Chanakila and Child Support Registrar (Child support)
[2025] ARTA 948
•16 May 2025
Chanakila and Child Support Registrar (Child support) [2025] ARTA 948 (16 May 2025)
Applicant/s: Mr Chanakila
Respondent: Child Support Registrar
Tribunal Number: 2025/PC029406
Tribunal: Member H Casey
Place: Hobart
Date:16 May 2025
Decision:
For the decision to refuse an extension of time to object to the following decisions, the Tribunal affirms the decision:
decisions dated 23 September 2018, 19 August 2019, 22 March 2020, 05 December 2020, 03 November 2021 and 05 October 2022.
For the decision to refuse an extension of time to object to the decision made on 17 October 2023, the Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the following orders:
that Mr Chanakila’s objection dated 16 January 2024 to the decision about his 2022/23 income made on 17 October 2023 was lodged within time and an extension of time is not required.
CATCHWORDS
CHILD SUPPORT – extension of time to object – eight decisions to apply provisional incomes to child support assessments – father in reciprocating country for some time and not earning income – ATO status ‘return not needed’ – unable to access MyGov and became aware of decisions after returning to Australia – notices validly served to MyGov account or notified address – delay in objecting – objections to first seven decisions out of time – notification of last decision not sent and objection within time – recent change to relevant law and some merit to application – prejudice to other parent and general public – decision under review set aside and remitted
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
This application is about a decision made by Services Australia (Child Support) to refuse to accept an application from Mr Chanakila for an extension of time to object to a number of earlier decisions.
Mr Chanakila and [Ms A] have had a child support assessment since 2013. On numerous dates between 2018 and 2023 Child Support made decisions to apply incomes for the 2016/17 to 2022/23 financial years for Mr Chanakila in his child support assessments. These decisions are explained in more detail below.
On 16 January 2024[1] Mr Chanakila lodged an objection with Child Support about the income decisions, including an application to extend the time in which to object.
[1] The Tribunal notes the decision from Child Support repeatedly refers to an objection and extension application being made on 16 January 2023 but based on there being no evidence of an objection of this date in the papers the Tribunal takes this as a typographical error.
On 26 February 2025 Child Support refused Mr Chanakila’s request for an extension of time.
On 27 February 2025 Mr Chanakila applied to the Administrative Review Tribunal (the Tribunal) for review of this decision.
The Tribunal held a hearing with Mr Chanakila on 22 April 2025. Mr Chanakila gave sworn evidence during the hearing with the assistance of an interpreter. The Child Support Registrar did not participate in the hearing.
The Tribunal and Mr Chanakila have been provided with relevant documents about the decision under review from the Child Support Registrar (hearing papers numbered 1–161) and these have been considered by the Tribunal.
The Tribunal requested missing information from the Child Support Registrar about the dates of some income decisions, the method of service and the incomes used in the assessment, and these additional documents were received by the Tribunal on 2 May 2025 and provided to Mr Chanakila. These documents were also taken into account.
ISSUES
The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (the Act) and the Child Support (Assessment) Act 1989 (the Assessment Act).
The issues which arise in this case are:
1)What were the decisions Mr Chanakila was attempting to object to?
2)Did Mr Chanakila object outside of the 28-day period to each of these decisions?
3)If so, should an extension of time be granted to allow Mr Chanakila’s objection to those decisions to be considered by the Child Support Registrar?
CONSIDERATION
Section 81 of the Act provides time limits for lodging an objection to a decision made by Child Support. For residents of Australia, the Act provides that the time limit is ‘within 28 days after the decision first comes to the notice of the person’. That timeframe is extended to 90 days for residents of a reciprocating jurisdiction. While Mr Chanakila was in [Country] for some years, and [Country] is a reciprocating jurisdiction, his evidence was that Child Support did not make any residency decision, and by the time they were aware he had been in [Country], he had permanently returned to Australia. In any event, as can be seen below, Mr Chanakila would still have been out of time to object.
Section 82 of the Act allows people to apply to the Child Support Registrar for an extension of time to object if they have not done so within the required timeframe. The section states that the application must be made in the manner specified by the Child Support Registrar, and ‘must state fully and in detail the grounds of the application, including the circumstances concerning, and the reasons for, the failure by the person to lodge the objection as required by section 81’.
Section 83 of the Act requires that Child Support consider the application and grant or refuse it within a certain timeframe. If the application is not granted, subsection 89(1) of the Act provides that the person may apply to the Tribunal for review of that decision.
Issue 1 – What were the decisions Mr Chanakila was attempting to object to?
The objection decision refers to the following decisions being the subject of Mr Chanakila’s objection:
On 22 March 2020, we made the decision to apply Mr Chanakila’s 2016/2017 assessed adjusted taxable to the assessment from 1 November 2017.
