Kendle and Kendle (Child support)
[2025] ARTA 1278
•4 July 2025
Kendle and Kendle (Child support) [2025] ARTA 1278 (4 July 2025)
Applicant: Mr Kendle
Respondent: Child Support Registrar
Other Parties: Ms Kendle
Tribunal Number: 2025/AC029107
Tribunal: Member A Treble
Place:Melbourne
Date:4 July 2025
Decision:The Tribunal affirms the decisions under review.
CATCHWORDS
CHILD SUPPORT – income, property and financial resources – provisional adjusted taxable income – reportable superannuation – 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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.
Statement of Reasons
BACKGROUND
Mr and Ms Kendle are the parents of [Child 1] ([born in] September 2014) and [Child 2] ([born in] May 2013). A child support assessment has been in place since 4 September 2017.
On 11 June 2024, Services Australia – Child Support (Child Support) issued a statement setting out the child support assessment for [Child 1] and [Child 2] for the period 1 November 2021 to 28 February 2025.
On 14 June 2024, Mr Kendle lodged an objection stating that “I would like my correct income used in the assessment and not a provisional which in turn will correct the arrears”.
Two decisions were made by an objections officer following Mr Kendle’s objection.
On 22 November 2024, an objections officer reviewed the decision, said to have been made on 11 June 2024, to replace Mr Kendle’s 2021/22 provisional income of $93,204 with his Australian Taxation Office (ATO) assessed adjusted taxable income (ATI) of $86,452[i] for the period 1 November 2021 to 30 June 2022. The objections officer disallowed the objection and found that:
Child Support started a new child support period from 1 November 2021 using the 2021/22 financial year as the relevant year of income in the assessment.
As Mr Kendle’s 2021/22 ATI was not known, Child Support applied a provisional income of $93,204 to the assessment from 1 November 2021 to 30 June 2022.
Child Support received information from the ATO regarding Mr Kendle’s ATI of $86,452 for 2021/22. Child Support made the decision to replace Mr Kendle’s provisional income of $93,204 with his ATI, as assessed by the ATO for 2021/22, of $86,452 from 1 November 2021 to 30 June 2022.
On 10 December 2024, an objections officer reviewed the decision, said to have been made on 11 June 2024, to replace Mr Kendle’s 2022/23 provisional income of $89,564 with his 2022/23 ATO assessed ATI of $75,992 for the period 1 December 2023 to 28 February 2025. The objections officer disallowed the objection and found that:
On 16 October 2023, Child Support started a new child support period from 1 December 2023 using the 2022/23 financial year as the relevant year of income in the assessment.
As Mr Kendle’s 2022/23 ATI was not known, Child Support applied a provisional income of $89,564 to the assessment.
Child Support received information from the ATO regarding Mr Kendle’s ATI of $75,992 for 2022/23. Child Support made the decision to replace Mr Kendle’s provisional income of $89,564 with his ATI, as assessed by the ATO for 2022/23, of $75,992 from 1 December 2023 to 28 February 2025.
On 6 January 2025, Mr Kendle lodged an application with the Tribunal seeking an independent review of a Child Support decision. Mr Kendle lodged a copy of the letter dated 11 June 2024 with his application, with notations which indicate the basis of the request for review as follows:
For the assessment period 1 November 2021 to 30 June 2022, Child Support has used a “reconciled estimate” of $86,452. Mr Kendle has noted that his actual income for 2021/22 was $71,452.
For the assessment period 1 July 2022 to 19 November 2022, Child Support has used 2020/21 taxable income of $90,577. Mr Kendle has noted that his actual income for 2022/23 was $75,992.
For the assessment period 20 November 2022 to 30 November 2022, Child Support has used 2020/21 taxable income of $90,577. Mr Kendle has noted that his actual income for 2022/23 was $75,992.
For the assessment period 1 December 2022 to 20 November 2023, Child Support has used 2021/22 taxable income of $86,452. Mr Kendle has noted that his actual income for 2022/23 was $75,992.
For the assessment period 21 November 2023 to 30 November 2023, Child Support has used 2021/22 taxable income of $86,452. Mr Kendle has noted that his actual income for 2022/23 was $75,992.
For the assessment period 1 December 2023 to 28 February 2025, Child Support has used 2022/23 taxable income of $75,992. Mr Kendle has noted his agreement to this figure with a tick.
The hearing of the application was held on 10 June 2025. Mr Kendle and Ms Kendle both participated in the hearing via Microsoft Teams audio and gave evidence on affirmation.
In addition to Mr Kendle’s and Ms Kendle’s oral evidence and submissions at hearing, the Tribunal took into account the relevant documents provided by Child Support to the Tribunal and Mr Kendle and Ms Kendle prior to hearing: pages 1 to 139, and tax notices of assessment provided by Mr Kendle after the hearing.
CONSIDERATION
10. Mr Kendle was of the understanding that the Tribunal would review each of the income components set out in the letter of 11 June 2024. However, the Tribunal only has jurisdiction to review a decision that has been previously reviewed by a Child Support objections officer (Child Support (Registration and Collection) Act 1988 section 89).
