Byrne and Daley (Child support)
[2025] ARTA 2279
•15 August 2025
Byrne and Daley (Child support) [2025] ARTA 2279 (15 August 2025)
Applicant/s: Mr Byrne
Respondent: Child Support Registrar
Other Parties: Ms Daley
Tribunal Number: 2025/SC029304
Tribunal: Member S Letch
Place:Brisbane
Date:15 August 2025
Decision:The Tribunal sets aside the decision under review and, in substitution, decides that the Registrar ought not have exercised the discretion in section 75 of the Child Support (Assessment) Act 1989 to amend Mr Byrne’s adjusted taxable income for the 2012/13 financial year.
This means the application is successful.
CATCHWORDS
CHILD SUPPORT – child support assessment – amendment to father’s adjusted taxable income – department’s error in applying non-indexed and indexed provisional incomes – income tax returns lodged late – lump sum payment discharging all arrears made on basis of liabilities at the time – discretion to amend assessment or not – passage of time – retrospectivity requires extraordinary circumstances – possibility for mother to apply under compensation for detriment scheme – decision under review 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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.
Statement of Reasons
BACKGROUND
Mr Byrne was assessed as liable to pay child support to Ms Daley. This application concerns a recent decision by Child Support to retrospectively amend the child support assessment as a result of its admitted error in applying an incorrect income figure for Mr Byrne in respect of the 2012/13 financial year. The result is that Mr Byrne’s child support liability was retrospectively increased by roughly $2,000.
It is convenient by way of background to set out some extracts from the objections officer decision dated 4 February 2024:
DECISION UNDER REVIEW
The decision made on 22 March 2024 to:
Replace Mr Byrne's 2012/2013 provisional income of $104,080 with the original 2012/2013 provisional income of $117,603, used in the assessment for the period 23 November 2013 to 31 August 2014.Mr Byrne objected to this decision, stating we have made this decision, more than a decade after the fact, while being fully aware that his income for financial year (FY) ending 2013 was $27,422.
Mr Byrne states we were aware in 2019, Ms Daley accepted a lump sum payment of $20,000,
discharging him of all child support arrears. He stated it is absurd to assert that he owes Ms Daley $2087.19.…
REASONS FOR THE DECISION
Section 75 of the Child Support (Assessment) Act 1989 (CSA Act) allows for us to amend an assessment for the purpose of correcting any error or mistake whether or not made by us.
When deciding whether to correct (or not) an error, we will consider the objects of the Acts and the legislative requirements of the decision affected by the error. We can also consider circumstances including, but not limited to, the wishes of the affected parents, the integrity of the child support scheme, and the impact on each parent of correcting or not correcting the error.
…
As Mr Byrne’s 2012/2013 ATO adjusted taxable income (ATI) of $27,422 was lower than the
provisional income being used in the assessment and was lodged late (in accordance with ATO timeframes), the expected result would have been to continue to use the 2012/2013 higher indexed provisional income of $117,603 in the assessment. However, it was at this time the system error occurred and the lower recalculated indexed provisional income of $104,080 was determined and incorrectly applied to the assessment.On 22 March 2024, we corrected the error with Mr Byrne’s 2012/2013 provisional income, replacing it with the higher provisional income of $117,603.
…
It is clear a system error occurred where an incorrect provisional income was determined for Mr Byrne for FY 2012/2013. We have the jurisdiction to amend an assessment to correct any error or mistake, whether or not caused by us.
We acknowledge Mr Byrne’s incorrect provisional income for FY 2012/2013 was created through no fault of either parent, we can appreciate Mr Byrne feels a timeframe of several years is unreasonable to make a correction such as this, however these circumstances would not result in us deciding to not correct the identified error with Mr Byrne s provisional income.
As outlined earlier in this decision, Mr Byrne has lodged tax returns for all relevant years as discussed, however as they were lodged outside of the ATO lodgement timeframes and the taxable incomes were lower than the provisional incomes used in the assessment, the taxable incomes were not used in the assessment.
