Nalder and Nalder (Child support)

[2020] AATA 1746

Nalder and Nalder (Child support) [2020] AATA 1746 (29 April 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC017748

APPLICANT:  Mrs Nalder

OTHER PARTIES:  Child Support Registrar

Mr Nalder

TRIBUNAL:Member J Thomson

DECISION DATE:  29 April 2020

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. The Tribunal is satisfied that the application for review 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).

2. This matter concerns an application by Mrs Nalder for review of an objection decision made by the Department of Human Services – Child Support (the Department) dated 31 October 2019. This decision disallowed her objection to a Department decision dated 31 July 2019 refusing Mrs Nalder’s application for a change of assessment on the grounds commonly referred to as Reasons 4, 5, 7 and 8A, as no Reason to change the assessment had been established.

3. The matter was listed for a Telephone Directions Hearing (TDH) before the Tribunal on 24 March 2020. Both Mrs Nalder and Mr Nalder attended the hearing via conference telephone, and made submissions. The Tribunal had before it documentation provided by the Department. Both parents had copies of these documents with them at the TDH.

4. Mrs Nalder acknowledged at the TDH that the child support case with respect to [Child 1] (born 2001) ceased on 11 June 2019 when Mr Nalder removed her from school.

5. To succeed on the ground referred to as Reason 4 in her application, Mrs Nalder was required to satisfy the Tribunal that the child support assessment was unfair because of the income, earning capacity, property and financial resources of [Child 1].

6. Following discussion with the Tribunal, Mrs Nalder acknowledged and agreed that [Child 1’s] income as a junior casual employee at [Business 1] from 1 July 2018 to 10 March 2019 was $7,483 (an average of $207.60 per week over the 253 days in that period), and did not exceed the maximum rate of youth allowance payable to a child under 18 years of age living at home of at least $343.10 per week. Mrs Nalder accepted that she was unable to demonstrate that the child support assessment was unfair because of [Child 1’s] income, earning capacity and financial resources.

7. Mrs Nalder said that she had taken [Child 1] to the [specified] Centrelink office to apply for youth allowance. However, she acknowledged she had no evidence to substantiate whether [Child 1’s] application had been approved or that she had received any youth allowance payments from Centrelink.

8. Mrs Nalder also asserted that [Child 1] had also worked for [Business 2] after 10 March 2019, but acknowledged that she was unable to offer any evidence to support that assertion.

9. In relation to her application for departure from the administrative assessment on the ground that she had given money, goods or property to [Child 1], Mrs Nalder said she relied on a written agreement she had reached with Mr Nalder on 31 August 2018, a copy of which was before the Tribunal on page 10 of the Department’s papers. This document purported to record an agreement between the parents that Mrs Nalder would pay both house and contents insurances, credit card payments, insurance cover for [Child 1’s] motor vehicle, and $100 cash per month by way of child support for [Child 1].

10. This agreement was the subject of scrutiny by the Tribunal in a decision of [another Member] dated 12 June 2019, a copy of which was before the Tribunal as part of the Department’s documentation. The decision records Mrs Nalder giving evidence that she prepared this document on her iPad whilst attending at the former family home where Mr Nalder was living with [Child 1], that she printed the document, that she and Mr Nalder both signed it, and she retained a copy. [The other Member’s] decision records Mr Nalder denying he signed the document, proffering an explanation as to the manner in which his signature appeared on the document, and that Mrs Nalder had told him she had received legal advice that she was liable to meet the insurances referred to in the document, because they related to the parents’ jointly owned properties, pending resolution of their property issues. Other documents before [the other Member] at the time of the hearing indicated that Mrs Nalder’s lawyers had advised her she was liable to pay for the insurances for the properties, and Mr Nalder was to meet the mortgage payments.

11. At the TDH, Mrs Nalder acknowledged the payments she made for the house and contents insurances, the credit card payments, and other bills of Mr Nalder’s were for Mr Nalder’s benefit, and did not afford any benefit for [Child 1]. She also acknowledged the payments/deposits she had made to the joint account she and Mr Nalder conducted were to facilitate his payment of various household accounts, including their joint credit card account, until she closed the account when Mr Nalder overdrew it and she incurred consequential bank charges. Thereafter she remitted payments to [Child 1’s] [Bank 1] account from December 2018. However, she acknowledged the only evidence she had recording the payments she made to [Child 1’s] bank account were reflected in the parents’ joint [Bank 1] account [number] under the code reference “Mum” at pages 48 and 49 of the Department’s papers before the Tribunal. These pages recorded three payments on 19 November 2018, 7 December and 11 December 2018 totalling $200.

12. Following discussion with the Tribunal, Mrs Nalder acknowledged that while it was her intention to afford Mr Nalder some financial flexibility to provide support for [Child 1] by providing funds to cover insurances on the house and contents and [Child 1’s] motor vehicle, Mr Nalder and [Child 1’s] ambulance cover, most of these expenses were joint liabilities of the parents, and of no direct benefit for [Child 1].

13. In support of her intended challenge to Mr Nalder’s income used in the assessment, Mrs Nalder asserted Mr Nalder received cash payments for his work as [an occupation]. She said the evidence she relied upon to substantiate this allegation was contained in bank statements reflecting deposits of $1,000, $900, and $1,200 to his bank account during the 2017/18 financial year. However, she acknowledged she was unable to provide copies of these bank statements to support her allegation. These payments were also outside the period under consideration in the decision before the Tribunal for review.

14. Mr Nalder acknowledged he had received deposits to his bank account in amounts of $1,000, $900 and $1,200, and that these payments were repayments of a loan he made to [Child 1’s] Godfather, [Mr A], the proprietor of [Business 3], a [business] conducted by [Mr A], at a time when [Mr A] was experiencing financial difficulties in the course of the 2017/18 financial year.

15. With respect to Mrs Nalder’s case for change of assessment based on her necessary expenses for self-support, the expenses she articulated related to borrowings to cover her legal expenses, and the insurance, credit card and other household bills she paid pursuant to the agreement of 31 August 2018 referred to above. However, she was unable to offer evidence to suggest that any of these payments were of a special nature.

16. Mrs Nalder also asserted Mr Nalder’s income was over $100,000 per annum. Mr Nalder acknowledged that his income for the 2018/19 financial year was approximately $107,990. Mrs Nalder accepted this was an accurate reflection of his income.

17. In the decision under review, the objections officer noted that substituting an income of $107,990 for Mr Nalder in the assessment resulted in a reduction in the annual rate of child support payable by Mrs Nalder of $477, equivalent to an amount of $9.14 per week, or $8.56 per week if Mr Nalder’s income were considered over the entirety of the 343 days of the assessment in this case. The objections officer considered these amounts were not sufficiently significant to want to change the assessment. The Tribunal concurs with that finding.

18. In the absence of any evidence suggesting special circumstances which would make the child assessment unfair, the Tribunal considers Mrs Nalder’s application has no reasonable prospects of success.

19. The Tribunal dismisses the application for review pursuant to subsection 42B(1) of the Administrative Appeals Tribunal Act 1975.