Tribunal: Senior Member R Ellis
Primary Government decisions
The Child Support Agency (the Agency) made two decisions. Firstly, the Agency allowed one objection in part, meaning the objection was partly successful, and made the decision to accept the application for the fixed annual rate to no longer apply from 11 August 2021 to 31 October 2022 (‘first objection decision’).
The Agency disallowed another decision (this means objection was unsuccessful) and made the decision that the minimum annual rate of child support to no longer apply from 11 August 2021 to 31 October 2022 (‘second objection decision’).
AAT decisions
The Tribunal set aside both the decisions under review and in substitution, refused the father’s application that the fixed rate of child support no longer applied to the assessment from 11 August 2021 to 31 October 2022. The Tribunal also refused the father’s application to reduce his child support payments to $0 for the same period.
Details
The Applicant and the father have one child. The father is the liable parent under the child support assessment. The father was incarcerated between August and November 2021 but continued to make child support payments during this time.
The father in October 2021 made an application to the Agency for the fixed annual rate to no longer apply and also an application for the minimum annual rate of child support to no longer apply between August 2021 to October 2022.
On the same day the Agency made the decision to accept the application for the fixed annual rate to no longer apply from 1 August 2021 to 31 October 2022. The Agency also made the decision to accept the minimum annual rate of child support to no longer apply.
The Applicant objected to both decisions, one was allowed in part and the other disallowed. The Applicant applied to the Tribunal for further review of both decisions.
Issue
Firstly, the Tribunal had to decide whether or not the fixed annual rate of child support should apply to the father’s child support liability.
Secondly, the Tribunal needed to decide whether or not the minimum annual rate should apply to the father’s child support liability.
Application of law
A parent who has been assessed at the fixed annual rate ($1060) under section 65A of the Child Support (Assessment) Act 1989, can make an application for that rate to not apply (section 65B). The Tribunal found that the father did not meet the requirements of section 65B because he had sufficient resources to meet his child support obligations.
If the fixed annual rate does not apply, the Tribunal also needed to consider the father’s application under section 66 which allows a parent to apply for their child support payment to be reduced to $0 if their child support payment has been set at the minimum annual rate ($320).
The Tribunal found that as the father did not meet the requirements to remove the fixed annual rate under section 65B, he would also not meet the requirements of section 66. This meant that he was not able to apply for his child support payment to be reduced to $0.
Summary of reasons for decision
The father’s provisional tax return for 2020–21, showed that he had sufficient income to pay child support even if he was not currently working. The Applicant argued that this was proof that the father had the capacity to pay child support, and that the father’s child support payment should not be the minimum annual rate or $0.
The Tribunal found that the father had sufficient resources to meet his child support obligations until at least October 2021. Therefore, it would be difficult to conclude that it is unjust and inequitable for him to pay the fixed annual rate. Given that the father’s application for the fixed annual rate to not apply is refused, the father will be assessed on fixed annual rate. This means he cannot be on the minimum annual rate and could not apply for his child support payment to be reduced to $0.
Full decision
Read the full decision on AustLII.
Glossary and other notes
Set aside: If the AAT sets aside a decision under review, the original decision no longer stands. The AAT may make a new decision or remit the matter to the original decision-maker.
Disclaimer
Every case before the AAT is determined on its individual facts. These summaries may not include all information considered by the AAT and do not constitute legal advice. You should read the full decision to ensure you understand the basis of our decision.