Considering the above information, we are satisfied the correct process was followed when we identified that Mr Byrne’s 2012/2013 provisional income of $104,080 were created in error, and we made the decision on 22 March 2024 to replace the income with the original 2012/2013 provisional income of $117,603. Mr Byrne s 2012/2013 ATO issued income did not replace the original provisional income in the assessment as they were lodged late and were lower than the provisional incomes used in the assessment.
We have accordingly made the decision to replace Mr Byrne's 2012/2013 provisional income of $104,080 with the original 2012/2013 provisional income of $117,603, used in the assessment for the period 23 November 2013 to 31 August 2014.
This objection is disallowed.
Mr Byrne and Ms Daley participated in the Tribunal’s hearing by conference telephone.
Mr Byrne told the Tribunal that the amount calculated is incorrect; there was already a “discharge agreement” in 2019 that ought to have alleviated him from any further debt. Child Support have “come back over a decade late” and taken his tax return, which caused hardship. He points to the original mistake which Child Support concedes it made and it would now be grossly unfair to increase his liability.
Ms Daley told the Tribunal she did not really understand why there were two different provisional incomes. She believes that Mr Byrne has income not reflected in his taxable income – she said she has a separate case before the Tribunal in relation to that issue. The agreement in 2019 “did not last long” – she did agree to forego some $38,000 but the “agreement fell apart as a private arrangement”. The agreement about co-parenting did not “work out”. Mr Byrne refuted that suggestion.
Application of the law
It seems to me section 75 of the Child Support (Assessment) Act 1989 provides a very broad and unfettered discretion to retrospectively amend a child support assessment necessary to “give effect to this Act or the Registration and Collection Act”.
It was open for Child Support to exercise the discretion to amend the assessment. But should they have done so? It was also within the Registrar’s discretion not to amend the assessment.
I consider there are a number of factors which weigh against the decision taken by the Registrar.
The admitted error by Child Support was not identified until more than a decade after it occurred. Mr Byrne negotiated the agreement in 2019 on the basis of his known liability at the time. The Child Support error plainly compromised Mr Byrne’s position.
As a general principle, the child support scheme jealously guards against retrospectivity (for example, in change in care notifications where a late increase in care only commences from date of notification, or the limit of 18 months (without leave of Court) to backdate “change of assessment” decisions). Here, the Registrar seeks to make a retrospective adjustment more than a decade after its own admitted error. Such an adjustment would require extraordinary circumstances in my view, and I do not consider any such circumstances exist. It would be unacceptably prejudicial to Mr Byrne for the adjustment to be made, particularly given the agreement made in 2019.
I also observe that Ms Daley’s position has likely been compromised by Child Support’s error. Her competing interest should not be ignored – her agreement in 2019 was based upon incorrect figures. I note that the Commonwealth administers a compensation scheme.[1] I am careful to observe this Tribunal has no role in or jurisdiction over that scheme. That scheme allows the Commonwealth to compensate for financial loss arising from its own defective administration. Ms Daley is at liberty to pursue a claim against the Commonwealth if she so chooses.
Conclusion
[1] The Compensation for Detriment caused by Defective Administration (CDDA) Scheme.
In my assessment, the great unfairness to Mr Byrne given the vast passage of time in addition to the agreement of 2019 strongly favour an exercise of the discretion not to amend the assessment.
As I have reached a different conclusion to the objections officer, the decision under review will be set aside.
DECISION
The Tribunal sets aside the decision under review and, in substitution, decides that the Registrar ought not have exercised the discretion in section 75 of the Child Support (Assessment) Act 1989 to amend Mr Byrne’s adjusted taxable income for the 2012/13 financial year.
| Date(s) of hearing: | Wednesday, 23 July 2025 |
| Representative for the Applicant: | Self-represented |
| Representative for the Other party: | Self-represented |
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