Cabot and Child Support Registrar (Child support) - [2018] AATA 4420

Cabot and Child Support Registrar (Child support) [2018] AATA 4420 (11 October 2018)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2018/PC014772
APPLICANT:  Mr Cabot
OTHER PARTIES:  Child Support Registrar
TRIBUNAL:Senior Member R Ellis
DECISION DATE:  11 October 2018
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the extension application should be granted.

CATCHWORDS
CHILD SUPPORT – Refusal of application for extension of time to object – Unfamiliarity with process not a reasonable explanation for delay – Substantive application concerning categorisation of a lump sum payment as a financial resource may have merit – 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 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

Mr Cabot and [Ms A] are the parents of [Child 1] (born June 2004), [Child 2] (born May 2008), [Child 3] (born October 2011) and [Child 4] (born February 2013). Mr Cabot is the parent liable to pay child support.
There has been a child support assessment in place since 3 October 2011 and the children are recorded as being in the above primary care of [Ms A].
For the period 24 June 2017 to 30 June 2017, the annual rate is $46,672 based on Mr Cabot’s 2016-17 reconciled estimate of income of $287,133 and [Ms A’s] 2015-16 adjusted taxable income of $19,888.
For the period 1 July 2017 to 30 September 2017, the annual rate is $414 (the minimum annual rate) based on Mr Cabot’s 2015-16 adjusted taxable income of $16,813 and [Ms A]’s 2015-16 adjusted taxable income of $19,888.
For the period 1 October 2017 to 31 December 2018, the annual rate is $47,464 based on Mr Cabot’s 2016-17 adjusted taxable income of $287,133 and [Ms A’s] 2016-17 adjusted taxable income of $19,273.
On 28 September 2017 Mr Cabot applied to the Department of Human Services, Child Support (the Child Support Agency) for a change to the assessment.
On 30 November 2017 the Child Support Agency made the decision to change the assessment so that for the period 1 October 2017 to 30 June 2018 the adjusted taxable income for Mr Cabot was set at $21,329 (the original decision).
This was done on the basis of Mr Cabot’s income, property and financial resources (the ground commonly referred to as Reason 8A) and the effect of the decision was to reduce the arrears owed by Mr Cabot by $7,599.16.
On 3 July 2018 Mr Cabot objected to the original decision and as his objection was not made within the prescribed period he applied for an extension of time on the same date.
On 16 July 2018 the request for an extension of time was refused and on 9 August 2018 Mr Cabot sought a review by the Administrative Appeals…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] AATA 4420
Decision Date: 11 October 2018

CaseChat Overview and Summary

This matter concerned an appeal to the Federal Circuit Court of Australia by Cabot against a decision of the Child Support Registrar. The Registrar had refused Cabot's application for an extension of time within which to lodge an objection to a child support assessment. The core of the dispute revolved around whether Cabot had provided a sufficient explanation for the significant delay in lodging the objection.

The primary legal issue before the Court was whether the Registrar had erred in refusing the extension of time. This required the Court to consider what constitutes a "reasonable explanation" for a delay in lodging an objection under the relevant child support legislation, and whether Cabot's stated reasons met this threshold. A secondary, but related, issue was whether the substantive grounds of the proposed objection, concerning the categorisation of a lump sum payment as a financial resource, had sufficient merit to warrant consideration.

In reaching its decision, the Court acknowledged that while unfamiliarity with legal processes can sometimes be a factor, it is generally not considered a reasonable explanation for a substantial delay, particularly when the applicant has had access to information and support. However, the Court found that the Registrar had not adequately considered the potential merits of the substantive objection. The Court determined that the proposed objection, relating to the treatment of a lump sum payment as a financial resource, appeared to have arguable merit and that it would be unjust to deny its consideration solely on the basis of the delay.

Consequently, the Court set aside the Registrar's decision and substituted an order granting Cabot an extension of time to lodge his objection.

Orders