Pulaski and Pulaski (Child support)

[2020] AATA 5831

Pulaski and Pulaski (Child support) [2020] AATA 5831 (1 December 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2020/BC019908

2020/BC019929

APPLICANT:  Mr Pulaski

OTHER PARTIES:  Child Support Registrar

Ms Pulaski

TRIBUNAL:Member J D'Arcy

DECISIONS DATE:  1 December 2020

DECISIONS:

The decisions under review are set aside and the matters are sent back to the Child Support Registrar for reconsideration in accordance with the direction that Mr Pulaski’s income estimates for the 2017 and 2018 financial years should be reconciled against his taxable incomes for those years as provided by the Australian Taxation Office.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – estimate reconciliation – identity fraud resulting in incorrect estimate reconciliation – decision set aside and sent back with direction to reconcile estimates of income

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

BACKGROUND

1. Mr Pulaski has requested the Administrative Appeals Tribunal (the tribunal) to review the decisions of Services Australia – (referred to as Child Support and Centrelink in this decision) concerning the reconciliation of his income estimates for the 2017 and 2018 financial years.

2. In summary, Mr Pulaski is seeking a review of the decisions to include payments of disability support pension in the assessment of his taxable incomes because he claims he was not receiving any Centrelink payments in the 2017 and 2018 financial years.

3. 2020/BC019908 - 2017 financial year: On 15 March 2017 Mr Pulaski provided an income estimate of $56,557 for part of the 2017 financial year, which was accepted on 5 April 2017.

4. On 8 August 2019 the Child Support Registrar (the Registrar) issued a notice about new taxable income amounts for Mr Pulaski for the 2017 and 2018 financial years based on information received from Centrelink that he was receiving a disability support pension. On 20 August 2019 Mr Pulaski responded that he had never received the Centrelink payments attributed to him.

5. The Registrar subsequently amended Mr Pulaski’s 2017 taxable income amount to $89,142, based on his taxable income of $67,744 provided by the Australian Taxation Office (ATO), and reported payments of disability support pension of $21,398.

6. On 8 August 2019 the Registrar reconciled Mr Pulaski’s income estimate of $56,557 for the 2017 financial year against his total taxable income of $89,142. This reconciliation process resulted in child support arrears of $3,813.95.

7. 2020/BC109929 - 2018 financial year: On 9 June 2017 Mr Pulaski provided an income estimate of $57,357 for the 2018 financial year, which was accepted on the same date.

8. Following a notice issued on 8 August 2019 the Registrar assessed his 2018 taxable income as $92,723, based on his taxable income of $72,146 provided by the ATO and reported payments of disability support pension of $20,577.

9. On 8 August 2019 the Registrar reconciled Mr Pulaski’s income estimate for the 2018 financial year of $57,357 against his total taxable income of $92,723. This reconciliation process resulted in child support arrears of $6,961.10.

10. Mr Pulaski objected to both decisions stating that he had not received any disability support pension payments from Centrelink in the 2017 and 2018 financial years. On 25 August 2020 Child Support disallowed his objections on the basis of Centrelink’s advice that Mr Pulaski was receiving disability support pension in the 2017 and 2018 financial years.

11. On 22 September 2020 Mr Pulaski lodged two applications for review to this tribunal.

12. On 1 December 2020 the tribunal discussed the applications for review with Mr Pulaski and his partner, [named], by telephone.

13. Ms Pulaski was not available for the hearing when the tribunal member called her at 10:30am. Pursuant to paragraph 40(1)(b) Administrative Appeals Tribunal Act 1975, the tribunal proceeded in the absence of Ms Pulaski as she had reasonable notice of the proceeding.

14. The Agency provided the tribunal and the parties with the subsection 37(1) of the Administrative Appeals Tribunal Act 1975 statement and documents – 763 pages for 2020/BC019908 and 763 pages for 2020/BC109929. Ms Pulaski provided additional documents marked B1 to B4.

ISSUES

1. The issue to be decided in this application is whether the Child Support Registrar’s decision to assess Mr Pulaski’s total taxable incomes at $89,142 for the 2017 financial year and at $92,723 for the 2018 financial year; and to reconcile his estimates against those amounts was correct.

Mr Pulaski’s Evidence and Relevant File Evidence

1. Mr Pulaski advised that he last received payments of disability support pension in 2012. He was working as [an occupation 1] during the 2017 and 2018 financial years and earnings from his employment were his only source of income.

2. Mr Pulaski explained that in 2017 his earnings had been garnisheed. On 28 March 2017 he contacted Child Support and was notified that payments of disability support pension had been included in the assessment of his taxable income. He advised that he was not receiving a disability support pension (folio 49). The case officer advised him to contact Centrelink. File notes indicate that the case officer then contacted Centrelink and was advised that the recipient, purporting to be Mr Pulaski, lived at a [Town 1] address.

3. Mr Pulaski contacted Child Support again on 5 April 2017 advising that he had never lived in [Town 1].

4. Mr Pulaski then contacted Centrelink who notified him that his Centrelink correspondence was being sent to a [Town 1] address and the payments of disability support pension were made to a [Bank 1] bank account. Mr Pulaski adamantly stated that he had never lived at [Town 1] and has never held a [Bank 1] account. Mr Pulaski provided emails dated 10 August 2020 and 19 August 2020 from [Bank 1] which confirmed that he does not and has never held a [Bank 1] account.