On 22 March 2020, we made the decision to apply Mr Chanakila’s 2017/2018 assessed adjusted taxable to the assessment from 1 November 2018.On 22 March 2020, we made the decision to apply Mr Chanakila’s 2018/2019 ATO assessed adjusted taxable to the assessment from 1 October 2019.
However, the records of Mr Chanakila’s objection dated 16 January 2024 and subsequent telephone conversation with Child Support on 18 January 2024 show that Mr Chanakila clearly confirmed he was attempting to object to all incomes used for 2016/2017 to 2022/2023 as he had a $0 taxable income in those periods. Some of the incomes used in those periods by Child Support were taxable incomes and some were provisional. He said he had spoken to the Australian Taxation Office (ATO) and the 2016/2017, 2017/2018 and 2018/2019 incomes were fraudulently lodged under his name and were going to be cancelled. Child Support advised him that where they had no other incomes a provisional ‘2/3 MTAWE’ (Male Total Average Weekly Earnings) figure had been applied.
The hearing papers indicate that Mr Chanakila’s objection was not progressed for around a year despite his ongoing attempts to resolve his concerns, and when the objection was continued with, the objections officer only considered the objection (and extension of time application) to relate to ‘3’ decisions made on 22 March 2020. Based on the letters issued by Child Support and the income screens provided, the Tribunal is satisfied that only two income decisions were made on 22 March 2020 (about the 2016/17 and 2018/19 incomes). The 2017/18 income decision was made on 23 September 2018.
Mr Chanakila confirmed at hearing that he was trying to object to all the incomes he listed in his objection, up until the point the $0 2022/2023 income applied.
The Tribunal is satisfied based on Mr Chanakila’s evidence and the objection and file notes and letters in the hearing papers that he was attempting to object to decisions about incomes made by Child Support on the following dates:
·23/09/2018: 2017/18 provisional income $34,250 from 01/11/2018
·19/08/2019: 2018/19 provisional income $50,076 from 01/10/2019
·22/03/2020: 2018/19 taxable income $32,886 from 22/03/2020
·22/03/2020: 2016/17 provisional income $32,869 from 01/11/2017 (fully replacing a cancelled taxable income that was previously determined)
·05/12/2020: 2019/20 provisional income $33,708 from 01/01/2021
·03/11/2021: 2020/21 provisional income $52,638 from 01/12/2021
·05/10/2022: 2021/22 provisional income $54,125 from 01/11/2022
·17/10/2023: 2022/23 provisional income $55,016 from 01/12/2023
Despite the objections officer only referencing 3 of these decisions, albeit with one on the wrong date, the Tribunal finds that the 8 decisions are the subject of the extension of time application.
Issue 2 – Did Mr Chanakila object outside of the 28-day period to each of these decisions?
The supplementary material received from Child Support shows the method of service for the above decisions as follows:
·23/09/2018: method of service not confirmed but letter addressed to a [Suburb] WA postal address
·19/08/2019: method of service not confirmed but letter addressed to a [Suburb] WA postal address
·22/03/2020: online read (2 decisions are contained in the one letter)
·05/12/2020: printed (posted to a [Suburb] WA address)
·03/11/2021: online read
·05/10/2022: online read
·17/10/2023: deleted (Child Support also noted it was not sent).
Mr Chanakila’s evidence is that he was unaware of these decisions until early 2024. His evidence at hearing is that he travelled to [Country] in 2016 with the intention of staying around 3 months, however circumstances changed, and he ended up staying until April 2022, initially due to personal and family reasons and later COVID-19 impacted travel for some of that time. He assumed he could access his online account via myGov in [Country], but he ended up not being able to access it as he needed a new SIM and new phone number once he was overseas. He said that he assumed that he did not need to contact Child Support while he was overseas anyway, because he thought that they would automatically see from ATO records that he was not earning an income and therefore he thought he would not have a child support liability in that time. He did not advise Child Support of any changes to his postal or online addresses in this time.
He said when he returned to Australia it took some months to get his identity documents sorted out and it meant he was unable to access his myGov account in that time. Once he finally did get access around a year after arriving, he could see some letters that had been issued to him and saw he had a debt. He could not recall what specific letters or decisions he was able to view. He believes he contacted Child Support around 3–4 days after logging on. He said he did not have any post collected for him as he had been in a rental property when he left Australia and that did not continue to be his address.