11. Accordingly, the Tribunal confined the review to the decisions of the objections officers dated 22 November 2024 and 10 December 2024.
The relevant law
12. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act). The child support legislation provides for assessment of child support using a formula taking into account numerous variables, including the income of each party to a child support assessment.
An administrative formula assessment made under the Act uses the ATI of both parents to assess the rate of child support payable for a child. The ATI is defined in section 43 of the Act and includes the parent’s taxable income for the last relevant year of income in relation to the child support period, plus a number of supplementary amounts where applicable. Those additional components include:
Reportable fringe benefits;
Target foreign income;
Total net investment losses;
Total of specified tax free pensions or benefit; and
Reportable superannuation contributions.
14. The 'last relevant year of income' is defined in subsection 5(1) of the Act as the year of income that ended before the start of the child support period.
15. Subdivision C of Division 7 of Part 5 of the Act enables a person to elect that an estimate of their ATI is used either before the income year commences or during the income year, to replace the ATI amount calculated using last year’s taxable income (section 60).
16. When a parent makes an income estimate election for a year of income their income estimate will be reconciled, under section 64 of the Act, when their actual income for the year of income is known, including all updates made to their income estimate during that year.
17. If the actual ATI is less than or equal to the estimated ATI, no further action will be taken. If the parent's actual ATI is more than their estimated ATI, the assessment will be amended using their actual ATI.
18. Further, if the parent’s taxable income for the last relevant year of income has not been assessed by the ATO, or if the Child Support Registrar (the Registrar) is unable to ascertain whether the parent’s taxable income has been so assessed, the Registrar can determine an ATI for the parent using subsection 58(1) of the Act. This is known as a provisional assessment.
19. If the Registrar has made a determination of a parent’s ATI under section 58 and later ascertains the parent’s actual ATI (because the parent’s income is assessed by the ATO), the Registrar may be required to amend the administrative assessment.
The decision to replace Mr Kendle’s provisional income of $93,204 for 2021/22 with his actual ATI of $86,452 for the period 1 November 2021 to 30 June 2022
20. In this case, the objections officer referred to a provisional income being in use for 2021/22 prior to Mr Kendle’s taxable income being assessed by the ATO. The documents provided by Child Support indicate that on 1 July 2020 Mr Kendle provided an estimate of income of $82,119 for 2020/21. On 12 May 2021, Mr Kendle provided another estimate of income of $84,937.22 for 2021/22. This latter estimate was used until the ATO assessed Mr Kendle’s ATI for 2020/21 at $90,577. The ‘Client income screen’ indicates that a provisional ATI of $93,204 for 2021/22 was then applied to the assessment of child support. The ATI for 2021/22 was later reconciled with Mr Kendle’s actual ATI of $86,452, as assessed by the ATO.
21. Mr Kendle said that the figure of $86,452 was incorrect. He provided a tax notice of assessment stating that his taxable income for 2021/22 was $71,452. The Tribunal explained to Mr Kendle that ATI for child support purposes could include additional components and asked him to provide a copy of his relevant tax return to substantiate his ATI for 2021/22. Mr Kendle did not provide his full tax return. The additional documents obtained from Child Support after the hearing showed that in 2021/22 Mr Kendle had a reportable superannuation amount of $15,000. Together with his taxable income of $71,452, his ATI, in accordance with section 43 of the Act, amounted to $86,452.
22. Accordingly, the Tribunal concluded that the decision of the objections officer dated 22 November 2024 was correct.
The decision to replace Mr Kendle’s provisional income of $89,564 for 2022/23 with his actual ATI of $75,992 for the period 1 December 2023 to 28 February 2025
23. On 16 October 2023, Child Support advised Mr Kendle by letter that a new child support period would apply from 1 December 2023 to 28 February 2025 because the current child support period was due to end. At that time Mr Kendle was assessed on his 2021/22 ATI of $86,452 for the period 1 December 2022 to 30 November 2023. For the new assessment period from 1 December 2023 to 28 February 2025, Mr Kendle was assessed on his 2022/23 provisional income of $89,564, pending receipt of the ATO assessed figure for that year.
24. On 2 November 2023, Child Support advised Mr Kendle that the child support assessment had been updated, to replace his provisional income of $89,564 with his assessed ATO income of $75,992 for 2022/23 for the period 1 December 2023 to 28 February 2025. The figure of $75,992 was reflected in the letter of 11 June 2024, being the letter which prompted Mr Kendle to lodge an objection.
25. Mr Kendle did not disagree with the decision to replace his provisional income of $89,564 with his assessed ATO income of $75,992 for 2022/23 from 1 December 2023.
26. The replacement of the provisional income figure with Mr Kendle’s actual ATI for 2022/23 accords with the legislation. Accordingly, the Tribunal concluded that the decision of the objections officer dated 11 December 2024 was correct.
DECISION
The Tribunal affirms the decisions under review.
| Date of hearing: | Tuesday, 10 June 2025 |
[i] The decision of the objections officer erroneously refers to a figure of $45,425. However, the relevant income screen, and the letter of 11 June 2024, shows the 2021/22 ATI figure used is $86,452.
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