Whetten and Whetten (Child support)

[2022] AATA 1178

Whetten and Whetten (Child support) [2022] AATA 1178 (13 April 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC023007

APPLICANT:  Ms Whetten

OTHER PARTIES:  Child Support Registrar

Mr Whetten

TRIBUNAL:Member P Jensen

DECISION DATE:  13 April 2022

DECISION:

The decision under review is set aside and, in substitution, Mr Whetten’s income estimate which was lodged on 8 July 2021 is refused.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – estimate of income - whether the estimate should have been accepted - estimate of income refused - decision under review set aside and substituted

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

1. Ms Whetten and Mr Whetten are the parents of two children. A child support case was registered in 2017 with what is commonly called the Child Support Agency or CSA. The Child Support (Assessment) Act 1989 (“the Assessment Act”) provides for an administrative assessment of child support payable. It uses a formula which contains variables such as the parents’ adjusted taxable incomes and their percentages of care for the children. From 1 July 2021 the administrative assessment was based on Ms Whetten’s 2019-20 adjusted taxable income of $23,542, Mr Whetten’s 2019-20 adjusted taxable income of $148,000 and Ms Whetten’s 100% care for both children. Mr Whetten was assessed to pay $27,024 per annum in child support.

2. The Assessment Act also allows a parent to provide an income estimate and, if accepted, the administrative assessment is based on that income estimate, subject to a possible reassessment once the parent’s adjusted taxable income becomes known.

3. On 8 July 2021, Mr Whetten provided an income estimate. He stated that his 2021-22 year‑to-date adjusted taxable income was $0 and he estimated that his adjusted taxable income for the remainder of 2021-22 would be $0. He added that his income had changed on 1 January 2021. The CSA decided to accept Mr Whetten’s income estimate. Ms Whetten promptly objected to that decision. An objections officer disallowed her objection. Ms Whetten promptly applied to the Tribunal for further review.

4. The Tribunal hearing commenced on 11 March 2022. Mr Whetten stated that he had not earned any income since providing his income estimate on 8 July 2021. I questioned him about his expenses and his capacity to meet those expenses. He refused to answer my questions. For example, he refused to disclose what rent he had been paying in respect of the house that he is renting. He then referred to his written submissions in which, broadly speaking, he disputed the jurisdiction of the Tribunal. For example:

   26. Therefore, be it now known to any and all concerned and affected parties, that I, a private Man, do hereby state clearly, specifically and unequivocally my intent to peacefully and lawfully exist free of all statutory obligations and restrictions and maintain all rights at law to trade, exchange or barter.

5. One of Mr Whetten’s key submissions was that he did not consent to the Tribunal proceedings. He noted that the Tribunal has an Australian business number and he incorrectly concluded via what was, with respect, a fundamentally flawed line of legal reasoning, that his consent was a threshold requirement for the validity of the Tribunal proceedings. I explained that the Tribunal was established by the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) and the proceedings were being conducted pursuant to that Act. He said he had read the AAT Act. It follows that he had read that the Tribunal may review certain decisions and affirm, vary or set aside those decisions. Mr Whetten’s consent to the proceedings was not a threshold requirement: see generally sections 25 and 43 of the AAT Act. The Tribunal’s power to review income estimate decisions arises pursuant to sections 80, 87 and 89 of the Child Support (Registration and Collection) Act 1988. I explained that in due course I would be deciding whether to affirm the decision to accept his income estimate or set that decision aside and refuse his income estimate. I explained that his refusal to answer my questions about his finances might lead to a conclusion that if he were to answer my questions, his answers would not have supported his income estimate. It had been open to me at that point in time to conclude the hearing and make a decision, based on the (scant) evidence that had been provided and Mr Whetten’s refusal to answer some of my questions. However, given the difference in rates of child support payable depending on whether Mr Whetten’s income estimate was accepted or refused, I decided to give Mr Whetten with a further opportunity to provide relevant evidence and, if he wished, obtain independent legal advice concerning the proceedings. I explained that I would be issuing directions which would require him to provide certain documentation, and if did not comply with those directions, his non‑compliance might lead to a conclusion that if he had complied, the documents would not have supported his income estimate. The hearing was adjourned to 12 April 2022.

