Siddly and Oringe (Child support)

[2022] AATA 3061

Siddly and Oringe (Child support) [2022] AATA 3061 (20 July 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/MC023869

APPLICANT:  Mr Siddly

OTHER PARTIES:  Child Support Registrar

Ms Oringe

TRIBUNAL:Member M Baulch

DECISION DATE:  20 July 2022

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – estimate of income – whether estimate of income correctly 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

BACKGROUND

1. Mr Siddly and Ms Oringe are the separated parents of three children, in respect of whom Services Australia – Child Support (Child Support) has made assessments of child support.

2. On 25 February 2022, Mr Siddly contacted Child Support and made an election to have an estimate of his adjusted taxable income of $0 applied to the child support assessment.  On 28 February 2022, a Child Support employee decided that Mr Siddly’s estimated income of $0 per annum should apply to the child support assessment from 25 February 2022 (the decision under review).

3. Mr Siddly objected to that decision and, on 6 May 2022, that objection was disallowed.  Mr Siddly has now applied to this tribunal seeking an independent review of Child Support’s decision.

4. A hearing into the application for review was held by the tribunal on 20 July 2022. Mr Siddly and Ms Oringe both participated in the hearing by conference telephone, and both gave sworn evidence during the hearing. A representative of the Child Support Registrar (the Registrar) did not participate in the hearing. The tribunal had before it relevant documents provided to it by Child Support pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (150 pages), copies of which both parties confirmed they had received prior to the tribunal hearing.

ISSUES

1. The statutory provisions relevant to this review application are found within the Child Support (Assessment) Act1989 (the Act).

2. The issue which arises in this case is from when can Mr Siddly’s estimate election be applied to the child support assessment.

CONSIDERATION

1. Child Support makes child support assessments using a formula outlined in Part 5 of the Act.  The elements of this formula include, amongst other things, the adjusted taxable income of each parent.  The adjusted taxable income for each parent is defined in section 43 of the Act and includes primarily the taxable income for the year of income in relation to the child support period.  The term year of income is defined in subsection 5(1) of the Act and generally means a financial year.

2. As of 22 November 2021, the adjusted taxable income applying for Mr Siddly in the child support assessment was based upon his 2019–20 taxable income and was $82,140.  From 1 January 2022, a new child support period commenced and Mr Siddly’s adjusted taxable income was a provisional amount of $91,071.

3. Section 60 of the Act provides that a parent may elect, either before the commencement of an income year (that is, a financial year) or during that income year, that their adjusted taxable income used in a child support assessment be based upon their estimate of their income as long as that estimate is not more than 85% of the adjusted taxable income used in the child support assessment. 

4. On 25 February 2022, Mr Siddly contacted Child Support and made such an estimate election.  He estimated that his income would be $0 and, on 28 February 2022, he advised that his earnings year to date were $9,041.

5. Mr Siddly’s estimate election satisfied the requirements of section 60 of the Act.  Pursuant to section 61 of the Act, that estimate was applied to the child support assessment.

6. The date from which an estimate election applies to the child support assessment is prescribed by subsection 60(5) of the Act, which relevantly provides that:

   (5)  The start day for the election must be:

   (a)  the day on which the parent makes the election; or

   (b)  the first day of a child support period, so long as that day is not before the day referred to in paragraph (a).

   The child support period in question commenced on 1 January 2022, and Mr Siddly contacted Child Support about making an estimate election on 25 February 2022.  The start date for the election can only be the date Mr Siddly made the election (25 February 2022), as that is after the first day of the child support period (1 January 2022).

7. I therefore found that Mr Siddly’s estimate election can only be applied to the child support assessment from 25 February 2022.

8. Mr Siddly submitted that his estimate should be applied to the child support assessment from earlier than 25 February 2022, as his income was $0 from December 2021 and it is unfair that he be assessed based upon an income he did not have.

9. There is evidence that Mr Siddly contacted Child Support on 29 November 2021.  There is nothing in the record of that contact to indicate that Mr Siddly made an estimate election on that date.  However, Mr Siddly’s evidence at hearing was that an estimate was made, and that the estimate was an amount somewhere in the vicinity of $81,000 to $91,000.

10. I noted that as of 29 November 2021, the adjusted taxable income of Mr Siddly applying in the child support assessment was $82,140.  An estimate election would only be valid if Mr Siddly was estimating his income would be less than 85% of that amount (less than $69,819).  On his own evidence, Mr Siddly was not making such an estimate.

11. There is no evidence that Mr Siddly made a valid estimate election any time before 25 February 2022 and this date is the earliest date from which Mr Siddly’s estimated adjusted taxable income of $0 can be applied to the child support assessment.

12. Therefore, and for these reasons, I decided to affirm the decision under review.

DECISION

The decision under review is affirmed.