Barrow and Child Support Registrar (Child support)

[2023] AATA 1179

Barrow and Child Support Registrar (Child support) [2023] AATA 1179 (11 April 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/MC025237

APPLICANT:  Mr Barrow

OTHER PARTY:  Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  11 April 2023

DECISION:

The Registrar’s decision to refuse a non-existent application for an extension of time in which to object is set aside and, in substitution, the Tribunal does not make a decision in respect of that non-existent application.

CATCHWORDS

CHILD SUPPORT – refusal to grant an extension of time to object – non-existent application – decision under review set aside and substituted

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

1. Mr Barrow and [Ms A] are the parents of [Child 1]. A child support case was registered with the Child Support Agency (the CSA) in 2012.

2. The Child Support (Assessment) Act 1989 (the Assessment Act) provides for an administrative assessment of child support payable. If a parent lodges their tax returns promptly, the administrative assessment will be based on the parent’s adjusted taxable incomes as assessed by the Australian Taxation Office from time to time. Otherwise, the CSA will use provisional adjusted taxable incomes for that parent, subject to possible reassessments once the adjusted taxable incomes become known.

3. For many years, the CSA assessed Mr Barrow’s rate of child support payable on the basis of his provisional adjusted taxable incomes. In mid-2022, Mr Barrow belatedly lodged a number of tax returns. His actual adjusted taxable incomes were less than the provisional adjusted taxable incomes. He applied to be reassessed on the basis of his actual adjusted taxable incomes. Broadly speaking, the CSA could not retrospectively apply those adjusted taxable incomes unless there had been exceptional circumstances that had prevented Mr Barrow from providing the CSA with information concerning his adjusted taxable incomes in a timely manner and he had later provided that information as soon as was practicable in the circumstances: section 58A of the Assessment Act and regulation 11 of the Child Support (Assessment) Regulations 2018. On 26 July 2022 the CSA decided to not apply “your 2016–17, 2017–18, 2018–19 and 2019–20 adjusted taxable incomes to your child support assessment from an earlier date.” A letter dated 26 July 2022 informed Mr Barrow of that original decision.

4. Mr Barrow had a right to object to the original decision. Section 81 of the Child Support (Registration and Collection) Act 1988 (the Registration Act) relevantly provides that an objection “must be lodged by a person within 28 days after a notice of the decision is served on the person.” Subsection 163(1) of the Evidence Act 1995 states: “A letter from a Commonwealth agency addressed to a person at a specified address is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) to have been sent by prepaid post to that address on the fifth business day after the date (if any) that, because of its placement on the letter or otherwise, purports to be the date on which the letter was prepared.” Mr Barrow is presumed to have received the letter dated 26 July 2022 on 2 August 2022. To object within time, he needed to object by 30 August 2022.

5. On 4 August 2022 the CSA contacted Mr Barrow. He stated that he was homeless but he was continuing to receive mail via the postal address that was recorded on the CSA’s files.

6. On 11 August 2022, Mr Barrow contacted the CSA and expressed his disagreement with the original decision.

7. On 15 August 2022 and 16 August 2022, Mr Barrow and an employee of Victoria Legal Aid (the Representative) contacted the CSA about the original decision. On 17 August 2022 the Representative contacted the CSA about the original decision.

8. On 24 August 2022 the CSA contacted Mr Barrow. The CSA relevantly noted:[1]

   I discussed the timeframe to which he needs to lodge objection as its been 27 days since decision is made. I advised we would generally provided 10-12 days for postage and handling and then 28 days.

   [1]The CSA file notes dated 24 August 2022, 26 August 2022 and 2 September 2022 contain minor typographical errors which have been reproduced verbatim.

9. On 26 August 2022 the CSA contacted the Representative. The CSA relevantly noted:

   I advised I have made contacted with Mr Barrow and discuss objection timeframe

   I confirmed timeframe to object is 28 days plus 12 days postage and handling = 40 days from decision.

10. On 2 September 2022, Mr Barrow contacted the CSA. The CSA relevantly noted:

    Mr Barrow called to advise he hasn’t received his objection form.

    […]

    I asked if he could pop down to CLK and get the form printed. He stated yeah. […]

    I advised he has until the 03/09 (after review he until the 04/09) as he has 40 days to lodge the objection from when it was made.

11. On 2 September 2022, Mr Barrow lodged his objection. He believed that he had lodged his objection within time. He consequently did not apply for an extension of time in which to object. In fact, his objection was out of time by a couple of days: see paragraph 4 above. On 20 September 2022 the CSA noted that Mr Barrow had lodged his objection on 2 September 2022 and (in the CSA’s opinion) it had been due by 9 September 2022 and the objection “is currently within the timeframe by approximately 7 days.”

12. On 13 October 2022 the CSA proceeded on the fictitious basis that Mr Barrow had lodged an application pursuant to section 82 of the Registration Act for an extension of time in which to object. It appears that the CSA decided to refuse the non-existent application. A letter dated 13 October 2022 was sent to Mr Barrow which purported to inform him of that decision. Mr Barrow had a right to apply to the Tribunal for further review. To apply to the Tribunal within time, Mr Barrow needed to do so within 28 days of receiving a notice of the decision: section 29 of the Administrative Appeals Tribunal Act 1975. Mr Barrow applied to the Tribunal for review on 9 December 2022. If the letter dated 13 October 2022 was a notice of the CSA’s decision to refuse his (non‑existent) application for an extension of time in which to object, his application for review by the Tribunal was lodged out of time.

13. The CSA letter dated 13 October 2022 commenced: “EXTENSION OF TIME DECISION ALLOWED”. The letter stated that Mr Barrow did not have a valid reason for his delay in objecting, there was no merit in his objection, allowing the objection to proceed would prejudice [Ms A] and the wider community, and in summary, “[a]fter considering the above aspects, on balance we consider it fair to grant the extension of time request given as there is no merit to the objection.” The letter did not refer to the date on which Mr Barrow lodged his objection. It did not identify the date by which Mr Barrow needed to lodge his objection to be within time. It did not refer to the incorrect information that the CSA had provided to Mr Barrow concerning the date by which he needed to lodge his objection. It did not refer to the fact that he had complied with that incorrect information.

14. The CSA’s letter stating that it had granted Mr Barrow’s extension of time application did not constitute notice of its decision to refuse that application. Mr Barrow was not served with a notice of the decision. The 28-day period in which to apply for review by the Tribunal did not commence. Mr Barrow’s application for review by the Tribunal was lodged within time. I heard the application on 11 April 2023. Mr Barrow gave sworn evidence via MS Teams.

15. Returning to the CSA’s decision to refuse Mr Barrow’s non-existent application for an extension of time in which to object, that decision must be set aside. The CSA can only grant or refuse an extension of time application that has actually been made: section 83 of the Registration Act.

16. Mr Barrow still has the option of applying for an extension of time in which to object. The CSA would then be required to consider that application, having regard to all relevant circumstances including its provision of incorrect information concerning the date by which Mr Barrow was required to lodge his objection and his compliance with that incorrect information.

DECISION

The Registrar’s decision to refuse a non-existent application for an extension of time in which to object is set aside and, in substitution, the Tribunal does not make a decision in respect of that non-existent application.