Schreider and Wolfwood (Child support)

[2024] AATA 477

Schreider and Wolfwood (Child support) [2024] AATA 477 (3 January 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/BC026504

APPLICANT:  Ms Schreider

OTHER PARTIES:  Child Support Registrar

Mr Wolfwood

TRIBUNAL:Senior Member K Dordevic

DECISION DATE:  3 January 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – whether the liable parent’s estimate of income should be accepted – liable parent did not elect to provide a new income estimate - decision 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 Wolfwood (the father) is the parent liable to pay child support to Ms Schreider (the mother) in respect of their child [Child 1] (the child), born [date] June 2008 who is in the mother’s sole care. Services Australia – Child Support (Child Support) registered a child support assessment on 11 September 2009.

2. From 1 September 2022 to 30 November 2023 the father’s 2022 adjusted taxable income of $279,310 applied to the administrative assessment, requiring him to contribute $19,214 per annum towards the cost of the child.[1]  Following a decision made by a senior case officer dated 23 February 2023 the father’s adjusted taxable income was varied to $106,980 for the periods 5 July 2021 to 30 June 2022 and 1 September 2022 to 21 October 2022.[2]

   [1] At folio 28

   [2] At folio 93

3. On 27 September 2022 the father lodged a nil income estimate for the period 27 September 2022 to 30 June 2023.[3] It is apparent that this was never actioned by Child Support.

   [3] At folios 31 to 32

4. On 22 October 2022 the father lodged an income estimate of $45,390 for the period 22 October 2022 to 30 June 2023.[4] This was accepted by Child Support on 27 September 2022 and applied to the assessment from the date of application.[5] On 3 November 2022 the mother lodged an objection to that decision, which was disallowed on 30 December 2022.

   [4] At folios 50 to 52

   [5] At folios 56 to 57

5. On 10 March 2023 the father lodged an amended income estimate of $74,065 ($107,703 when annualised) for the period 23 October 2022 to 30 June 2023.[6] On 5 April 2023 Child Support accepted the father’s amended income estimate.[7] On 13 April 2023 the father objected to that decision, apparently because it created arrears. On 28 July 2023 an objections officer allowed the objection, so refusing to amend the income estimate based on the father’s 10 March 2023 contact.

   [6] At folios 126 to 131

   [7] At folios 128 to 129

6. On 31 July 2023 the mother applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal).

7. The hearing took place on 3 January 2024. In considering the application, the Tribunal took into account the oral evidence of the father and the mother provided at hearing by MS Teams audio and the documentary evidence (folios 1 to 239) provided by Child Support. The father provided additional documents (marked folios B1 to B9). The mother advised that she was willing to proceed with the hearing even though she did not have the benefit of the documents provided by Child Support. At the commencement of the hearing the father was advised that the proceedings were private and that his partner could not be present. The hearing proceeded after the father declared that his partner was no longer present, noting that he stated that this requirement was discriminatory, given his mental health condition of complex post-traumatic stress disorder and that the Mental Health Act 2016 (QLD) permits him to have a support person present.

8. The Tribunal reached its decision on the day of hearing.

ISSUES

1. The statutory provisions relevant to this review are found in the Child Support (Assessment) Act 1989 (the Act).

2. In this case, the Tribunal must determine whether the father’s income estimate should be accepted for the purpose of the child support assessment.

CONSIDERATION

1. Child Support (acting for the Child Support Registrar) generally determines child support liabilities using a child support formula in Part 5 of the Act. The formula takes into account a range of factors including the adjusted taxable income of each of the parents. The adjusted taxable income for each of the parents is the taxable income from the last tax year that ended before the start of the child support period (plus supplementary amounts such as reportable fringe benefits, if relevant).

2. The statutory scheme provides some flexibility for parents whose circumstances change from one year to the next. Relevantly, in specified circumstances, section 60 of the Act allows a person to elect that their adjusted taxable income is their current adjusted taxable income rather than the applicable adjusted taxable income as determined under the formula. However, in accepting the estimate, the Child Support Registrar, or this Tribunal standing in the Registrar’s place, must be satisfied that the declared amount is correct.[8]

   [8] Subparagraph 60(1)(b)(ii) of the Act

3. The mother’s position can be summarised as follows. There has been inconsistency on the part of Child Support; at times the father’s estimates are accepted, then overturned without any supporting documentation provided by the father. The decision under review is unfair as it has placed her in a situation of overpayment.

4. The father’s position can be summarised as follows. The decision under review is incorrect. Child Support are an incompetent organisation and his actual income is about $26,000 to $27,000 per annum. His liability should be based on his taxable income and not his adjusted taxable income. His 2023 adjusted taxable income was $55,025 and was applied to the administrative assessment from 28 July 2023.

