Leftwich and Wrinch (Child support)

[2021] AATA 4224

Leftwich and Wrinch (Child support) [2021] AATA 4224 (13 October 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/AC021860

APPLICANT:  Mr Leftwich

OTHER PARTIES:  Child Support Registrar

Ms Wrinch

TRIBUNAL:Member S Letch

DECISION DATE:  13 October 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – election to end assessment – no capacity for other party to alter date of election – 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

1. Mr Leftwich and Ms Wrinch are the parents of [the child], born October 2003. Mr Leftwich was assessed by the Child Support Agency (CSA) as liable to pay child support to Ms Wrinch. This matter concerns an election by Ms Wrinch on 6 May 2021 to end the child support case; Mr Leftwich considers the case ought to have ended earlier on the basis that he believes [the child] was working from January 2021 (and possibly earlier).

2. It is convenient by way of background to set out an extract from the objections officer’s decision dated 16 June 2021:

   …

   DECISION UNDER REVIEW

   Decision on 06 May 2021 to end the child support assessment for [the child] effective from 06 May 2021.

   Mr Leftwich has objected to this decision because he believes the decision is incorrect. Mr Leftwich advised that [the child] has been working since at least January 2021. Mr Leftwich advised Ms Wrinch did not declare this and was still collecting more child support than what she should have.

   …

   WE CONSIDERED THE FOLLOWING EVIDENCE IN THE DECISION

   The child support assessment for [the child] was due to end on 19 October 2021, the day before his 18^th birthday.

   Ms Wrinch contacted us on 06 May 2021, and elected to end the child support assessment for [the child] from 06 May 2021. Ms Wrinch advised that [the child] is working and earning a wage.

   On 06 May 2021, we made the decision to end the child support assessment for [the child] effective from 06 May 2021.

   On 09 June 2021, Mr Leftwich objected to this decision, his ground are stated above.

   We spoke to Ms Wrinch on 11 June 2021, and advised her of Mr Leftwich`s objection and grounds. Ms Wrinch advised [the child] was doing a school based apprenticeship, he was working only one day per week and not supporting himself, he was still going to school.

   REASONS FOR THE DECISION

   A carer entitled to receive child support can elect to end an assessment for a child from a specified day (CSA Act section 151). The specified day must be a day after the election to end the assessment is made (CSA Act section 12(4)).

   An election to end an assessment for a child under CSA Act section 151 is a 'terminating event'. When an election to end an assessment has been approved and the Registrar ends the assessment, the 'terminating event' cannot be reversed. However, either parent or any eligible carer is entitled to make a new application for an assessment.

   On 06 May 2021, we made the decision to end the child support assessment for [the child] effective from 06 May 2021.

   Mr Leftwich objected to this decision, as he does not believe he should have been assessed to pay child support for [the child] from January 2021.

   As Ms Wrinch is the carer entitled to receive child support, it can only be her election to end the child support case and the assessment must end on a date after the election is made.

   We have therefore made the decision to end the child support assessment for [the child] effective from 06 May 2021.

   Objection is disallowed.

   …

3. Mr Leftwich sought further review by the Tribunal. Mr Leftwich and Ms Wrinch participated in the Tribunal’s hearing by conference telephone.

4. The law in this area is clear. Section 151 of the Child Support (Assessment) Act 1989 (the Act) provides the following:

   Election to end administrative assessment

   (1)  A carer entitled to child support for a child may, by notice given to the Registrar, elect that the liability of a liable parent to pay or provide child support for the child to the carer entitled to child support is to end from a specified day.

   (1A)  If child support is not payable to a person for a child under a child support agreement for a day under subsection 93(1A), any party to the agreement may, by notice given to the Registrar on that day, elect that the liability of a liable parent who is a party to the agreement to pay or provide child support for the child to the person is to end from a specified day.

(2)  A notice under subsection (1) or (1A) must be given in the manner specified by the Registrar.

Note:          Section 150A provides for the Registrar to specify the manner in which a notice may be given.

1. Ms Wrinch was the carer entitled to child support. She made an election on 6 May 2021 to end the child support case from 6 May 2021. Subsection 12(4) of the Act provides as follows:

      (4)  A child support terminating event happens in relation to a child and the persons who are respectively a carer entitled to child support and a liable parent in relation to the child if:

   (a)  either of the following subparagraphs applies in relation to the child and those persons:

   (i)  the carer entitled to child support or the liable parent elects by a notice that complies with section 151 (election to end administrative assessment) that the liability of the liable parent to pay or provide child support for the child to the carer entitled to child support is to end from a specified day;

(ii)  the Registrar accepts a child support agreement made in relation to the child between the carer entitled to child support and the liable parent, and the agreement includes provisions under which the liability of the liable parent to pay or provide child support for the child to the carer entitled to child support is to end from a specified day; and

(b)  the specified day arrives.

1. Ms Wrinch’s election on 6 May 2021 gives rise to a “terminating event”. The CSA correctly and lawfully determined that the case was to end on 6 May 2021.

2. The Tribunal understood Mr Leftwich’s case. If [the child] was working, that, of itself, is not a “terminating event”; however, if he was deriving income at a level that might have rendered the child support assessment unfair, Mr Leftwich would have been at liberty to make an application for a “change of assessment” under what the CSA calls “Reason 4”. However, such an application cannot be made after the case has been terminated. Accordingly, Mr Leftwich is not able to now make a change of assessment application with a view to having the case end on an alternative basis from an earlier date.

3. Here, the CSA has correctly applied the law; the Tribunal must apply the same law. As this is the same conclusion as the objections officer, the decision under review will be affirmed.

DECISION

The decision under review is affirmed.