Warner and Tellis (Child support)

[2018] AATA 3488

Warner and Tellis (Child support) [2018] AATA 3488 (5 June 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/HC013790

APPLICANT:  Mr Warner

OTHER PARTIES:  Child Support Registrar

Ms Tellis

TRIBUNAL:Member W Budiselik

DECISION DATE:  05 June 2018

DECISION:

The decision under review is affirmed.

Member W Budiselik

CATCHWORDS
Child support - Estimate of income - Whether the estimate election should have been accepted from an earlier date - Estimate correctly accepted from the date of lodgement - 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 Warner (the father) and Ms Tellis (the mother) are the separated parents of three children who on 6 April 2011 were the subject of child support assessments. Mr Warner resides in [Country 1]. Australia and [Country 1] are reciprocating jurisdictions with respect to child support matters.

2. On 20 February 2018, an objections officer from the Department of Human Services – Child Support (the department) affirmed a decision made by an officer of the department on 6 April 2011 to disallow the father’s objection to the department’s decision to accept his income estimate for the period 13 January 2011 to 30 June 2011.

3. On 29 March 2018, the father lodged an application with the Administrative Appeals Tribunal (the tribunal) seeking a review of the department’s decision. On 5 June 2018, the tribunal conducted a hearing into the application. The father and mother participated in the hearing via teleconference. Prior to the hearing the department provided the mother and father and the tribunal with a bundle of documents (folios 1 – 170) taken from its files.

4. The father provided a statement when he lodged his review application. In part he stated:

   In March 2010, I was made redundant from my employment…I then went onto a jobseekers allowance of Au$140…It was then I started to receive letters from the CSA demanding payment, but not of a percentage of the $140 a week I was receiving, and then wanted over $500 a month based on my earnings for the year 2008/2009.

   I was in constant contact with them regarding the matter and the relevant paperwork was submitted, including 2009-2010 financial details, even though this was irrelevant due to my circumstances having changed dramatically.

ISSUES

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

2. The issue which arises in this case is whether the department correctly accepted the father’s income estimate for the period 13 January 2011 to 30 June 2011.

CONSIDERATION

1. Division 7 of Part 5 of the Act deals with child support assessments and estimates of adjusted taxable incomes. Section 60 of the Act provides that a parent may elect to estimate his or her adjusted taxable income for a year of income. Subsection 60(1) of the Act states:

   (1)  A parent may, before a year of income starts or during a year of income, elect that the parent's adjusted taxable income for the year of income is to be the amount that applies under subsection (2) or (3) if:

   (a)  the parent is to be assessed in respect of the costs of a child of the parent for a day in a child support period; and

   (b)  the amount that would apply under that subsection is not more than 85% of:

   (i)  the total of the parent's adjusted taxable income determined in accordance with section 43 for the last relevant year of income for the child support period; or

   (ii)  an amount that the parent declares is the total of the parent's adjusted taxable income for the last relevant year of income for the child support period, and the Registrar is satisfied that the declared amount is correct.

2. The effect of subsection 60(1) of the Act is that the parent’s election of an income estimate follows the determination of the parent’s adjusted taxable income according to section 43 of the Act or the parent’s declaration of their adjusted taxable income for the last relevant year of income (providing the Registrar is satisfied with the amount declared). Section 43 of the Act provides the components of a parent’s taxable income included their taxable income for the last relevant year of income in relation to the child support period.

3. Subsection 7A of the Act deals with the meaning of child support period. In this case the initial child support period started on the date the application for an administrative assessment of child support was lodged and concluded on 30 September 2010 (see paragraph 7A(3)(b) of the Act).  For this initial child support period the last relevant year of income is the 2008/09 financial year.

4. Subsection 60(4) of the Act provides a method statement for a parent to provide an income estimate for a part year of income. Among other things it requires a parent to estimate each income component amount for the parent for the period starting on the start day of the election and ending at the last day of the year of income.

5. Subsection 60(5) of the Act prevents the backdating of an income estimate. It states:

   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).

