Asplin and Catesby (Child support)

Asplin and Catesby (Child support) [2021] AATA 3852 (17 August 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/PC021827
APPLICANT:  Mr Asplin
OTHER PARTIES:  Child Support Registrar
Ms Catesby

TRIBUNAL:Member P Jensen
DECISION DATE: 17 August 2021
DECISION:

The objections officer’s decision dated 24 June 2021 and the original decision-maker’s decision dated 20 April 2021 are set aside and, in substitution, the Tribunal decides to not make a second original decision in respect of Mr Asplin’s application to have a payment of $18,000 on 13 May 2015 credited pursuant to section 71 of the Child Support (Registration and Collection) Act 1988.

Note: The first original decision in respect of the same application was made on 16 December 2020 and both parents had a right to object to that decision.

CATCHWORDS

CHILD SUPPORT – non-agency payment – whether payment ought to be credited – decision under review set aside as invalid – no subsequent decision made – review rights still exist

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

Mr Asplin and Ms Catesby are the parents of [Child 1]. A child support case was registered in September 2013 with what is commonly called the Child Support Agency or CSA. Ms Catesby elected to have the CSA collect Mr Asplin’s child support payable.
On or about 9 December 2020, Mr Asplin applied to have the following payments credited as non-agency payments, i.e. he applied to have the payments credited against his child support payable to the CSA:[1]
·    “During the period June 2015 to March 2016 [Ms Catesby] made withdrawals totalling $31,765 (see attached bank statements 10, 12, 13, 14). This included an $18,000 cash withdrawal on 13 May 2015 from the [Suburb 1] [Bank 1] branch.”
·    “The [vehicle of specified make and model] was in fact purchased by myself from a friend near the end of June 2015 for $4000 after I was released from remand on 10 June 2015.”
·    “In addition to the moneys provided and the purchase of the vehicle I can show the following payments were made; For swimming lessons $487.80 was provided.”
[1]Page 77 of the hearing papers.
Payments directly to Ms Catesby could be credited pursuant to section 71 of the Child Support (Registration and Collection) Act 1988 (“the Registration Act”) if certain requirements were satisfied. Payments to third parties could be credited pursuant to section 71A of the Registration Act if certain requirements were satisfied. One of the requirements of both sections was that the payment in question was intended by both parents to be credited against Mr Asplin’s child support payable.
On 16 December 2020 the CSA decided to not credit payments of $31,765, $4,000 and $487.80 as non-agency payments. On the same day it wrote to Mr Asplin and notified him of its decisions and its reasons for its decisions: “No Mutual Intention”.[2] Mr Asplin had a right to object to those decisions. His objection had to be in writing (but it did not have to be in a prescribed form) and it had to be lodged with the CSA within 28 days of him being notified of the decisions: section 80 of the Registration Act.
[2]Page 125 of the hearing papers.
On 12 January 2021, Mr Asplin contacted the CSA. Its file note includes the following:[3]
- Again advised customer that as no mutual intent could be confirmed he would need to object to the decision. [Mr Asplin] said he is objecting verbally to the decision based on the grounds mentioned. Due to [Mr Asplin’s] current circumstances the usual objection process will be difficult, so advised customer I will scrutinise evidence supplied based on dates and likely contact [Ms Catesby] again.
- Advised customer I will attempt to make a prison phone appointment to advise of further outcome and possible options available to him. …
[3]Page 129 of the hearing papers.
Later that day, Mr Asplin contacted the CSA again. Its file note includes the following:[4]
I advised that his [case manager] will need to examine the evidence he has provided & likely make further contact with [Ms Catesby], I advised once a decision is made his [case manager] will arrange contact with him.
[4]Page 130 of the hearing papers.
On one possible reading of the file notes, the CSA decided to waive the legal requirement that an objection by Mr Asplin had to be in writing. However, the CSA did not have the authority to waive that legal requirement.
The next relevant CSA document is a file note dated 6 April 2021:[5]
Obj forms posted
06/04/2021 11:00
Customer advised he wished to object to decision not to accept NAPS on 01/21
- outside of 28 day objection window although no app was provided to customer at the time he advised of wishing to object.
- Will attempt to make phone app to customer depending on capacity to do so.
[5]Page 131 of the hearing papers.
On 15 April 2021, Mr Asplin contacted the CSA again. Its file note concluded:[6]
- Urged [Mr Asplin] to fill out the objection form that we posted to him a week ago - this will start everything if he doesn’t agree with our decision re NAP.
[6]Page 132 of the hearing papers.
On 20 April 2021 the CSA decided to make an original decision to credit the payment of $18,000 on 13 May 2015 as a non-agency payment.[7] The CSA’s file note of its reasons for making that decision does not refer to the decisions dated 16 December 2020.
[7]Page 133 of the hearing papers.
Ms Catesby promptly objected to the decision dated 20 April 2021.
On 11 May 2021 the CSA received Mr Asplin’s written objection (dated 16 April 2021) to the decisions dated 16 December 2020. He ticked “Yes” to the question: “Is your objection being made more than 28 days … after the date shown on the letter?” A person can apply for an extension of time in which to object: section 82 of the Registration Act.
On 26 June 2021 an objections officer allowed Ms Catesby’s objection and decided to not credit the payment of $18,000 as a non-agency payment. The objections officer’s reasons for making that decision do not refer to the decisions dated 16 December 2020.
Mr Asplin promptly applied to the Tribunal for review of the objections officer’s decision. I heard the matter on 17 August 2021. Mr Asplin and Ms Catesby gave sworn evidence by conference phone.
It appears that the decision dated 20 April 2021 was made in ignorance of the fact that the decisions dated 12 December 2020 had already dealt with the payment of $18,000. If the second decision-maker had been aware of that fact, the appropriate course would have been to decline to make a second original decision in respect of the same payment because both parents had a right to object to the original decisions dated 16 December 2020, and making a second original decision in respect of the same payment would tend to thwart the legislatively prescribed review process. In the absence of a prompt objection by Mr Asplin or a decision to grant an extension of time in which to belatedly object, the decisions dated 16 December 2020 finally determined the matters with which they dealt.
During the hearing I explained the above to both parents and indicated that, on a preliminary assessment of the evidence and subject to any further evidence or submissions that they wished to provide, it appeared that the decision dated 20 April 2021 should not have been made and should now be set aside. They both agreed with those observations. Mr Asplin added that he had recently been in contact with the CSA about his written objection which the CSA received on 11 May 2021. He also referred to his reliance upon the information that the CSA had provided from time to time, some of which is reproduced above. They are matters that he can discuss with the CSA directly.

DECISION

Note: The first original decision in respect of the same application was made on 16 December 2020 and both parents had a right to object to that decision.

[2021] AATA 3852

17 August 2021

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Remedies

Standing