Weir and Ackerman (Child support)

[2020] AATA 1388

Weir and Ackerman (Child support) [2020] AATA 1388 (16 March 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC017940

APPLICANT:  Ms Weir

OTHER PARTIES:  Child Support Registrar

Mr Ackerman

TRIBUNAL:Member H Schuster

DECISION DATE:  16 March 2020

CATCHWORDS

CHILD SUPPORT – dismissal of application for review – departure determination – seeking changes to assessment for period more than 18 months prior to date of application – no reasonable chance of success – application dismissed

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.

DISMISSAL OF APPLICATION FOR REVIEW:

1. The Tribunal is satisfied that the application for review has no reasonable prospect of success and dismisses the application for review pursuant to subsection 42B(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act).

Reasons for dismissal

1. Ms Weir and Mr Ackerman are the parents of [Child 1] (born 2015). There has been a child support assessment in place, made by the Department of Human Services – Child Support (the Department), for the child since 22 May 2015. Ms Weir resides in Australia while Mr Ackerman resides in [Country 1].

2. On 12 March 2019 Ms Weir applied for a departure from the administrative assessment of child support on the basis that Mr Ackerman’s income, property and financial resources were not properly reflected in the assessment. She asked that any determination to depart from the assessment be backdated to take effect from 1 March 2015.

3. On 28 May 2019 the Child Support Registrar determined that it was just and equitable and otherwise proper to depart from the child support assessment by varying the adjusted taxable income of Ms Weir to $20,454 for the period 2 May 2018 to 30 June 2019 and to vary Mr Ackerman’s adjusted taxable income from 2 May 2018 until 31 May 2025 to $260,000.

4. Ms Weir objected to that decision on 8 June 2019, asking for the decision to be backdated to 2015 and asking for her income to be varied.

5. On 23 November 2019 Ms Weir’s objection was allowed in part. Mr Ackerman’s adjusted taxable income (ATI) was set at $260,000 from 13 September 2017 until 31 May 2025. Ms Weir’s ATI was set at $12,250 from 2 May 2018 to 3 July 2019. Thus, the decision under review was that the departure from the assessment should take effect from a date 18 months before Ms Weir’s initial departure application made on 12 March 2019.

6. On 2 December 2019 Ms Weir lodged an application for a review of the objection decision with the Administrative Appeals Tribunal (the Tribunal). In her application and in a subsequent directions hearing Ms Weir confirmed that she was satisfied with the decision made on 23 November 2019 but asked that the decision be made for the departure to take effect from 2015 rather than 2017.

7. The Tribunal finds that the Child Support Registrar’s power to make determinations to depart from an administrative assessment is limited by subsection 98S(3) of the Child Support (Assessment) Act 1989 (the Assessment Act). It states that the Child Support Registrar may only depart from the administrative assessment for a date that is more than 18 months before the departure application is made if “a court has granted leave under section 112 for the determination to be made”.

8. The Tribunal, similarly, is limited to powers that the Child Support Registrar may exercise in this respect and has no power to extend the date from which a departure decision can take effect before the date provided for in section 98S of the Assessment Act.

9. Ms Weir advised that she has not yet applied for a court order under section 112 of the Assessment Act.

10. The Tribunal thus finds that Ms Weir’s application to the Tribunal has no reasonable chance of success and dismisses her application.