Askey and Askey (Child support)

[2018] AATA 1232

Askey and Askey (Child support) [2018] AATA 1232 (20 March 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/AC013317

APPLICANT:  Ms Askey

OTHER PARTIES:  Child Support Registrar

Mr Askey

TRIBUNAL:Senior Member B Harvey

DECISION DATE:  20 March 2018

DECISION:

The Tribunal affirms the decision under review.

CATCHWORDS
Child support – Application for an administrative assessment - Particular of the assessment - Date of lodgment - Decision under review affirmed

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

REASONS FOR DECISION

BACKGROUND

1. This matter concerns the application that Mrs Askey made to the Child Support Registrar seeking child support from Mr Askey for their children [Child 1]and[Child 2].  In the relevant law, that is called an application for the administrative assessment of child support.

2. There is only one issue: the date on which Mrs Askey’s application was made.   Once that date is determined, there is no dispute that it is from that date that Mr Askey is liable to pay Mrs Askey child support.

3. The Registrar has assessed child support as commencing from 30 June 2016 on a view that that is the day on which Mrs Askey applied.  Mrs Askey submits that her application was made much earlier because of actions she took online on that earlier day. 

4. Mrs Askey objected to the original Registrar decision on 21 September 2017, the Registrar having granted her an extension of time in which to do so.  On 3 January 2018, an objections officer, as the Registrar’s delegate, disallowed the objection.  On 18 January 2018, Mrs Askey applied to the Tribunal for a review.

CONSIDERATION

The relevant law

1. Relevantly, when the Registrar “accepts” an application, child support is payable from the day on which the application was made: subsection 31(b) of the Child Support (Assessment) Act 1999 (“the Assessment Act”).

2. Section 23 of the Assessment Act provides that an application is properly made if it satisfies four broad requirements, respectively in sections 24, 25, 25A and 27 of the Assessment Act.  There is no dispute that the children are children in respect of whom the application can be made, so section 25 is satisfied.  Mrs Askey is the children’s parent, so she satisfies section 25. There is no non-parent carer, so section 25A is also satisfied.  That leaves section 27, which says that “(a)n application for administrative assessment of child support must be made to the Registrar in the manner specified by the Registrar.”  The Registrar’s specification of manner appears to be limited to instruction 2.1.1 of the Child Support Guide.  I attach the relevant part of that instruction as an attachment.

3. The central question is therefore this: in the circumstances, on what date did Mrs Askey make her application?  That is, on what date did she first take the actions that the Registrar specified to be those that constitute a claim?

   Evidence and submissions

4. The documents contain records of an online application completed by Mrs Askey at about 5:15 pm on 30 June 2016.  There is no dispute that this is a properly made application.  However, Mrs Askey says that she went through the online process not long after she separated in mid-December 2016 and that her application was therefore made long before June.

5. Mrs Askey provided a document carrying a title “Application for a child support assessment”, a subtitle “Technical error” and text that apologises for the “unexpected problem” and requests contact by telephone if the problem persists.  She said that this was the product of her online claim process.  I opined that the first eight digits of the reference number in it (20160108) appeared to be a computer-formatted date of occurrence, consistent with the date that appeared at the top of the pages that appear in the documents at pages 40 and 42.  I commented that, on the basis of this document, I thought it more likely than not that Mrs Askey’s unsuccessful attempt to complete the online process took place on 8 January 2016.  Mrs Askey indicated that she had thought that she had done it earlier but accepted my view.

6. Mrs Askey said that because she saw a date, reference number and the words “application for child support”, she assumed that her application was made and that when it was processed by the Child Support Agency, she would get back paid.  She drew an analogy with a claim that she had once made for austudy payment, for which she had received a back pay when Centrelink granted the claim quite a while after she lodged it.  She accepted that it was not until June 2016 that she took any further action and that she made a complete online application on 30 June 2016.

7. Mr Askey submitted that he had no knowledge of actions taken by Mrs Askey.  He suggested that a reasonable response to receipt of technical error message would be to keep trying.

Conclusion

1. The Child Support Guide instruction cited (see attached) says that a person may apply for child support “by completing and lodging forms on DHS’s website.”  I consider that the requirement that the form be “lodged” brings into play the ordinary general law regarding claims and lodgement. To lodge a claim or an application, it must not only be given or sent by the applicant, it must also be received by the relevant entity, in this case the Registrar.  To use a traditional analogy, I might complete a paper claim form for, say, a Centrelink payment such as austudy payment.  To make the claim, Centrelink must receive it.  If I hand it to a Centrelink officer, I have lodged it and I have made the claim.  If I post it, it is only lodged and the claim is only made once it is received by Centrelink.  If it went astray in the post and never reached Centrelink, it is not lodged and I have not made that claim.

2. I consider that analogy to be applicable here.  I accept that Mrs Askey completed an online form on the Child Support Agency website on 8 January 2016.  However, the technical error meant that the Agency did not receive those forms, exactly as if a completed paper form went astray in the post and was never received.  The online forms were not “lodged”.

3. I acknowledge Mrs Askeys chagrin at the fact that she did what the online system required her to do and that she was frustrated in making the application by something outside her control.  However, as I have explained, an application for child support is a bilateral transaction; the applicant must complete and transmit an application and the Child Support Agency must receive it.  Only the first of those things happened on 8 January 2016 and the second did not happen until 30 June 2016.

4. Under the law, Mrs Askey made her application to the Registrar for child support on 30 June 2016 and the child support case must commence from that day.

5. The Registrar’s initial decision was the only correct decision under the law, so her objection should have been disallowed, and was.  I affirm that disallowance.

DECISION

The Tribunal affirms the decision under review.

How to apply for an assessment

The Registrar can specify the way in which an application for a child support assessment must be made (CSA Act sections 27 and 150A). A person can make an application:

·by telephoning DHS, or

·by completing and lodging forms on DHS's website, or

·in writing, by completing forms and lodging by email, mail, or fax, or

·a payee residing in a reciprocating jurisdiction must apply via the Central Authority in the jurisdiction where the payee resides.