6. A child support case was registered by the mother in Australia on 3 March 2010. According to the papers the father was advised the case was registered on 7 August 2010, when the department wrote to him. An enclosed assessment dated 9 August 2010 set out the child support assessment was based on the father’s provisional income of AUD$39,326.

7. On 7 August 2010 and on 5 September 2010 the department wrote to the father under the heading “request for overseas information”. These letters informed him for child support purposes he needed to provide among other things:

   ·income for the most recently ended financial year in the country were the income was earned; and

   ·supporting documents to verify his income (as outlined in the attached form).

8. This attached form advised him:

   Important: If you now earn at least 15% less than the income that will be used in your current child assessment you may be able to supply an estimate of your income.

9. On 9 September 2010, the father provided the department with information about his 2009/2010 income. He attached a letter which among other things advised the department he had been unemployed from 22 March 2010 (an attached letter headed Jobseeker’s Allowance set out that he was being paid jobseeker’s allowance at 64.45 pounds sterling a week). This letter also advised him that he would not be paid jobseeker’s allowance from 23 September 2010.

10. On 17 September 2010 the father called the department. He was advised it required evidence of his 2009/2010 income. The department’s note recorded:

    advised once evidence is received we will update income used in the assessment to the 09/10 income. Once we have that then he can estimate income as he is now in receipt of jobseeker’s allowance.

11. On 19 September 2010 the father wrote to the department providing the evidence of his 2009/2010 income. He wrote:

    I wish to lodge an estimate of my income for the period April 2010 to March 2011. I estimate my income will be 3,403.40 p (per annum).

12. On 15 October 2010 the father rang the department. An officer advised him:

    I advised Mr Warner (the father) that I had loaded his 2009/2010 income, but that I needed his 2008/2009 income before referring to the estimates team. The father questioned this. I advised the father that when assessing child support we use the last relevant year of income which in this case was 2008/2009. I advised his 2009/2010 would be used at a later date.

13. The tribunal finds that for the department to accept an income estimate for the child support period commencing 3 March 2010 the father had to comply with the requirement that he provide to the department information about his 2008/2009 income (subsection 60(1) of the Act). This information was provided on 13 January 2011. It was on this date the department was able to accept the father’s income estimate. The effect of subsection 60(5) of the Act is that the date for the income estimate cannot be backdated to an earlier date.

14. Consequently the tribunal finds that the correct legal decision is to accept the income estimate from 13 January 2011.  

15. The department determined the correspondence from the father dated 19 September 2010 was not a valid income estimate (i.e. it did not comply with the requirements set out in section 60 of the Act) and as a consequence it refused to amend the particulars of the assessment from 1 October 2010 (i.e. from when the 2009/2010 year figures were relevant). From the papers it seems the department made that decision on 20 February 2018.

16. That the tribunal does not have before it a request for a review from the father about the department’s refusal to amend the particulars of the child support assessment means it cannot review the decision. For such a review to reach the tribunal the father needs first to object to the department’s decision.

17. The tribunal notes the effect of that part of section 60 of the Act which prevents backdating an income estimate meant the father’s income estimate could never have been accepted from April 2010.

18. At hearing the father said he wanted a just outcome. The father believes the child support assessment issued from the commencement of the case until 13 January 2011, when his income estimate was accepted, was unjust and unfair.

19. With hindsight it seems a course of action open to the father at the time was for him to lodge a departure application (commonly referred to as a change of assessment application) in accordance with Part 6A of the Act. Division 3 of Part 6A of the Act deals with applications for amendments of administrative assessments more than 18 months old. Section 110 of the Act sets out a simplified outline of the Division, in part it states:

    ·     Under this Division, a liable parent, a carer entitled to child support or the Registrar can apply to certain courts for leave for a determination or order to be made in respect of a day in a child support period that is more than 18 months earlier.

    ·     A court must not grant leave for such a determination or order to be made in respect of a day in a child support period that is more than 7 years earlier.

20. Consequently, in the tribunal’s opinion, because more than 7 years has elapsed, the father does not now have the ability to seek a departure determination for the child support period commencing 3 March 2010.

DECISION

The decision under review is affirmed.