Yoxall and Yoxall (Child support)

[2019] AATA 5945

Yoxall and Yoxall (Child support) [2019] AATA 5945 (21 November 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC016827

APPLICANT:  Mr Yoxall

OTHER PARTIES:  Child Support Registrar

Ms Yoxall

TRIBUNAL:Member S Letch

DECISION DATE:  21 November 2019

CATCHWORDS

CHILD SUPPORT – dismissal of application for review – departure determination – no reasonable prospect of success – application for review 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. This matter concerns an application by Mr Yoxall against an objection decision of the Child Support Agency (“CSA”) dated 18 June 2019 which disallowed Mr Yoxall’s objection to a decision dated 22 March 2019. In that decision, on application by Mr Yoxall on 12 December 2018, it was decided there was no ground to depart from the child support formula.

2. I conducted a directions hearing on 19 November 2019; both Mr Yoxall and Ms Yoxall participated by conference telephone. I sought submissions about whether the matter should be dismissed on the basis the application had no reasonable prospects for success.

3. Mr Yoxall raised a number of concerns about what he says have been misrepresentations by Ms Yoxall to the CSA, and questioned her general credibility. He observed that Ms Yoxall had not complied with the direction of the Tribunal to provide a Statement of Financial Circumstances. Ms Yoxall indicated she was reluctant to disclose personal information, pointing to what she says is a history of domestic violence issues.

4. I note that an assessment contained in the CSA papers (folio 267) reveals that Mr Yoxall’s child support liability has been assessed at $5.83 per month (an annual liability of $70) for the period 1 August 2019 to 31 October 2020. Ms Yoxall said she has recently obtained a higher level job, which she says has resulted in her being liable to pay support to Mr Yoxall.

5. Broadly speaking, Mr Yoxall has two main areas of concern. The first concerns some relatively large sums of cash provided to Ms Yoxall from her parents which Ms Yoxall said she applied to legal fees associated with the family law matters, and towards a property she has purchased. Mr Yoxall also raises the question of Ms Yoxall’s earning capacity; he suggests she ought to be assessed on a higher amount. He suggests that Ms Yoxall’s income for the 2017/18 financial year should be assessed at a sum exceeding $300,000; he observed that he had struggled significantly during this period and made many sacrifices to support the children.

6. I accept Mr Yoxall’s evidence that he had experienced financial difficulty during this period. I also understand some of his other concerns, and take his point that he had complied with his disclosure obligations by supplying his Statement of Financial Circumstances in circumstances where Ms Yoxall had not. I observe Ms Yoxall advised during the hearing she had only very small sums in her bank accounts, which I accept.

7. During the hearing, I pointed out to Mr Yoxall that the responsibility for providing financial support for the children rests with the parents, and not with Ms Yoxall’s parents. Ms Yoxall was fortunate enough to be provided some financial support by way of gifts; if he had been the recipient of assistance from family members, such sums would not be assessed as being his income for child support purposes. I indicated that a circumstance in which a gift might readily form the basis of a departure might be if a gift was earning interest income in a bank account (and only if such a sum was not already reflected in a person’s adjusted taxable income under the formula arrangements). There was nothing which I considered to give rise to special circumstances which would render Mr Yoxall’s liability to pay a relatively small amount of child support unfair or unjust.

8. The second area of Mr Yoxall’s dispute is the suggestion Ms Yoxall should be assessed on an “earnings capacity” at a level exceeding her actual adjusted taxable income. He suggests that if she had made different choices, she might be earning in the vicinity of $180,000 per annum.

9. The decision to assess a parent on a capacity to earn is not taken lightly; there are a number of stringent legislative requirements which must be met.

10. Ms Yoxall’s written evidence to the Tribunal was that she had ceased working full-time about a year into the relationship with Mr Yoxall. She returned part-time, and eventually became full-time in October 2016 (whilst still with Mr Yoxall, and when Mr Yoxall became unemployed). Due to a requirement from her employer that she regularly travel to [City 1], she reduced her hours, and later reverted to full-time hours. In order to be available to pick the children up from school, she reduced to “0.9 FTE”, and later returned to full-time hours with flexibility for pick-ups. She advised during the directions hearing that she has secured a higher level job with a higher pay, which has impacted the child support assessment.

11. The evidence reveals Ms Yoxall had transferred to a lower-level [role] in the middle of 2017 for what she understood would be for a temporary period, in part because she was dealing with the separation and was not coping. She supplied in her materials a letter from her employer dated 13 November 2017 advising she could not return to her previous (executive level) role as earlier advised as a mistake had been made. Her contract was terminated.

12. I consider Ms Yoxall acted reasonably; matters were taken out of her control when she attempted to return to her previous position. Her decision to reduce to “0.9 FTE” was plainly justified by her caring responsibilities. She says she has actively been looking for higher-level positions; she has since secured such a position. I do not consider any of her actions or decisions to have been motivated by impacting the child support assessment. There is no basis for an “earnings capacity” assessment to be made.

13. There is another matter. Mr Yoxall indicated he was seeking a reassessment of child support liability only for the 2017/18 year. He made his application for a departure in December 2018. Only in compelling circumstances will the effect of a departure decision be given retrospective effect. Even if a departure ground could be established, and the circumstances were just and equitable and otherwise proper, I cannot see a compelling basis for any departure to be given retrospective effect.

14. Mr Yoxall also raises concerns about Ms Yoxall’s current financial situation. The Tribunal observes that Mr Yoxall can make a fresh application for a change of assessment at any time in the event he considers there is a ground to depart from the formula. Any material change is best dealt with by a fresh application with the CSA.

15. The Tribunal is satisfied that this 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).