Romero and Romero (Child support)

[2020] AATA 3655

Romero and Romero (Child support) [2020] AATA 3655 (16 July 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/BC019185

APPLICANT:  Ms Romero

OTHER PARTIES:  Child Support Registrar

Mr Romero

TRIBUNAL:Member S Letch

DECISION DATE:  16 July 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – estimate of income - whether the estimate should have been refused - estimate of income accepted - decision 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 DECISION

1. Ms Romero and Mr Romero are the parents of [the child].

2. On 19 August 2019, Mr Romero supplied to the Child Support Agency (CSA) an estimate for his 2019/20 adjusted taxable income. It is useful to set out an extract from the objections officer decision dated 9 May 2020 by way of background:

   DECISION UNDER REVIEW

   The decision made on 3 October 2019 to accept an estimate of income of $6,947 (annualised to $7,999) from Mr Romero and apply this to the child support assessment from 19 August 2019 to 30 June 2020.

   Ms Romero has objected to this decision because Mr Romero has a history of earning large amounts of money for a year or two then takes a year off work so that she has to pay him maintenance. Ms Romero stated Mr Romero finished his employment at the end of 2015/2016 financial year and chose not to be re-employed until Easter 2017. Ms Romero stated if people chose to live off their savings and not work then the co-parent should not have to pay maintenance and Mr Romero chooses to be unemployed and the assessment should be based on his 2019 income as this is a true indication of what Mr Romero is capable of earning if he chooses to work.

   …

   REASONS FOR THE DECISION

   From 1 November 2018, we used Mr Romero’s ATI for the financial year 2017/2018 of $173,385 to calculate the child support payable by Mr Romero to Ms Romero for [the child].

   In this case, Mr Romero can make an income estimate for the 2019/2020 financial year if his current income is 85% or less than his ATI of $173,385.

   Mr Romero lodged an estimate of income of $7,999 for the 2019/2020 financial year on 19 August 2019 and therefore, he must inform us of his estimated income for each income component amount for the 2019/2020 financial year.

   Based on this, we are satisfied that Mr Romero’s current income of $7,999 per year is 85% or less than his 2018/2019 ATI of $173,385. Therefore, we made the decision to accept Mr Romero’s estimate for the 2019/2020 financial year.

   On 29 November 2019, Ms Romero lodged an objection.

   Mr Romero has not supplied evidence and therefore, we will rely on the statements provided by Ms Romero.

   Ms Romero stated that Mr Romero has a history of working for two years on large incomes and then decides to take a year off and she is then assessed to pay him child support. Mr Romero stated this is unfair and it is Mr Romero’s choice not to work when he clearly has the capacity.

   There is no evidence to support that Mr Romero is in receipt of an adjusted taxable income greater than $7,999 from 19 August 2019.

   Based on the available evidence, we are satisfied that estimated income lodged by [Mr Romero] of $7,999 for the financial year 2019/2020 is correct.

   The objection is disallowed.

3. Ms Romero and Mr Romero participated in the Tribunal’s hearing by conference telephone. Ms Romero’s contentions during the hearing were consistent with her written application to the Tribunal:

   Mr Romero has been working and he is capable of working. It is impossible to get evidence of him working as his skills are in IT. [Redacted] said he is working. He is [Nationality] and can have income going overseas. We do not want to lodge any more forms with CSA as Mr Romero is using the agency to abuse Ms Romero and family members. The supporting documents required for CSA to adjust income have Mr Romero invading our privacy. E.g. Ms Romero owns (with a $100k debt) in her own name 1/6 of a land valued around $1m with companies owned by family members. Mr Romero states that the land is worth $73m which can be proven is ridiculous however he further request details of companies her mother and uncle own. He is verbally and emotionally abusive. We have had 12 years of financial controlling abuse from Mr Romero. Mr Romero uses CSA to abuse Ms Romero and family members. It has to stop.

4. Section 63AA of the Child Support (Assessment) Act 1989 provides that where a person makes an estimate election, and the Registrar is satisfied that the amount worked out under that subsection is less than the amount that the Registrar considers is likely to be the parent’s actual adjusted taxable income for the year of income to which the income election relates, the Registrar may refuse to accept the income election.

5. Here, there is no evidence to suggest Mr Romero’s actual adjusted taxable income would be likely more than his estimated amount. Mr Romero’s evidence at the hearing was to the effect that his estimate was accurate for the (now completed) 2019/20 financial year.

6. Indeed, Ms Romero did not claim that Mr Romero’s actual adjusted taxable income would exceed his estimate; rather, her position is that she speculates that Mr Romero may have undisclosed financial resources, and is deliberately choosing not to work for the purposes of impacting the child support assessment.

7. The Tribunal has a limited task in this review to examine whether the estimate provisions should apply; there being no evidence that Mr Romero’s estimate was likely to be lower than his actual adjusted taxable income, the CSA correctly accepted his estimate election under the formula regime.

8. As explained to Ms Romero during the hearing – and as apparently suggested by the CSA, according to their materials – Ms Romero can apply to the CSA for a departure from the formula arrangements (or as the CSA describes it, a “change of assessment”), including on the basis that Mr Romero should be assessed on his capacity to earn and not on his actual adjusted taxable income. Ms Romero will need to apply directly to the CSA; she can ultimately return to the Tribunal if dissatisfied with any future CSA objection decision.

9. As the Tribunal has reached the same conclusion as the objections officer, the decision under review will be affirmed.

DECISION

The decision under review is affirmed.