McMahon and McMahon (Child support)

[2019] AATA 4880

McMahon and McMahon (Child support) [2019] AATA 4880 (20 September 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC016179

APPLICANT:  Mr McMahon

OTHER PARTIES:  Child Support Registrar

Ms McMahon

TRIBUNAL:Member S Letch

DECISION DATE:  20 September 2019

CATCHWORDS

CHILD SUPPORT – dismissal of application for review – departure

determination – no reasonable prospect of success – application for review

dismissed

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.

DISMISSAL OF APPLICATION FOR REVIEW:

1. This application concerns an objection decision dated 6 March 2019 which affirmed a “change of assessment” decision on 2 January 2019 by the Child Support Agency (CSA). In that decision, it was determined there was no basis to amend earlier decisions setting Mr McMahon’s income at a certain level until the end of 2020.

2. Mr McMahon has made a number of applications to this Tribunal. In a decision dated 25 August 2017, it was decided that, for the period 1 June 2016 to 31 December 2020, Mr McMahon’s adjusted taxable income was varied to $178,945. Mr McMahon made another application for departure, which was refused on the basis there had been no material change. In another decision of this Tribunal, Member Lewis decided on 6 August 2018 to affirm the decision, finding there had been no material change. In the course of the Member’s decision, the following was observed at [29]:

   Overall, taking into account the totality of the evidence, while the fortunes of the Company have declined, the tribunal was satisfied that the value of Mr McMahon’s income, property and financial resources at the date of the current application was at least $178,000.  The tribunal considers this is a conservative amount as it does not take into account the value of retained earnings which may not have already been brought to account in previous administrative assessments.  Given that Mr McMahon continues to have access to financial resources comparable to the value determined in the previous departure, the tribunal was not persuaded that there has been a material change in Mr McMahon’s circumstances.  The 2018 profits and revenue of the Company have substantially declined; however this is balanced by the continued availability of Mr McMahon’s wages and other resources to meet his child support obligations. 

3. Mr McMahon made another departure application on 1 November 2017, leading to the current matter before the Tribunal. The objection officer observed that Mr McMahon again alleged a downturn in business fortunes and medical reasons for a reduction in his income. The objections officer made the following observation:

   It has been previously determined Mr McMahon remains in financial control of his business operation, despite his claims of an inability to undertake ongoing employment. Whilst Mr McMahon has been provided with every opportunity to support his application, he has not substantiated how his inability to work is related to his current health or wellbeing. Mr McMahon has not sold the business operation, has not relinquished his access to the business accounts and his actions to remove himself as a direction of [Company name] P/L coincides with enforcement action taken by the Department for the child support arrears.

4. The Tribunal observes that, according to the CSA papers, Mr McMahon owed around $15,000 in child support arrears as of April 2019.

5. Following preliminary proceedings before the Tribunal, the Tribunal wrote to Mr McMahon (via email) on 11 June 2019 in the following terms:

   I have spoken to Ms McMahon who said your property settlement happened 3-4 years ago. Your property in Queensland had to be sold to pay out your home so there were no funds remaining upon which you could now be supporting yourself.

   She said she knows you are still attending your work office daily. You have told the children a couple times that you had to go to Tasmania for work.

   She said only a while ago few days ago you texted offering to pay $1,500 per month child support and said that was her last chance.

   She said she knows your business is doing well as it bought new motor vehicles in the last year.

   She said you still have a company car and phone. She said you have previously changed the directors of the company several times.

   She said you were earning $140,000 per annum when you separated and she would agree to an assessment based on that income, which would result in an assessment of $26,212 per annum ($2,184 per month).

   Please advise whether you will agree to the above outcome proposed by Ms McMahon.

   If so the application can be resolved on that basis. If not, I will refer the application to a tribunal member to consider whether it should be dismissed as no evidence has been provided to verify there has been any significant change in your circumstances since that previous tribunal decision was made on 6 August 2018.

6. The Tribunal did not receive a response; the matter was listed for a hearing on 20 September 2019. Mr McMahon and Ms McMahon participated in the hearing by conference telephone.

7. During the hearing, the Tribunal indicated to Mr McMahon that it was intending to dismiss his application on the basis that it had no reasonable prospects for success on the currently available evidence. Mr McMahon denied receiving the email of 11 June 2019; he also made it clear he had no intention of supplying any medical evidence in support of his claims.

8. The Tribunal considers it more likely Mr McMahon would be worse off if the application were permitted to proceed on the available evidence; the Tribunal agrees with the observations of Member Lewis in August 2018 that the assessment of Mr McMahon’s income appeared conservative.

9. The Tribunal is satisfied that the application has no reasonable prospect of success and dismisses the application for review pursuant to subsection 42B(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act).