Oldridge and Emery (Child support)

[2022] AATA 4998

Oldridge and Emery (Child support) [2022] AATA 4998 (22 November 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2022/PC024406, 2022/PC024431 and 2022/PC024432

APPLICANT:  Mr Oldridge

OTHER PARTIES:  Child Support Registrar

Ms Emery

TRIBUNAL:Member P Jensen

DATE OF DECISIONS:                   22 November 2022

DECISIONS:

The decisions under review are affirmed.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – whether the adjusted taxable incomes for past periods for the liable parent should be changed –  decisions 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 DECISIONS

1. Mr Oldridge and Ms Emery are the parents of three children. A child support case was registered with the Child Support Agency (“the CSA”). It ended on 20 April 2021.

2. The Child Support (Assessment) Act 1989 (“the Act”) provides for an administrative assessment of child support payable. It uses a formula which contains variables such as the parents’ adjusted taxable incomes and their percentages of care for the children.

3. From 1 November 2018 to 31 August 2019, the administrative assessment was based, in part, on Mr Oldridge’s provisional 2017-18 adjusted taxable income of $149,841.

4. From 1 September 2019 to 31 August 2020, the administrative assessment was based, in part, on Mr Oldridge’s provisional 2018-19 adjusted taxable income of $153,956.

5. From 1 September 2020 to 20 April 2021, the administrative assessment was based, in part, on Mr Oldridge’s provisional 2019-20 adjusted taxable income of $157,929.

6. The CSA’s decisions to use provisional incomes were made pursuant to section 58 of the Act.

7. In October and November 2021, Mr Oldridge belatedly lodged his 2017-18, 2018-19 and 2019-20 tax returns. His adjusted taxable incomes were $126,880, $88,704 and $132,306 respectively. Section 58A of the Act relevantly provided that, in respect of each adjusted taxable income, if “circumstances prescribed by the regulations for the purposes of this section apply in relation to the parent”, the CSA was required to amend the administrative assessment by replacing Mr Oldridge’s provisional adjusted taxable income with his actual adjusted taxable income. In respect of each adjusted taxable income, the CSA decided to not amend the administrative assessment. Mr Oldridge belatedly objected to those three decisions. The CSA granted his three applications for extensions of time in which to object. His three objections were disallowed. He promptly applied to the Tribunal for further review. I heard the matters on 22 November 2022. Mr Oldridge gave sworn evidence via an MS Teams audio link. Ms Emery did not participate in the hearing.

8. The reference in section 58A of the Act to “the regulations” is a reference to regulation 11 of the Child Support (Assessment) Regulations 1988 which relevantly states:

   For the purposes of section 58A of the Act, the following circumstances are prescribed in relation to a parent who was unable to provide information about the parent’s adjusted taxable income to the Registrar at the time the relevant administrative assessment was made:

   (a)one or more of the following applied in relation to the parent at the time:

   …

   (ii)the parent had a serious illness or injury;

   …

   (vi)there was some other exceptional circumstance that prevented the parent from providing the information;

   (b)the Registrar confirms that the parent was unable to provide the information at that time because of a circumstance mentioned in paragraph (a);

   (c)the parent later provides the information to the Registrar as soon as is practicable in the circumstances.

9. Paragraph 11(a) lists six matters. At the hearing, Mr Oldridge confirmed that the only potentially applicable matters were those listed in subparagraphs 11(a)(ii) and (iv).

10. At all relevant times, Mr Oldridge was in full-time employment and he also managed what appears to have been a relatively small [business]. There were a number of ways in which Mr Oldridge could have provided the CSA with information about his adjusted taxable incomes. For example, he could have provided his payslips and annual income statements and his business’s financial statements. He claimed that the CSA provided him with incorrect information concerning the way in which it would assess his income from his business. It is not clear why, even if that occurred, it would have delayed his provision of information concerning his adjusted taxable incomes. Neither the CSA nor Mr Oldridge have file notes of any such incorrect information being provided. However, I do not consider it necessary to make findings of fact in respect of that matter. Another way of informing the CSA of one’s adjusted taxable income is by lodging the relevant tax return, and I will confine my analysis to Mr Oldridge’s reasons for not lodging his tax returns promptly or at least prior to October / November 2021. In my opinion, confining my analysis in that way is unduly favourable to Mr Oldridge, but it is sufficient for present purposes.