5. In 2018 Mr Pulaski returned to Centrelink because the issues about the inclusion of a disability support pension for his child support assessments were ongoing. He spoke with a supervisor by the name of “[name]” at the [Town 2] office who gave him a card which would allow him to fast track any further visits to Centrelink and ensure that he would not have to repeat his story. He contacted Child Support again on 3 October 2018 (folio 160).

6. Mr Pulaski made contact with an officer from Child Support on 22 August 2019 who made the following file note about Mr Pulaski’s claim that he did not receive disability support pension:

   I did discuss this matter with Centrelink Fraud officer [Officer A] who confirms that this is the case of identity fraud (folio 449).

7. On 28 November 2019 Mr Pulaski received a letter from a Centrelink Manager, [Officer B], in the following terms:

   This is confirm (sic) that DHS has spoken to Mr Pulaski in person over the past few years in relation to anomalies in his records.

   I can confirm in the last 13 months I have personally dealt with Mr Pulaski on four occasions where I have sat down with him at my desk.

8. Mr Pulaski received a letter dated 3 February 2020 about a fraud investigation from [Officer C], Investigator, Taskforce Integrity and Fraud Investigation Branch/Services Australia concerning the witness statement that he had provided for the fraud investigation concerning payments of disability support pension to a person purporting to be Mr Pulaski who lived at a [Town 1] address (folio 674).

9. In a file note dated 31 March 2020 an officer from Child Support made the following file note about a contact with [Officer C]:

   Contact may need to be made with this officer re the fraud investigation as Mr Pulaski has advised that she has advised that she cannot provide anything in writing to him as it is still an active investigation and criminal matters pending (folio 696).

CONSIDERATION

1. The law relevant to this decision is contained in the Child Support (Assessment) Act 1989 (the Assessment Act). A person’s child support liability is determined using a child support formula which takes into account a number of factors including the adjusted taxable incomes of the parents, which is the taxable income from the previous tax year that ended before the start of the child support period (plus any supplementary amounts).

2. Section 60 of the Assessment Act allows a person to lodge an income estimate. The period covered by the estimate commences on the day on which the person makes the estimate or the day on which the child support period commences, whichever is the later. The period ends at the end of the financial year.

3. Section 64 applies where the Registrar has ascertained the parent’s adjusted taxable income for the relevant income year and reconciles the parent’s estimate against the adjusted taxable income. Subsection 64(3) allows for reconciliation where a parent has provided an estimate for a part year of income as Mr Pulaski did in the 2016/2017 financial year; and subsection 64(2) allows for reconciliation where a parent has provided an estimate for a full year of income, as Mr Pulaski did in the 2017/2018 financial year.

4. The tribunal finds that the Registrar has erred in including payments of disability support pension in Mr Pulaski’s adjusted taxable incomes for the 2017 and 2018 financial years because there is a significant amount of compelling evidence which indicates that Mr Pulaski did not receive payments of disability support pension during those periods, as follows:

• According to Centrelink, the payments of disability support pension were made to a person who lived in [Town 1]; and the tribunal accepted Mr Pulaski’s evidence that he had never resided in that suburb.

• According to Centrelink, the payments were made to a [Bank 1] account; and correspondence from the [Bank 1] indicates that Mr Pulaski does not and has never held an account with that bank.

• Mr Pulaski has provided a letter from [Bank 2] confirming the accounts that he holds with that bank. He has also provided his bank statements for the 2017 and 2018 financial years which show income from employment only. There is no evidence of payments of disability support pension.

• There is evidence from a Centrelink Manager that Mr Pulaski repeatedly attempted to raise the issue of him being attributed with payments of disability support pension with Centrelink.

• There is evidence of an ongoing fraud investigation and possible criminal matters pending concerning the payment of disability support pension that was purportedly paid to Mr Pulaski.

• There is evidence on the Centrelink file of references to possible identity theft.

1. The tribunal found Mr Pulaski to be a highly credible witness who gave his evidence in a straightforward manner. His persistence in pursuing the issue of payment of a disability support pension in the 2017 and 2018 financial years with both Child Support and Centrelink over three and a half years is also compelling evidence that he has not received the payments.

2. On the basis of the above evidence, the tribunal was not satisfied that the adjusted taxable income amounts determined by the Registrar, which included the disputed payments of disability support pension, were correct because of the compelling evidence that Mr Pulaski did not receive the payments.

3. Mr Pulaski’s estimates for the 2017 and 2018 financial years should be reconciled with the adjusted taxable incomes based on the taxable incomes provided by the ATO; and no amounts of disability support pension should be included.

DECISIONS

The decisions under review are set aside and the matters are sent back to the Child Support Registrar for reconsideration in accordance with the direction that Mr Pulaski’s income estimates for the 2017 and 2018 financial years should be reconciled against his taxable incomes for those years as provided by the Australian Taxation Office.