Ridgwell and Aston (Child support)

[2018] AATA 537

Ridgwell and Aston (Child support) [2018] AATA 537 (31 January 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2017/SC012755

2017/SC012793

2017/SC012794

2017/SC012795

2012/SC012797

APPLICANT:  Mr Ridgwell

OTHER PARTIES:  Child Support Registrar

Ms Aston

TRIBUNAL:Member J Cuthbert

DECISION DATE:  31January 2018

DECISIONS:

2017/SC012755 and 2017/SC012793

The decisions under review are dismissed.

2017/SC012794, 2017/SC012795 and 2017/SC012797

The decisions under review are affirmed

CATCHWORDS
Child Support – Particulars of the assessment - Whether fixed annual rate should be reduced to the minimum rate of child support – No reasonable prospects of success – Applications for review dismissed

Child Support – Particulars of the assessment - Whether fixed annual rate should be reduced to the minimum rate of child support - Income more than the parenting payment (single) amount - Decisions 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 Ridgwell and Ms Aston are the parents of [Child 1] (born 1999). From 19 September 2006 to 18 March 2017 there was a child support assessment in place made by the Department of Human Services – Child Support (the Department) for [Child 1]. Mr Ridgwell was liable to pay the fixed annual rate of child support under section 65A of Child Support (Assessment) Act 1989 (the Assessment Act) for the following periods:

   1 December 2011 to 28 February 2013

   1 March 2013 to 31 May 2014

   1 June 2014 to 31 August 2015

   1 September 2015 to 30 November 2016

   1 December 2016 to 18 March 2017.

2. On 13 July 2017 Mr Ridgwell applied under section 65B of the Assessment Act to have the fixed annual rate of child support for each of those periods reduced to the minimum annual rate. His applications were refused on 15 July 2017.

3. On 2 August 2017 Mr Ridgwell lodged objections to the decisions made on 15 July 2017 to refuse to reduce the assessments from the fixed annual rate.

4. However, on 18 August 2017 decisions were made to amend the child support assessments using a provisional income of $104,324 from 1 December 2011 to 28 February 2013 and a provisional income of $78,888 from 1 March 2013 to 31 May 2014. As a consequence Mr Ridgwell became liable to pay annual rates of child support for those periods which were greater than the fixed annual rate.

5. On 20 September 2017 a further decision was made to amend the child support assessment from 1 December 2011 to 28 February 2013 by using Mr Ridgwell’s 2010/11 adjusted taxable income of $75,563. While his liability for those periods reduced, it remained greater than the fixed annual rate.

6. Mr Ridgwell’s objections to the decisions made on 15 July 2017 were disallowed on 6 October 2017. On 30 October 2017 he made applications to this tribunal for a review of the objection officer’s decisions.

7. The applications were numbered as follows:

   1 December 2011 to 28 February 2013              2017/SC012755

   1 March 2013 to 31 May 2014  2017/SC012793

   1 June 2014 to 31 August 2015  2017/SC012794

   1 September 2015 to 30 November 2016           2017/SC012795

   1 December 2016 to 18 March 2017                   2017/SC012797

8. Documents provided by the Department (folios 1 to 264) were made available to the tribunal and to Mr Ridgwell and Ms Aston. Mr Ridgwell attended a hearing by telephone on 31 January 2018. Ms Aston was not able to be contacted for the hearing as the telephone number recorded was no longer connected. The tribunal decided to continue with the hearing in her absence. The Child Support Registrar was not represented at the hearing.

ISSUES

1. The issue to be decided is whether Mr Ridgwell’s applications of 13 July 2017 should be granted and his annual rate of child support reduced to the minimum annual rate.

CONSIDERATION

10. The law relevant to this review is contained in the Assessment Act and the Administrative Appeals Tribunal Act 1975 (the AAT Act).

11. If a parent has an adjusted taxable income of no more than the relevant parenting payment (single) amount but did not receive income support payments during the last relevant year of income a fixed annual rate of child support applies (section 65A of the Assessment Act). A prescribed amount applies for up to three children.

12. Under section 65B of the Assessment Act an application can be made to reduce the liability to a prescribed minimum annual rate. In order for the application to be granted:

·     the parent’s current income must be no more than the relevant parenting payment (single) amount; and

·     the decision-maker must be satisfied that it would be unjust and inequitable to expect the parent to pay the fixed annual rate.

