Anson and Child Support Registrar (Child support)

[2022] AATA 1696

Anson and Child Support Registrar (Child support) [2022] AATA 1696 (7 April 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/CC022807

APPLICANT:  Mr Anson

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member F Staden

DECISION DATE:  07 April 2022

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – application for extension of time – no satisfactory explanation for the lengthy delay – no arguable merit – prejudice to the other parent and general public – extension of time refused – decision under review affirmed

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

BACKGROUND

1. Mr Anson and [Ms A] are the separated parents of two children, born 2008 and 2012. There has been a child support assessment registered for this case with Services Australia – Child Support (Child Support) since 15 April 2015. The children are currently recorded as being in the greater than primary care of [Ms A].

2. On 18 November 2020, [Ms A] applied for a change of assessment application on the grounds that the child support assessment was unfair because it did not properly take into account Mr Anson’s income, property and financial resources (Reason 8A) or his earning capacity (Reason 8B).

3. On 4 January 2021, Mr Anson made a cross application on the ground that the child support assessment was unfair because it did not properly take into account [Ms A’s] income, property and financial resources (Reason 8A).

4. On 17 February 2021, a Child Support decision maker found Reason 8A established in relation to Mr Anson but not Reason 8B; Reason 8A not established in relation to [Ms A]; and made the following decision:

   ·     For the period between 1 November 2020 and 31 October 2022, the adjusted taxable income for Mr Anson is set at $71,640.

5. Mr Anson was informed of the 17 February 2021 decision by letter dated 18 February 2021. The letter included information about objection rights and stated that a review must be requested within 28 days of receipt of the letter.

6. On 10 November 2021, Mr Anson lodged a written objection and a request for an extension of time within which to object.

7. On 23 November 2021, Child Support decided to refuse Mr Anson an extension of time and informed him of this by letter of that date.

8. On 24 November 2021, Mr Anson applied to the tribunal for review of the 23 November 2021 refusal decision. A hearing was conducted on 7 April 2022. Mr Anson gave sworn evidence in person. The tribunal had before it documents provided by Child Support (244 pages), a copy of which was provided to Mr Anson prior to the hearing.

9. Relevant aspects of the evidence are referred to in the consideration below.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (the Registration Act) and the Child Support (Assessment) Act 1989 (the Assessment Act). The tribunal also had regard to the Child Support Guide, the Australian Government’s online technical and policy guide to the administration of the child support scheme.

2. The issue in this case is whether Mr Anson should be granted an extension of time within which to object to Child Support’s 17 February 2021 decision to change the assessment.

CONSIDERATION

1. Under section 80 of the Registration Act, a liable parent such as Mr Anson can object to a Child Support decision to make or refuse to make a determination under Part 6A of the Assessment Act about a departure from the administrative assessment. Section 81 of the Registration Act provides that such an objection must be lodged within 28 days from when notice of the decision is given to the person.

2. Under section 82 of the Registration Act, a person may apply for an extension of time in which to lodge an objection. Such an application “must state fully and in detail the grounds of the application, including the circumstances concerning, and the reasons for, the failure by the person to lodge the objection as required by section 81”.

3. Section 83 of the Registration Act provides that the Registrar must consider the application for an extension of time, grant or refuse the application and advise the person of the decision in writing. If refused, section 89 of the Registration Act allows the person who applied for the extension of time to apply to this tribunal for review of that decision.

4. The Registration Act does not set out the criteria to consider when determining an application for an extension of time within which to object. The Child Support Guide, at 4.1.5 ‘Extensions of time to lodge objections’, states that the key factors are the reason for the delay, whether the person has rested on their rights, the merits of the objection and any potential prejudice to the other party or the general public. These factors are consistent with general principles of administrative law and the tribunal identified no reason to depart from them.

