Sammons and Sammons (Child support)

[2021] AATA 470

Sammons and Sammons (Child support) [2021] AATA 470 (2 February 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC020227

APPLICANT:  Mr Sammons

OTHER PARTIES:  Child Support Registrar

Ms Sammons

TRIBUNAL:Member K Buxton

DECISION DATE:  2 February 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – whether a fixed annual rate of child support should not apply – the application for fixed annual rate not to apply should be refused – 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

BACKGROUND

1. Mr Sammons and Ms Sammons are the parents of [Child 1] in respect of whom Mr Sammons has been assessed to pay child support to Ms Sammons.

2. On 7 April 2020 Mr Sammons reported to the CSA that he was no longer working and the Child Support Agency (CSA) recorded Mr Sammons’s income estimate as $0 per annum and notified him that this decision had been made.

3. Where the paying parent has a low taxable income, the child support legislation provides for a fixed rate of child support to apply in certain circumstances. A parent may request that the fixed annual rate not apply in certain circumstances (and that a lower, minimum, rate apply instead) and, if that request is accepted, the Registrar can determine the date from which that rate ceases to apply. On 7 April 2020, after lodging his income estimate, Mr Sammons discussed with the CSA the prospect that the fixed annual rate was not be applied to the child support case. The CSA then decided to apply the minimum annual rate of child support of $435 per annum for [Child 1] for the period 7 April 2020 to 30 June 2020.

4. Ms Sammons objected to the CSA’s decision and her objection was allowed. A decision was substituted to refuse to find that the fixed annual rate was not apply to the assessment from 7 April 2020.

5. Mr Sammons applied to the tribunal for review of that decision. The tribunal hearing took place on 2 February 2021. In reaching its decision, the tribunal has considered the sworn evidence given by Mr Sammons and Ms Sammons, who both participated in the hearing by telephone, the subsection 37(1) documentation provided by the CSA, marked Exhibit 1, and documents provided by Mr Sammons, marked Exhibit A.

CONSIDERATION

1. The relevant provisions are contained in Part 5, Division 8 of the Child Support (Assessment) Act 1989 (the Act). Section 65A of the Act provides for low income parents who are not in receipt of income support payments to be assessed to pay a fixed annual rate of child support where, as here, the paying parent does not have at least shared care of the child or children. The fixed annual rate would ordinarily have commenced to apply to the child support case from 7 April 2020 at a time when Mr Sammons had ceased working but had not yet applied for an income support payment such as JobSeeker or parenting payment. The tribunal notes that Mr Sammons did apply for JobSeeker shortly thereafter.

2. A parent may apply, under section 65B of the Act, for the fixed rate not to apply to the child support case where evidence is provided by that parent to demonstrate:

   a.The parent’s income is less than the pension PP (single) maximum basic amount; and

   b.It would be unjust and inequitable to expect him or her to pay the fixed amount.

3. Mr Sammons must therefore demonstrate that his income was less than $19,981, being the maximum rate of parenting payment, from 7 April 2020 and that it would be unjust and inequitable for the fixed rate to apply. The material provided by the CSA demonstrates that Mr Sammons resigned from his previous employment in April 2020. Mr Sammons stated that he subsequently applied for and was granted JobSeeker payments. He stated that the rate, including the COVID-19 supplement, was about $1,200 per fortnight and he was granted these payments roughly three to four weeks after ceasing work. The CSA’s records show that Mr Sammons received a total of about $5,000 in such payments from April 2020 to June 2020 (about $22,000 when annualised across that period of just less than three month). Prior to this, his income from employment has been substantially higher. The tribunal finds that, from 7 April 2020, Mr Sammons did not satisfy the statutory requirement that his income was less than the maximum parenting payment basic amount. The tribunal notes that Mr Sammons accepted, during the hearing, that this was the case.

4. Mr Sammons stated that he had not intended to lodge an income estimate of $0 and was told that when his JobSeeker payments began his child support case would update automatically. However, the child support legislation required Mr Sammons, and not the CSA, to ensure that income details used in the child support case were correct and, if estimated income was being used, to provide updated details if that income changed. The correspondence from the CSA to Mr Sammons in the CSA bundle clearly sets out this obligation.

10.  On 31 August 2020 the CSA considered a departure application lodged by Ms Sammons and determined that Mr Sammons’s income for child support purposes was to be set at about $88,000 from 7 April 2020 to 31 August 2023 as a result of Mr Sammons’s income, financial resources and earning capacity. It does not appear from the material provided by the CSA that either party has objected to that decision and both parents confirmed this during the hearing. In any event, there is no evidence from which the Tribunal would determine that it was unjust and inequitable to expect Mr Sammons to pay the (fixed) administratively assessed rate of child support. Further, as at the date of the tribunal’s decision in this review, the administrative assessment is no longer to be utilised for the calculation of child support from 7 April 2020 as that assessment has been departed from as a result of the 31 August 2020 decision. Mr Sammons indicated during the hearing that he intended to object to that decision and seek an extension of time within which to do so.

CONCLUSION

11.  The  tribunal is not satisfied that Mr Sammons’s income from 7 April 2020 was less that the pension PP (single) maximum basic amount, nor would the tribunal be satisfied that it would be unjust and inequitable for the fixed rate to apply in relation to child support for [Child 1] from 7 April 2020. The tribunal is therefore satisfied that that the fixed annual rate of child support is be applied to his case and, to the extent that Mr Sammons requested that the minimum annual rate should have been applied from that date, that request should be refused.

12.  As the tribunal has reached the same decision to that of the objections officer, that decision is affirmed. The tribunal notes that, as a result of a subsequent departure decision, neither the minimum annual rate nor the fixed annual rate have been applied to the child support case for the relevant period in any event.

DECISION

The decision under review is affirmed.