6. On 11 March 2022, I issued written directions which required Mr Whetten to provide a copy of the lease in respect of the house he was renting as well as bank account statements to which he was a signatory. The directions included a statement that the Tribunal may draw adverse inferences against a party if that party fails to comply with a direction to give information or evidence. Mr Whetten did not comply with the directions. On 29 March 2022 the Tribunal Registry sent a letter to Mr Whetten in respect of his non-compliance. It reminded him of the adverse inferences that might be drawn.

7. The hearing resumed on 12 April 2022. Mr Whetten stated that he was recording the proceedings. I reminded him that he was prohibited from recording the proceedings.[1] He stated that he could record the proceedings and that he was continuing to do so. He also stated that he had provided further written submissions to the Tribunal and he had proof from Australia Post that the Registry received those submissions on 5 April 2022. According to the Registry’s records in respect of the application for review, it had not received any such correspondence. Mr Whetten also stated that he did not wish to participate in the audio hearing and that all contact should be via posted correspondence; he also did not consent to receiving correspondence via email.

   [1]Section 20 of the Child Support Review Directions.

8. Given that Mr Whetten did not wish to participate in the audio hearing (and was not required to do so) and he refused to comply with the direction to not record the proceedings, I removed him from the hearing. After the hearing I arranged for the Registry to ask him for the Australia Post tracking number for the documents that he had recently sent to the Registry, and he provided that number. His written submissions were in fact delivered to the Registry on 5 April 2022. Apparently the documentation had not been placed on the file for the application for review because the covering document was a Freedom of Information request addressed to the Acting Registrar and Mr Whetten had used a reference number which was not the reference number for the application for review.

9. Mr Whetten’s additional documentation consisted of 13 pages. The first page was a Freedom of Information request for all commercial contracts between himself and the Tribunal. That document is not relevant to the current application for review. It has not been accepted into evidence (and a copy will therefore not be provided to Ms Whetten). For the sake of completeness I note that shortly before 12 April 2022, Ms Whetten also provided additional documentation. I decided to not accept that documentation into evidence (and a copy has therefore not been provided to Mr Whetten).

10. The other 12 pages that Mr Whetten provided consist of an affidavit from him and supporting documentation. That documentation has been accepted into evidence.[2] Having considered the oral and documentary evidence, I formed the view that I could fairly make a decision without providing Ms Whetten with an opportunity to respond to Mr Whetten’s additional documentation.

    [2]As at 12 April 2022, the hearing papers consisted of documentation from the CSA (pages 1 to 82), documentation from Ms Whetten (page A1) and documentation from Mr Whetten (pages B1 to B5). Mr Whetten’s additional documentation has been marked B6 to B17. I have had regard to that documentation in making my decision.

11. Turning to those 12 pages, Mr Whetten noted the separation of powers under the Australian Constitution and the fact that the Tribunal does not form part of the Judiciary. He then incorrectly concluded that I therefore did not have the power to issue the directions dated 11 March 2022. As the directions expressly state, they were issued pursuant to section 33 of the AAT Act; they were not issued pursuant to any purported judicial power.

12. When Mr Whetten contacted the CSA on 8 July 2021 he stated that his 2021-22 year‑to-date adjusted taxable income was $0 and he estimated that his adjusted taxable income for the remainder of 2021-22 would be $0. If his statement and estimate had been accurate, it would have been appropriate to accept his income estimate pursuant to section 60 of the Assessment Act. However, when Mr Whetten was directed to provide documentary evidence which would have enabled me to objectively assess the accuracy of his statement and estimate, he refused to comply with those directions. In the particular circumstances of this case, I consider it appropriate to draw an adverse inference from Mr Whetten’s non-compliance. I find that if he had provided the documentation that he had been directed to provide, it would not have supported his income estimate. Section 63AA of the Assessment Act relevantly provides that an income estimate may be refused if the decision-maker is satisfied that the estimate of future income is an under-estimate. Given Mr Whetten’s failure to comply with the directions, I am satisfied that his estimate of future income was an under-estimate, and I consider it appropriate to exercise the discretion in section 63AA to refuse his income estimate.

DECISION

The decision under review is set aside and, in substitution, Mr Whetten’s income estimate which was lodged on 8 July 2021 is refused.