13. The term “current income” is not defined. Although it is not a requirement applications under 65B of the Assessment Act are generally made during the period in which the fixed annual rate is applied. For the purposes of section 65B the term “income” is wider than the definition of “adjusted taxable income” which is generally used in an assessment. It is defined in subsection 66A(4) of the Assessment Act as:

(a) any money earned, derived or received by the parent for his or her own use or benefit, other than money earned, derived or received in a manner, or from a source, prescribed by the regulations for the purposes of this paragraph; or

(b) a periodical payment by way of a gift or allowance, other than a payment of a kind prescribed by the regulations for the purposes of this paragraph.

14. The tribunal notes that the objection decisions made by the Department for the periods 1 December 2011 to 28 February 2013 and 1 March 2013 to 31 May 2014 have no practical effect as when Mr Ridgwell’s assessments were amended on 18 August 2017 he was no longer assessed to pay child support at the fixed annual rate. For that reason, the tribunal is satisfied that Mr Ridgwell’s applications for review 2017/SC012755 and 2017/SC012793 have no reasonable prospects of success. The tribunal dismisses those applications under section 42B of the AAT Act.

15.  Mr Ridgwell remains liable to pay a fixed annual rate of child support from 1 June 2014 to 18 March 2017. The amounts payable are $1,322 for the period 1 June 2014 to 31 August 2015, $1,352 from 1 September 2015 to 30 November 2016 and $1,373 from 1 December 2016 to 18 March 2017.

16.  Mr Ridgwell left Australia in September 2010 and returned in May 2017. He told the tribunal that he was living in [Country 1]and that he met his expenses from funds (about $60,000) that he withdrew from his superannuation in 2010. He said that he placed the funds in a bank account in [Country 1] which accrued interest of about one per cent per annum. He said that his funds ran out after about six years and that he was then supported by his wife, who has investments including a [vehicle]. Mr Ridgwell stated that he did not work while he was living in [Country 1], mainly due to the language barrier. He said that he had no other income or assets.

17.  On his return to Australia Mr Ridgwell (who had turned 65 in May 2017) made a claim for age pension. Since 27 May 2017 he has been employed by his former employer as [an occupation] for three days a week, earning $427.68 plus commission. In addition to part payment of age pension, he received the following fortnightly payments from his employer:

$977.36 to 6 June 2017

$1,338.36 to 20 June 2017; and

$1,355.36 to 4 July 2017.

18.  Mr Ridgwell told the tribunal that he continues to work and that the fortnightly payments of age pension he receives are minimal or nil, depending on his fortnightly pay. He acknowledged that he is earning about $680 a week. He said that he pays rent of $200 a week and is paying $165 a month towards his child support arrears. He stated that he is “just keeping his head above water”.

19.  Mr Ridgwell also acknowledged that he was aware of his continuing duty to support [Child 1] when he went to live in[Country 1]. He said that he had relied on his former employer to tell the Department that he was no longer working. He also said that he thought that he was up to date with his payments when he left and relied on the fact that Ms Aston was working and living in Department of Housing accommodation. He stated that he did not advise the Department of his change of address.

20.  Mr Ridgwell owes a significant amount of child support. If his application to the tribunal was successful it would not result in Ms Aston having been overpaid child support. The tribunal notes that the assessment for [Child 1] has ended and Mr Ridgwell is precluded from applying for a departure from the assessment to reduce his liability. However, if his application was successful and the assessments reduced to the minimum annual rate, Ms Aston would similarly be precluded from applying for a departure from the assessment. In that situation, and in light of Mr Ridgwell’s circumstances, both currently and in the period he lived in[Country 1], the tribunal questions if it would be unjust and inequitable to expect him to pay the fixed annual rate of child support for [Child 1] for the relevant periods.

21. However, the tribunal finds that it is unnecessary to determine that issue as at the time that he made the applications in July 2017 Mr Ridgwell’s “current income” was about $680 a week (or $35,000 a year), far more than the relevant parenting payment (single) amount. For that reason his applications made under sections 65B of the Assessment Act should be refused.

DECISION

2017/SC012755 and 2017/SC012793

The decisions under review are dismissed.

2017/SC012794, 2017/SC012795 and 2017/SC012797

The decisions under review are affirmed.