Streeton and Benz (Child support)

[2022] AATA 309

Streeton and Benz (Child support) [2022] AATA 309 (27 January 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/BC022651

APPLICANT:  Ms Streeton

OTHER PARTIES:  Child Support Registrar

Mr Benz

TRIBUNAL:Member S De Bono

DECISION DATE:  27 January 2022

DECISION:

The decision under review is affirmed. (This means the application for review is unsuccessful.)

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – estimate of income – whether the estimate should have been accepted – 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. Ms Streeton and Mr Benz are the separated parents of [Child 1] and [Child 2]. There has been a child support assessment in place since 11 May 2011. Mr Benz is the paying parent.

2. On 28 June 2021 Mr Benz advised Child Support that he was travelling overseas and he would be taking leave without pay from his employment for the period of 28 July 2021 to 5 October 2021. Prior to Mr Benz travelling overseas the care determination was 50% care to each parent. The income estimation at this time was not acted upon by Child Support. On 4 August 2021 Child Support made the determination that Mr Benz had no care from 29 August 2021 and his child support liability had increased. This rate applied until the updated income estimation was made by Mr Benz on 11 August 2021.

3. On 13 August 2021 on officer from Child Support made the decision to accept Mr Benz’s income estimation using the mobile app while he was overseas of $0 from 11 August 2021.  As a result of accepting this income estimation Child Support accepted Mr Benz’s year to date income to be $2,178.00 annualised to $10,138.00 for the period 1 July 2021 to 30 June 2022. While Mr Benz was overseas, Ms Streeton had 100% care of [Child 1] and [Child 2].

4. On 17 August 2021 Mr Benz lodged an objection to the decision to accept his income estimation from 11 August 2021 and not 28 June 2021 when he first notified Child Support that he was on leave without pay and travelling overseas for his father’s funeral. On 14 October 2021 an objections officer made the decision to disallow Mr Benz’s objection as the objections officer found that no income estimation had been made by Mr Benz on 27 July 2021.

5. On 2 November 2021 Ms Streeton applied to the Administrative Appeals Tribunal (the tribunal) for an independent review of this decision of Child Support to accept Mr Benz’s income estimation made on 11 August 2021 which applied to 30 June 2022. On 27 January 2022 Ms Streeton and Mr Benz gave evidence under affirmation via conference telephone. The tribunal had before it a bundle of documents (242 pages – referred to as the hearing papers) which had been sent to both parties prior to the hearing. Relevant aspects of the material and evidence will be referred to in the tribunal’s consideration of the issues to be decided.

LAND AND CONSIDERATION

1. The law relevant to this review is found in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988. The rate of child support payable by the liable parent is usually based on an administrative assessment under Part 5 of the Act. This requires the application of a statutory formula which takes into account factors such as the number and age of children, the level of care provided and the child support income amount of each parent.

Issue – Was Child Support correct to accept Mr Benz’s income estimation of $0 income from 11 August 2021?

1. Under section 60 of the Act a parent may elect to estimate their income for either the whole of an income year or part of an income year. Mr Benz lodged his first income estimation on 11 August 2021 of $0 as he would be on leave without pay from 29 July 2021 to at least 5 October 2021. When making this income election Child Support updated Mr Benz’s year to date (YTD) income based on payslip information showing YTD income of $2,178.00, this was an annualised amount of $10,138.00. During this period Mr Benz had no care of the children and the care was determined to be 100% to Ms Streeton from 29 July 2021.

2. In accepting the income estimation of $0 from 11 August 2021 Mr Benz’s child support liability was assessed to be $36.92 a month based on Mr Benz having no care of the children during the period he was overseas and, having an annualised income of $10,138.00.[1] Prior to this assessment Mr Benz was liable to pay $1,310.83 a month based on his 2020 taxable income of $81,209.00 and his care percentage of 0% care from 29 July 2021 to 10 August 2021.[2]

   [1] Page 108 of the hearing papers.

   [2] Page 67 of the hearing papers.

3. Ms Streeton applied to the tribunal for an independent review of the decision to accept Mr Benz’s income estimation because she disagreed that Mr Benz’s income should be assessed as $0 for the period of 11 August 2021 until 30 June 2022. The tribunal explained that the income estimation of $0 would only apply until Mr Benz made a new income estimation, which he did on 15 November 2021.[3]

   [3] Page 166 of the hearing papers.

4. Ms Streeton was upset that Child Support accepted Mr Benz’s income estimation of $0 from 11 August 2021 because Mr Benz’s child support liability had reduced significantly, and this created financial difficulties for Ms Streeton at a time when she had 100% care of [Child 1] and [Child 2].

5. Subsection 63AA(2) of the Act provides that the Registrar may refuse to accept an income election if the person’s income is more than the Registrar considers likely to be the person’s actual income.

6. The tribunal understands that when Mr Benz provided his first income estimation of $0 this created a degree of financial hardship for Ms Streeton because Mr Benz’s child support liability reduced significantly based on this assessment. However, the tribunal is satisfied that the income estimation made by Mr Benz reflected his actual income from 11 August 2021 because he was on leave without pay until he returned to Australia and returned to work. Mr Benz provided another income estimation on 15 November 2021 when his child support liability increased to $1,639.33 a month.[4]

   [4] Page 167 of the hearing papers.

7. The tribunal finds that Child Support was correct in accepting Mr Benz’s income estimation of $0 from 11 August 2021 as this was his actual income from this date.

DECISION

The decision under review is affirmed. (This means the application for review is unsuccessful.)