Regulation 31 of the Child Support (Registration and Collection) Regulations 2018 (the Regulations) prescribes how Child Support may serve notices on a person. This includes by ‘leaving it at the person’s address for service’ or ‘by sending it by pre-paid post to the person’s address for service’. If the person has consented to receiving the notice by way of electronic communication, this includes delivering the notice to an electronic address (which covers letters delivered online such as via myGov). Section 14A of the Electronic Transactions Act 1999 states that such a notice is received when it reaches an electronic address designated by the person who is to receive it. As Mr Chanakila’s evidence is that he used myGov and his Child Support online account for communications with Child Support, the Tribunal is satisfied that the relevant letters served ‘online’ were served on the dates they were issued, regardless of what date they were subsequently read online. Child Support had no reason to presume that this address for service had changed as Mr Chanakila did not notify them.
In respect of the decisions not served ‘online’, the records from Child Support show the letters were all addressed to the same address in Western Australia. Mr Chanakila had not informed Child Support that he had left Australia or that his address had changed.
Regulation 34 of the Regulations provides that the address for service last notified by a person to Child Support as their address for service is that person's address for service. If no address for service has been notified but Child Support's records contain an address for the person, the last such address is the person's address for service. Regulation 31(2) states that unless the contrary is proved, service by pre-paid post is taken to have been effected at the time when the notice would in the ordinary course of the post have arrived at the place to which it was addressed. The Tribunal does not need to calculate exact dates on which service would have been effected, as the presumed dates of arrival for the posted letters in 2018, 2019 and 2020 would all be well before the objection was received in 2024.
Accordingly, Mr Chanakila’s objections to the above decisions are out of time.
In respect of the decision dated 17 October 2023, Child Support’s records show the letter was deleted, and a note in the hearing papers confirms it was not sent. On 10 January 2024, prior to objecting, Mr Chanakila lodged an online income tax declaration (ITD) for the 2022/23 financial year of $0. This was accepted by child support on the same date and applied from that period onwards. At hearing Mr Chanakila confirmed he was objecting to the higher 2022/23 provisional income that applied from 1 January 2023 to 9 January 2024. There is no evidence he was served with the 17 October 2023 letter by any means, and Mr Chanakila said he lodged his $0 ITD for this and other years, along with his RNN notices and then later the objection in response to seeing a debt had been raised for the preceding years. The Tribunal finds that Mr Chanakila was not served with this letter and accordingly, that objection is not out of time.
Issue 3 – Should an extension of time be granted to allow Mr Chanakila’s objection to the decisions to be considered by the Child Support Registrar?
The Act does not specify what the relevant considerations are when making a decision to grant or refuse an application for an extension of time to object, aside from the references in section 82 to the circumstances concerning, and the reasons for, the failure by the person to lodge the objection within time.
The courts have outlined relevant factors for decision makers to consider in extension applications generally, and these have been effectively summarised and adopted by Child Support in the Australian Government policy document known as the Child Support Guide (the Guide), which can be found online at .
At 10.2.5 the Guide states that when determining whether to grant an extension of time, Child Support will consider the reasons for delay, whether the parent rested on their rights, the merits of the objection, and any prejudice to the other parent or the general public. An extension of time will not be granted simply because a parent has made out any one of the above factors, but rather all factors must be considered and given appropriate weight, and no single factor will be conclusive on its own. The Tribunal has considered each of these factors in coming to a decision.
Reasons for delay and whether Mr Chanakila rested on his rights
The reasons for delay have been partly detailed above. Once Mr Chanakila returned to Australia at the end of April 2022 his first recorded contact with Child Support was 10 January 2024 when he lodged some online income tax declarations and then his objection a few days later. While the Tribunal accepts that Mr Chanakila may have had difficulty accessing or reinstating access to myGov and/or his online Child Support account, there were other means by which he could have contacted Child Support when he was overseas and back in Australia. Despite his misunderstanding that he would not have to pay Child Support because of his nil income, he was aware that he had a child support case, he was aware that his address had changed without Child Support’s knowledge, and he was aware that he had gone many years without accessing his online account. Despite this he did not contact Child Support until 2024. The Tribunal accepts that once he was aware of the incomes and child support arrears, he actively contacted Child Support about these issues over the course of a year and that Child Support did not properly progress his objection and their action also caused delays. However, this does not mean that Mr Chanakila’s earlier delays can be ignored.
Mr Chanakila also said that he was nervous to contact child support and didn’t want to unnecessarily disturb things.
The Tribunal finds that Mr Chanakila rested on his rights and did not have a good reason for the delay.
The merits of the objection
If Mr Chanakila is granted an extension of time, his objection to the above decisions regarding his income will need to be considered. The Tribunal needs to consider whether Mr Chankila has an arguable case if that objection was to proceed.
The incomes used by Child Support in the relevant periods are detailed at paragraph 19. All but one of these are ‘provisional’ incomes.
Mr Chanakila provided evidence that his ATO status was ‘RNN’ (return not needed) for each of these financial years. His evidence was that he earned no income in [Country] and was fully supported by his family there.
