Marris and Marris (Child support)

[2021] AATA 2906

Marris and Marris (Child support) [2021] AATA 2906 (21 July 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/HC021365

APPLICANT:  Mr Marris

OTHER PARTIES:  Child Support Registrar

Ms Marris

TRIBUNAL:Member K Dordevic

DECISION DATE:  21 July 2021

1. The decision of the tribunal and the reasons for the decision were delivered orally on 21 July 2021.

2. The following paragraphs are the reasons for the tribunal’s decision.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – estimate of income – whether the estimate should have been backdated – no legislative provision to backdate estimate prior to application date – 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. Relevant to this application, the mother and father are the parents of one child. There has been an assessment in place since 2019. On 11 January 2021 the father lodged an income estimate of $0 for the period 11 January to 30 June 2021. His estimate was accepted on the same day. The father objected to that decision on 5 April 2021. An extension of time in which to lodge his objection was granted on 21 April 2021. On 26 April 2021 the objection was disallowed. 

2. The father lodged his application to this tribunal on 30 April 2021. The tribunal heard the matter on 21 July 2021. The parents appeared by MS Teams audio. The Child Support Registrar elected to not attend the hearing. In reaching its decision, the tribunal took into account documents provided by Child Support (folios 1 to 105and the parents sworn testimony.

3. The law relevant to this application is outlined in the Child Support (Assessment) Act 1989 (the Act).

4. Section 60 of the Act deals with income estimates. Relevant to this application it states at paragraph 60(5)(a) of the Act that the earliest state date for an must be the day on which the election is made:

   (5)  The start day for the election must be:

   (a) the day on which the parent makes the election; or

   (b) the first day of a child support period, so long as that day is not before the day referred to in paragraph (a).

1. Regulation 23(2) of the Child Support (Assessment) Regulations 2018 states that an election under section 60 of the Act is taken to have been made on the day that the election is received by Services Australia:

   (2)  An election under section 60 of the Act, or a revocation under section 62, is to be taken to have been made on the day on which the form of election or revocation is received in an office of the Human Services Department.

2. The tribunal makes the following findings. The father was employed on a full-time basis with [A named company] from 1 July to 24 September 2020. His employment was terminated as he failed to depart from [Country 1] as directed by his employer. The father contacted Child Support on 21 December 2020; during this contact he advised that he needed to update his income estimate. However, he ended the call, stating that he could not wait any longer, and so his income estimate was not lodged. The father lodged an income estimate of $0 on 11 January 2021.

3. Applying the facts to the legislation, the tribunal is satisfied that the income estimate must be accepted from 11 January 2021 and not before. There is no provision under the law that would permit the tribunal to disturb the decision under review in the manner requested by the father, that is, to accept the income estimate from an earlier date.

10.  The decision under review is affirmed.