Reasons for the delay and whether Mr Anson rested on his rights

1. The combined effect of sections 160 and 163 of the Evidence Act 1995 is that Mr Anson can be assumed to have received the 17 February 2021 change of assessment decision by 9 March 2021, the twelfth business day after the 18 February 2021 date on the accompanying letter (8 March 2021 was a public holiday). Mr Anson therefore had to lodge his objection within 28 days, or four weeks, from 9 March 2021, that is, by 6 April 2021.

2. Mr Anson lodged his objection on 10 November 2021, more than 30 weeks after he received notice of the change of assessment decision. He did have recorded contacts with Child Support about making an objection on 16 July 2021, over 13 weeks after the decision, and 28 August 2021, over 20 weeks after the decision.

3. The tribunal accepted that in his 16 July 2021 contact with Child Support Mr Anson may have been confused about the way in which the change of assessment decision impacted his ability to lodge an income estimate. However, the 28 August 2021 record of contact shows that the objection process was clearly explained to him and Mr Anson is recorded as stating that he understood.

4. While discussing why he did not object in time, Mr Anson told the tribunal of the difficulties he has experienced since the breakdown of his relationship with [Ms A]. Many of these relate to care of the children and associated proceedings. One example was the issuing of a family violence order against him which has since been determined to be based on inaccurate information. When Mr Anson was found not to have complied with that order, he was imprisoned for [a period] in September 2020 during which time someone tried to attack him with a [weapon]. Mr Anson has since been diagnosed with post-traumatic stress syndrome for which he is receiving treatment.

5. Mr Anson’s situation is made worse by the fact that he has literacy problems; he estimates his reading age to be around Year 6. He relies on people such as his brother to assist him in understanding more complex material. He is also the main carer for his youngest [children] which places demands on his time.

6. While the tribunal could understand the reasons for Mr Anson’s delay, it was not satisfied that those reasons warranted the delay of more than 30 weeks in lodging an objection.

Merits of the objection

1. The 17 February 2021 change of assessment decision assigned Mr Anson an income of $71,640, an average of his taxable income for 2017/18, 2018/19 and 2019/20. In attributing this income to Mr Anson, the decision-maker noted that Mr Anson previously ran a [service] company with [Ms A]; he has worked as [an occupation 1] for many years; social media posts strongly link him to [Business 1], a company Mr Anson states is solely run by his current partner; the information provided by Mr Anson was inconsistent; and Mr Anson did not provide requested financial information.

2. Mr Anson told the tribunal that the basis of his objection is that he does not earn the income attributed to him by that decision. Mr Anson said that he has made the choice to be a stay-at-home parent to his [children] with his current partner, the youngest of whom was only born in 2021. He occasionally assists with the company if necessary.

3. Without relevant financial information it is not possible to assess what benefit, if any, Mr Anson may derive from [Business 1]. Also needed is evidence of what role, voluntary or not, Mr Anson plays in the company’s operations. The tribunal noted that in his 27 August 2021 contact with Child Support Mr Anson stated that he had lots of evidence to provide, however, he did not provide any additional documents. This appears to relate to Mr Anson’s concerns about his partner’s privacy.

4. Overall, without the provision of additional, relevant information, it was difficult for the tribunal to assess Mr Anson’s objection as having sufficient merit to warrant an extension of time. The tribunal is satisfied on the available evidence that Mr Anson was previously given enough opportunity to provide that information.

Prejudice to the other party

1. If Mr Anson’s objection were successful, [Ms A] would be assessed to have received a significant overpayment of child support. This would constitute prejudice to her.

Prejudice to the general public

27.The general public has the right to expect that a matter such as an objection to a change of assessment decision will be dealt with in a timely manner. The tribunal was not persuaded that the circumstances of this case are such as to warrant challenging that expectation.

Conclusion

1. The tribunal found that Mr Anson’s delay in lodging an objection, although understandable, was over long in the circumstances; that there was not enough evidence to find that Mr Anson had an arguable case; and that there would be prejudice to the other party and the general public if an extension of time were granted. The tribunal therefore concluded that the interests of justice are best served by refusing to grant Mr Anson an extension of time in which to lodge an objection.

DECISION

The decision under review is affirmed.