11. In support of his claim that he was unable to lodge his 2017-18 tax return by 1 November 2018, his 2018-19 tax return by 1 September 2019 and his 2019-20 tax return by 1 September 2020, and that lodging those tax returns in October / November 2021 constituted lodgement “as soon as is practicable in the circumstances”, Mr Oldridge provided some medical evidence. He consulted a general practitioner on 28 April 2014. The doctor noted that Mr Oldridge reported insomnia, stress at work and anxiety, and he declined medication. Mr Oldridge consulted a general practitioner on 9 February 2016. The doctor diagnosed depression and anxiety. Mr Oldridge consulted a general practitioner on 7 December 2016. The doctor noted some physical ailments and “some stressful work”. Mr Oldridge also provided an undated patient assessment. At the hearing, Mr Oldridge indicated that it was produced in 2015 or 2016. (Mr Oldridge also confirmed that he had received the hearing papers but he did not have them with him for the hearing.) An unidentified person with unidentified qualifications diagnosed Mr Oldridge as suffering from “Anxiety Disorder with Depressed Mood + Adjustment Disorder”. There is no medical evidence of Mr Oldridge’s mental state from 2017 onwards.

12. Mr Oldridge provided a letter dated 8 February 2017 from a general practitioner. The doctor refers to severe pain in Mr Oldridge’s right leg “for the last year”. Mr Oldridge also provided a letter dated 30 November 2018 from a general practitioner. The doctor refers to pain in Mr Oldridge’s left shoulder.

13. Overall, the medical evidence, taken at its highest, supports a view that Mr Oldridge had a serious illness or injury during 2016 and early 2017, namely the illness or injury relating to his right leg. That period significantly predates the period in question.

14. Mr Oldridge also effectively submitted that the demands of work, the stress and anxiety surrounding his separation from Ms Emery and related matters, and the lack of support from the CSA (as perceived by Mr Oldridge) constituted exceptional circumstances that prevented him from informing the CSA of his 2017-18, 2018-19 and 2019-20 adjusted taxable incomes promptly or prior to October / November 2021.

15. Against the evidence that Mr Oldridge relied upon is the fact that, at all relevant times, he was in full-time employment. He stated that his employer was supportive and accommodating of his various needs and limitations. He did not provide any supporting evidence on that issue. He provided one payslip for the fortnight ending 24 March 2019 which showed that he was paid for his usual 76 hours of work per fortnight. He had accrued 178 hours of annual leave (which is more than four weeks of leave), 182 hours of long service (which is more than four weeks of leave) and 314 hours of sick leave (which is more than eight weeks of leave). I consider his capacity to maintain full-time employment to be the most reliable evidence of his general capacity to attend to his various responsibilities. His written submissions included the following: “Despite my tax returns not being completed, my accountant was not overly concerned and just stated that he was ready when I was.” To state the obvious, Mr Oldridge’s accountant was not under a legal obligation to lodge Mr Oldridge’s tax returns by their due dates; it was Mr Oldridge’s legal obligation to ensure that that occurred. The fact that Mr Oldridge uses the services of an accountant simply reinforces the view that at all relevant times, Mr Oldridge had the capacity to lodge his tax returns promptly or at least by the due dates. He was not suffering from a serious illness or injury that prevented him from doing so. There were not exceptional circumstances that prevented him from doing so. It follows that the CSA’s decisions are correct.

DECISIONS

The decisions under review are affirmed.