Polson and Byrnes (Child support)

[2018] AATA 336

Polson and Byrnes (Child support) [2018] AATA 336 (16 January 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2017/SC012842

APPLICANT:  Mr Polson

OTHER PARTIES:  Child Support Registrar

Ms Byrnes

TRIBUNAL:Member W Kennedy

DECISION DATE:  16 January 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS

Child support – Particulars of the administrative assessment – Estimate election – Decision under review affirmed

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.

REASONS FOR DECISION

BACKGROUND

1. Mr Polson and Ms Byrnes are the parents of [Child 1] and [Child 2], in respect of whom there is a child support assessment.  This application for review concerns the income of Ms Byrnes used in the child support assessment.

2. From 1 July 2016 the child support assessment was based on Ms Byrnes’ 2016/17 estimated income of $40,093.00.  On 7 June 2017 Ms Byrnes contacted the Child Support Agency of the Department of Human Services (the Department) to discuss her expected income and the impact on the assessment of child support.  Following that discussion the Department issued a new child support assessment based on an adjusted taxable income (ATI) of $130,857.00 for Ms Byrnes with effect from 1 April 2017.

3. On 19 June 2017 Ms Byrnes objected to the decision of 7 June 2017 to use an ATI for her of $130,857.00 in the assessment from 1 April 2017, saying that her income had been vastly exaggerated.  It appears that the Department advised Ms Byrnes that the matter could be resolved through administrative action and Ms Byrnes withdrew her objection.  When it became apparent that the matter could not be resolved administratively the Department advised Ms Byrnes that she would have to object again and, because it was now out of time, she would also have to apply for an extension of time (EOT) to lodge her objection.  On 2 August 2017 Ms Byrnes again lodged an objection and an application for an EOT and on 3 August 2017 the EOT was granted.  On 19 October 2017 a Department Objections Officer decided to allow Ms Byrnes’ objection, finding that the ATI of $130,857.00 was applied to the child support assessment because “the Child Support representative may have misunderstood Ms Byrnes’ intention”.

4. On 6 November 2017 Mr Polson applied to this Tribunal for a review of the decision of the objections officer.  The application was heard and determined on 16 January 2018.  Mr Polson and Ms Byrnes both attended by conference telephone and gave their evidence under affirmations.  The parties had access to the papers provided by the Department, which were numbered 1 to 137.  The Child Support Registrar did not attend the hearing and was not represented.

ISSUES

1. In this case the Tribunal has to decide whether an ATI of $130,857.00 for Ms Byrnes should be applied to the child support assessment.

CONSIDERATION

1. The law that applies to this application is found in the Child Support (Assessment) Act 1989 (the Act).  Under section 60 of the Act, a parent may lodge an estimate of their income and, under certain circumstances, the Department may accept that estimate for child support assessment purposes. 

2. At the hearing Ms Byrnes said that when she contacted the Department on 7 June 2017 she advised that her income was likely to be between $60,000.00 and $65,000.00 due to an increase in overtime from April 2017.  The notes made by the Department officer at the time (folio 12) fully support Ms Byrnes’ evidence.  It appears that the officer decided to amend the estimate by adding $5,000.00 per fortnight to Ms Byrnes’ income for the remainder of the financial year.  It is not apparent that Ms Byrnes asked for this to be done.  The result was that the amount was automatically annualised and an estimated ATI of $130,857.00 was applied to the assessment from 1 April 2017.  This did not reflect Ms Byrnes’ income, earnings or resources.

3. At the hearing Mr Polson said that he thought Ms Byrnes’ income was higher than the amount used in the child support assessment.  It was explained to Mr Polson that the decision before the Tribunal was whether or not Ms Byrnes had made an election to have an estimate used in place of the current ATI.  Mr Polson was advised that if he wished to assert that Ms Byrnes’ income is higher than what is used in the assessment he should discuss with the Department the possibility of applying for a change of assessment.

4. The Tribunal finds that Ms Byrnes did not make an election under section 60 of the Act.  She merely discussed her income with the Department and the Department’s officer misunderstood the substance of the discussion.  As no election was made there was no action available to the Department and the purported “estimated ATI" of $130,857.00 is no more than an administrative error.  The Objections Officer was correct to allow the objection. 

DECISION

The decision under review is affirmed.