Sarkozy and Pedersen (Child support)

[2020] AATA 2672

Sarkozy and Pedersen (Child support) [2020] AATA 2672 (28 May 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/BC018625

APPLICANT:  Ms Sarkozy

OTHER PARTIES:  Child Support Registrar

Mr Pedersen

TRIBUNAL:Member S Letch

DECISION DATE:  28 May 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – reduction of minimum annual rate to nil – whether parent’s annual income is below the minimum annual rate – decision 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

1. Ms Sarkozy has been assessed as liable to pay child support to Mr Pedersen.

2. This matter concerns an application by Ms Sarkozy against an objection decision by the Child Support Agency (CSA) dated 18 February 2020.  Mr Pedersen’ objection to an original decision which accepted Ms Sarkozy’s application made on 5 November 2019 for her child support liability to be reduced from the minimum annual rate ($435 per annum) to “nil” was allowed; Ms Sarkozy’s liability was thereby restored to the minimum annual rate. 

3. The Tribunal conducted a hearing by conference telephone; Ms Sarkozy advised she did not wish to participate in the hearing. The hearing proceeded with Mr Pedersen; Ms Sarkozy accepted the Tribunal’s invitation to provide written submissions. She submitted the following:

   I am writing about my objection, I don't work and I don't claim anything from Centrelink as I live with my partner now. The reason I do not want to speak or hear from Mr Pedersen is a very private and personal reason. When I spoke with child support I did not lie and I did not hide anything. I sent you an email from Centrelink telling them that I stopped claiming money from them back in October last year. Nothing has changed from before when I spoke to child support they agreed for me to be on no payments. If I get a job or make some money I will call Child support and let them know. The only thing I can think of that has changed is that Mr Pedersen had objected with no truth about my life. I don't want to waste anyone's time with my personal situation. The truth is nothing has changed I have no money. My partner did speak on behalf of me to the AAT telling them that I do not want to talk with Mr Pedersen or hear him they said they would talk to the person doing the hearing and they will get back to me but nobody called me. If you want me to tell you the full story I can only do that in a private letter to AAT and nobody else. The truth is nothing has changed I have no money and I have no income. I will give you my word that if anything changes in my life to do with my money I will call child support and let them know I wait to hear from you on my email.

4. Mr Pedersen’ position is simple. He says that Ms Sarkozy has been given opportunities to provide evidence about her income and has failed to do so. He suggests Ms Sarkozy is being supported by her partner, and having recently had a baby, would likely be in receipt of some assistance from Centrelink. He suggests Ms Sarkozy’s circumstances are a contrivance with a view to avoiding payment of any child support.

5. The Tribunal observes the Child Support Guide, which is consistent with the child support law, provides the following at 2.5.4:

   …

   A parent can apply directly to a court for a departure order (CSA Act section 116(1)(c)) or can apply to the Registrar to have the minimum annual rate reduced to nil for a particular child support period (CSA Act section 66A).

   A parent must satisfy the Registrar that during the nominated period they have very low income, less than the minimum annual rate multiplied by the total number of the parent's child support cases (CSA Act section 66A(2)). The information that the parent must provide will depend upon the circumstances of their case and when their application was made.

   An application may be made during the child support period or after the child support period has ended.

   Meaning of income

   'Income' is not restricted to taxable income. For the purposes of this provision it is defined as (CSA Act section 66A(4)):

   ·any money received, earned or derived for personal use or benefit, or

   ·any periodic payment by way of gift or allowance.

   The only exclusions to this definition are prescribed in the regulations (CSA Regs section 13). They are:

   ·amenity allowances or gratuities (incidental payments for personal items or other minor expenses, but not payments for work, study or participation in approved programs) paid to prisoners,

   ·disability support pensions, pensions paid to veterans who are totally and permanently incapacitated and Special Rate Disability Pension for veterans, where at least 85% of the pension is paid to another person for the provision of ongoing care to the pension recipient, and

   ·a National Disability Insurance Scheme (NDIS) amount (as defined in the National Disability Insurance Scheme Act 2013).

   …

6. The objections officer decision records the following summary of Ms Sarkozy’s representations to the CSA:

   We received a response from Ms Sarkozy to Mr Pedersen's objection on 19 December 2019. Ms Sarkozy stated she has not worked for 9 months as she had an operation on 18 February 2019, and her doctor advised her she was unable to work for 3 months. Ms Sarkozy stated she did not return to work after the three months as she found out she was pregnant. Ms Sarkozy stated her Centrelink payments ceased on 8 October 2019 due to her living with her boyfriend. Ms Sarkozy stated she has no income and her partner is paying for all of the bills.

7. Ms Sarkozy supplied to the CSA a copy of her bank statements; therein is a deposit on 22 October 2019 of some $440 described as “[rent]”. When asked about that by the CSA, Ms Sarkozy indicated that was a “one off refund” from Queensland Government Housing. Ms Sarkozy failed to supply any evidence in support. There are no banking transaction records available after October 2019.

8. The definition of income, as set out in guidelines, is very broad. It can include any money received for Ms Sarkozy’s benefit, or any periodic gift or allowance. The Tribunal would need to be satisfied that Ms Sarkozy’s income is less than $435 per annum. The CSA materials indicate Ms Sarkozy was advised by CSA that the “nil” rate would most commonly only apply where a payer was imprisoned.

9. Ms Sarkozy’s banking records indicate receipt of rental income; despite opportunity to do so, Ms Sarkozy has not supplied further evidence to explain that deposit.

10. On the evidence available to it, the Tribunal is not satisfied that Ms Sarkozy’s annual income – broadly defined – is less than $435. Accordingly, the Tribunal is not satisfied that the requirements of section 66A of the Child Support (Assessment) Act 1989 operate to reduce Ms Sarkozy’s rate to “nil”.

11. 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.