5. Prior to the father lodging the income estimate under review, Child Support previously accepted income estimate of $45,390, which applied to the assessment for the period 22 October 2022 to 30 June 2023.[9]

   [9] At folios 50 to 52

6. Section 62 of the Act provides for the revocation of an income estimate. It states that where an application period for the income election period has begun, a parent must lodge a new income estimate. Subsection 62A(2) of the Act states that the start day for the election must be the day on which the parent makes the election unless, pursuant to subsection 62A(3) of the Act, an event has occurred which impacts on the accuracy of the estimate and the new estimate amount is more than the previous estimate amount, the start day is on the day that the event occurred.

7. In this case, Child Support has determined that on 10 March 2023 the father lodged an application for a subsequent income election. In this online application the father declared that from 23 October 2022 his circumstances had changed and that he was in receipt of fortnightly superannuation income of $1,900 and he had withdrawn $30,000 from his superannuation account on 23 October 2022[10] and a further $10,000 on 2 November 2022.[11] In his application the father declared:[12]

   A full review has just been conducted on my account by [Ms A] as a result of an annual income of $300,000+ being incorrect. This assessment has reverted me back to $48,000 which is also incorrect. I have supporting documents already uploaded months ago referring to my superannuation deductions usually at $10,000 at a time. I believe l have made four of these deductions with my wage being around $100,000 as a result of these deductions. I also have a special circumstances uploaded showing $20,000 of this wage are legal bills and court attendances to see my children [redacted] to whom the mother will not allow me to access due to jealousy of me repartnering…

   [10] At folio 227

   [11] At folio 229

   [12] At folio 125

8. The father’s amended income estimate was accepted on 5 April 2023.

9. In lodging his objection to the acceptance of his income estimate, the father again confirmed that his income was made up of weekly compensation and withdrawals from his superannuation. However, the father declared that he had not intended to lodge an amended income estimate for the 2023 financial year; rather, he had understood that he was lodging an income estimate for the 2024 financial year:

   On the 6 April 2023 I logged onto the MyGov website where I updated what I thought was the next financial year income estimate. I entered $49,478 being my new calculated pension of $1,903 per fortnight. It was at this time that I noticed that my next maintenance was $870.70 per fortnight had increased to $9,215.68.

   On the 11 of April 2023 I telephoned CSA to discuss how I owe $9,215.68 (which is an entire year of child support) when I've been paying my maintenance each fortnight? The dismissive lady I spoke to had no interest in what I thought it may have been, only saying the computer says you own it, so you owe it. This put me into a downward spiral with my complex PTSD resulting in police attending my house on suicide watch.

   I tried to explain to the dismissive lady that [Ms A] [REDACTED] had completed an extensive overview of this case, finalising it in January 2023. This same dismissive lady didn't acknowledge this, only asking, who is she? With me having to inform she is a senior assessor from your department. I then asked if I could be transferred to [Ms A] [REDACTED] to have these rectified, which was ignored.

   This lady said that the calculations were between October 2022 and March 2023, which includes the time frame that [Ms A] [REDACTED] had conducted her investigation. I find it unacceptable that I, have to find this out. By chance myself, straight after I have loaded my next financial year 2023/24 income. I've received no mail regarding this, nor have I received a proper explanation on how this $9,215.68 (which is due on the 7 May 2023) was calculated when I've been paying my maintenance from my pension of $107,000 which included my $49,000 pension, and deductions made from my superannuation to pay for child custody legal fees, which I have provided all the invoices for my objection regarding these legal fees being included as child support related.

10. On balance, the Tribunal finds that on 10 March 2023 the father did not elect to provide a new income estimate pursuant to section 62A of the Act. In the Tribunal’s view, that a new income estimate was initially accepted by Child Support was an error completely of the father’s making and not on the part of Child Support. In his online application the father referred to the estimate period being the current financial year and that his income had changed from 23 October 2022 and (rather unhelpfully) referred to documents he had uploaded “months ago”[13] regarding his superannuation. The father compounded his error by declaring additional dates on which he had made lump-sum withdrawals from his superannuation, being in addition to withdrawals already addressed by the departure decision made by a senior case officer on 23 February 2023. It is (now) apparent that the father had intended to lodge an income estimate for the 2023/2024 financial year. The Tribunal reached the conclusion that the father did not elect to provide a new income estimate with greater satisfaction having the benefit of the father’s declaration at hearing regarding his fragile mental health and his 2023 adjusted taxable income of $55,025,[14] which clearly did not include the $40,000 he claimed to have withdrawn from his superannuation on 23 October 2022 and 2 November 2022, in addition to his fortnightly payments of $1,900 from his superannuation.

    [13] At folio 125

    [14] At folio 223

11. Thus, whilst the Tribunal has made different findings to that of the objection decision, the outcome remains the same.

DECISION

The decision under review is affirmed.