Kanabury and Kanabury (Child support)

[2024] AATA 4109

Kanabury and Kanabury (Child support) [2024] AATA 4109 (2 September 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/AC028013

APPLICANT:  Mr Kanabury

OTHER PARTIES:  Child Support Registrar

Mrs Kanabury

TRIBUNAL:Member D Lambden

DECISION DATE:  02 September 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – use of provisional income to calculate father’s assessment – salary sacrifice included as income – decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted 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 and Mrs Kanabury are the parents of three children, born 2004, 2008 and 2009. This matter relates only to the child born in 2009, who is recorded as being in the 100% care of Mrs Kanabury.

2. The application for review before the Tribunal relates to the decision to apply provisional income for Mr Kanabury to the child support assessment.

3. On 25 July 2023, Services Australia – Child Support (Child Support) decided to apply Mr Kanabury’s 2022/2023 provisional income of $80,368.00 to the child support assessment for the period 1 September 2023 to 30 November 2024.

4. On 27 July 2023 Mr Kanabury objected to this decision, and on 20 May 2024, the objections officer decided to disallow the objection.

5. Mr Kanabury applied to the Tribunal for further review as he was still of the view that it was unfair to apply provisional income for him of $80,368.00 when he stated his income was $52,728.71.

6. The Tribunal heard the matter on 28 August 2024.

7. Mr Kanabury attended the hearing in person. Mrs Kanabury advised the Tribunal that she did not want to attend the hearing and she did not attend.

8. Mrs Kanabury provided documents to the Tribunal (B1 to B14) which were exchanged with Mr Kanabury and Child Support.

9. The Tribunal had before it documentation provided by Child Support (the hearing papers totalling 105 pages) which had been provided to both parents.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).

2. The issue which arises in this case is whether provisional income of $80,368.00 for Mr Kanabury should be applied to the assessment from 1 September 2023 to 30 November 2024.

CONSIDERATION

1. Section 58 of the Act allows Child Support to determine a person’s adjusted taxable income for a child support period where either the person’s taxable income for the last relevant income year has not been assessed under an Income Tax Assessment Act or Child Support is unable to ascertain whether or not the person’s taxable income for that year has been so assessed.

2. When a tax assessment is available for the year before the last relevant year of income, the ATI indexation factor is used to calculate the ATI to be used in the assessment (section 58(3)). The provisional income is calculated by multiplying the parent’s income for the previous year by the ATI indexation factor.

3. In this case, Mr Kanabury’s taxable income for the 2022/2023 financial year had not been available when Child Support made the assessment for the period commencing 1 September 2023 (the 2022/2023 tax return had not been lodged) and thus Child Support determined a ‘provisional’ income amount of $80,368.00 to be used in the administrative assessment pursuant to section 58
   (3) of the Act (Mr Kanabury’s taxable income for the 2020/2021 financial year was $75,393.00).

4. The Tribunal notes on Mr Kanabury’s payslip for the pay period paid on 27 July 2023, included in the hearing papers at page 20, that he receives salary sacrifice of $369.75 per fortnight with [Financial services provider], which is a reportable fringe benefit which is included as income in the child support assessment.

5. Mr Kanabury’s evidence and submissions included that:

   ·     He explained that he completes his tax returns online himself and he is currently unable to complete his tax returns because he is stuck at one of the questions that he needs to answer, and he cannot progress his application. Mr Kanabury stated that he does not have the money to pay for assistance to complete his tax return.

   ·     He explained that money is being deducted from his wages to pay child support.

   ·     He explained that on his payslips it shows he does not earn $80,000.

   ·     Mr Kanabury stated that his 2020/2021 income was $49,000 and he does not understand how Child Support calculated that he has income of $80,000.

6. On this basis, the Tribunal finds that the decision of Child Support is correct.

DECISION

The decision under review is affirmed.