal, the Tribunal invited Mrs Hussey to make a submission as to why her application should not be dismissed on the basis that it has no reasonable prospects for success; the Tribunal was not provided with a response.

6. Amendments to the Administrative Appeals Tribunal Act1975 (AAT Act) made by the Tribunals Amalgamation Act 2015 broadened the scope of the Tribunal’s dismissal powers. Subsection 42B(1) relevantly provides:

   (1) The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:

   (a)      is frivolous, vexatious, misconceived or lacking in substance; or

   (b)      has no reasonable prospect of success; or

   (c)      is otherwise an abuse of the process of the Tribunal.

7. The Revised Explanatory Memorandum to the Tribunals Amalgamation Bill 2014 explained that these powers “would provide the Tribunal with greater power to dismiss unmeritorious matters early where appropriate”.

8. The Tribunal’s statutory objective is, inter alia, to provide a mechanism of review that is fair, just, economical, informal and quick: see section 2A of the AAT Act.

9. It is trite that the power to dismiss an application on the basis it has no reasonable prospect of success ought to be sparingly invoked.

10. There is no evidence to support Mrs Hussey’s allegation that Mr Carsley was receiving “off the record” income from [Business 1]; the evidence reveals that Mr Carsley’s income from January 2019 is below the self-support amount for child support purposes. Mr Carsley had been in receipt of the maximum rate of newstart allowance for some time prior to January 2019. A requirement for receipt of newstart allowance is that a recipient meets the activity test by actively seeking work; alternatively, with proper medical evidence, a person can be exempted from seeking work. It appears Centrelink has accepted that Mr Carsley was unfit for work. I do not consider there any basis for Mrs Hussey’s contention that Mr Carsley be assessed on what she says is his earning capacity. Mr Carsley was also obliged to report income to Centrelink; the evidence reveals Mr Carsley was paid the maximum rate of newstart allowance on the basis he had no other sources of income.

11. The Tribunal’s primary role is to review decisions; it is not an investigative body. Mrs Hussey has no other evidence which would support her allegation of undisclosed income. It is common for parties to come to this Tribunal, and indeed the Department, alleging undisclosed sources of income, often alleged to be in cash. Commonly, there is no objective evidence to corroborate such claims.

12. On the currently available evidence, it seems very unlikely that a decision would be made to increase Mr Carsley’s child support liability.  

13. In this case, after careful consideration, I have come to the view that Mrs Hussey’s application cannot succeed.

14. In the circumstances, and guided by the Tribunal’s statutory objective under section 2A of the AAT Act, I have decided it appropriate to exercise the power available under paragraph 42B(1)(b). Permitting proceedings that simply could not succeed to continue would be inconsistent with notions of justice, fairness, economy and proportionality that the Tribunal must take into account. Accordingly, I dismiss the application.    17/