Kingaby and Kingaby (Child support)

[2021] AATA 3845

Kingaby and Kingaby (Child support) [2021] AATA 3845 (3 August 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/PC021654

APPLICANT:  Mr Kingaby

OTHER PARTIES:  Child Support Registrar

Ms Kingaby

TRIBUNAL:Member W Budiselik

DECISION DATE:  3 August 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – estimate of income – whether the estimated income is less than the amount likely to be the actual income – estimate of income correctly refused – 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 Kingaby (the father/applicant) and Ms Kingaby (the grandmother) are the parent and grandparent carer of a child (born in 2008), who are the subjects of an administrative assessment of child support. Mr Kingaby pays Ms Kingaby child support.

2. On 18 May 2021, an objections officer from Services Australia (the Agency) allowed an objection by the grandmother to a decision of the Agency made on 19 March 2021, to accept the father’s income estimate. The objections officer decision was that the father’s income estimate was refused.

3. On 2 June 2021, the father lodged an application for a review of the Agency’s decision with the Administrative Appeals Tribunal (the tribunal). On 3 August 2021, the tribunal conducted a hearing into the application. The father and grandmother participated in the hearing in person. Prior to the hearing the Agency provided the father and grandmother with a bundle of papers taken from its files (folios 1–109). The father said he had not received the Agency’s papers. The tribunal proceeded with the hearing and showed the father relevant documents.

4. When the father lodged his application to the tribunal, he set out his reasons for his application:

   Reason 1

   I have been updating my care with [Child 1] since the 17 of October and child support keep putting it back to 100% care with my mother when I had [Child 1] up to 30% of the time until my mother stopped me seeing [Child 1] completely on the 14th of March due to COVID-19

   Reason 2

   Child support refuse to update my income and the leave it as $118,000 down to $53,000 a year as I’ve only earned $44,540.40 YTD and paid $8,426.92 in child support for the year

   Reason 3

   I’ve also had enough of child support treating me like dog and stating my bills and expenses are not relevant and the don’t care if I end up homeless which is what is about to happen.

5. The tribunal clarified with the father and grandmother the only decision able to be reviewed by the tribunal in the scheduled hearing was the decision by the Agency to refuse to accept the father’s income estimate of $0 provided by him to the Agency on 19 March 2021.

6. The tribunal noted the father has been in contact with the Agency about the child’s care percentage determinations.

7. The tribunal referred the father to the Agency’s online child support guide so he could better understand the reasons that enable him to seek a change to the administrative assessment of child support.

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 the father’s income estimate was correctly refused by the Agency.

CONSIDERATION

Issue: Was the father’s income estimate correctly refused by the Agency?

1. The rate of child support payable by a liable parent is usually based on an administrative assessment under Part 5 of the Act. This requires the application of a statutory formula which uses the adjusted taxable income for the year ending immediately before the start of the child support period (the last relevant year of income).

2. Section 60 of the Act provides that where an income estimate is made part-way through a tax year, the applicant is required to provide information about their year-to-date adjusted taxable income and an estimate of likely adjusted taxable income for the remainder of the tax year, on and from the date of the income estimate election.

12.Section 63AA allows the Registrar to refuse to accept an estimate of income if the income provided for the income year is less than the amount the Registrar considers likely to be the parent’s actual adjusted taxable income for the remaining period.

1. When the father provided his income estimate on 19 March 2021, he estimated his income for the period 19 March 2021 to 30 June 2021 to be $0.

2. After the grandmother objected to the Agency’s decision to accept the father’s $0 estimate the Agency issued a notice to the father’s employer to obtain additional information from it about the father’s employment income. The father’s employer subsequently provided information to the Agency which set out the father was employed as a casual employee ([Occupation 1]) from 23 November 2020; that his average hours of work per week numbered 38, and that he became a permanent employee in April 2021. That is, the father was employed and earning employment income at the time he provided the $0 income estimate to the Agency.

3. On 24 March 2021, the father signed an affidavit to the Court which included advice to the Court that he ‘has now ceased working an irregular [roster] and is on regular [roster] with regular hours…’.

4. Given the information provided by the father’s employer (which was not contradicted) and the information the applicant provided to the Court, the tribunal is satisfied the income estimate provided by the father for the period from 19 March 2021 to 30 June 2021, was likely to be substantially less than the father’s actual income for that period.

5. Therefore, it is open to the Registrar (and the tribunal in the Registrar’s place) to refuse to accept the income estimate provided by the father for the period 19 March 2021 to 30 June 2021.

6. The tribunal agreed with the Agency’s decision to refuse to accept the father’s income estimate.

DECISION

The decision under review is affirmed.