The papers at page 111 indicates Child Support conducted a search of taxation information on 18 January 2024 which showed the incomes for 2016/2017, 2017/2018 and 2018/2019 were cancelled. The papers show the 2018/19 cancelled ATO income is still recorded as being used in the assessment. At hearing Mr Chanakila was unclear what the outcome of the ATO investigation into the alleged fraud was, aside from their later confirmation of his RNN status for all relevant years of income.
The decision to refuse the extension of time made by Child Support sheds no light on the issues and seems to base the refusal on there being no merit to the objection because the ‘taxable’ incomes used in those periods were ‘correct’ despite any information to support that. There is no mention of those incomes being cancelled by the ATO, or the RNN evidence for the same years.
An RNN advice is not a tax assessment of a parent’s income, and so Child Support is still required to determine that parent’s taxable income for relevant financial years. In this case Child Support was not aware of the RNN status when the relevant assessments were being made, and it seems that for all but the most recent income that the RNN status was unlikely to have been available when the assessments were made because Mr Chanakila only dealt with the ATO regarding those tax years on his return to Australia. Section 58 of the Assessment Act provides for the different incomes that can be used by Child Support when taxable income is not available. These incomes can be based on information Child Support has about the likely taxable income, an inflation of previous year taxable incomes, or an amount that is at least 2/3 of the MTAWE.
Based on the figures provided by Child Support, they used 2/3 MTAWE for the 2018/19 year (up until a lower taxable income was available, despite Child Support also recording that taxable income was showing as ‘cancelled’ in ATO records), and the 20/21–22/23 years. The other years are default incomes that are lower amounts and there is no information in the hearing papers about how they were calculated. Earlier incomes used in the assessment were not provided by Child Support. Mr Chanakila’s evidence was that prior to leaving Australia in 2016 he worked and lodged ATO incomes, and so it seems likely that the provisional incomes around $32,000–$34,000 were inflations of earlier taxable incomes.
The law has been changed about the impact of RNN incomes on child support assessments from the 2022/23 year onwards. Section 58 was amended so that if a parent lodges a RNN advice for the 2022–23 and subsequent financial years, Child Support may determine the parent’s adjusted taxable income to be equal to the self-support amount that applied on 1 January of the financial year for which the RNN advice applied (which gives the effect of a $0 income in the assessment). If a parent lodged a RNN advice for the 2021/22 or prior financial years, the Assessment Act requires Child Support to determine the parent’s income for the relevant financial year based on the most recent information available using the options outlined above at paragraph 41.
There is some merit to the objection on the basis that Child Support could remake section 58 income determinations taking into account the new information.
Mr Chanakila said that in addition to lodging an ITD of $0 for the 2022/23 year, about which a decision was made, he also lodged ITDs of $0 for previous years based on his RNN notifications from the ATO. There is reference in file notes to Child Support stating they would need to consider those applications and whether to backdate his incomes after considering Regulation 11. Section 58A of the Assessment Act provides for provisional incomes to be updated if Child Support subsequently ascertains the person’s taxable income for the relevant year of income. Regulation 11 of the Child Support (Assessment) Regulations 2018 prescribes circumstances in which section 58A may be used to consider backdating a change to the income, including circumstances relating to the person being an overseas resident who was not required to lodge in Australia, and other exceptional circumstances, where the person then goes on to give the information to Child Support within a reasonable time.
No decisions appear to have been made based on the hearing papers and the additional material requested by the Tribunal. The Tribunal notes that regardless of an objection, Mr Chanakila may wish to raise with Child Support whether they will make any new retrospective income decisions based on his ITDs for the relevant years.
Any prejudice to the other parent
The parent assessed to received child support ought to be able to rely on the past decisions made by Child Support and the assessment amounts after the period to object is over.
If the objection was to proceed now and Mr Chanakila successfully reduced his assessments back to the period his 2016/17 income was used, this would result in an overpayment to [Ms A] for any amounts already collected. She would also be out of time to seek retrospective administrative changes to the assessment (through the Change of Assessment in Special Circumstances process provided for in part 6A of the Assessment Act) if the reduced incomes make the assessment unfair.
The Tribunal considers there is prejudice to the other parent.
Prejudice to the general public
Mr Chanakila was asked at hearing why he ought to be able to object so far out of time when others generally had to do so within 28 days. He said that he didn’t understand Child Support’s rules and had the misconception he would not have to pay anyway because they should have known from the ATO he had no income in the relevant years.
While this may have been his misunderstanding, Mr Chanakila still delayed contacting Child Support for an excessive period despite being aware he had an assessment in place, and did not update his address for service. The Tribunal considers it would be prejudicial to the general public if the late objection was allowed to proceed in these circumstances.
Conclusion
The Tribunal considers that despite there being some merit to the objection, on balance, consideration of all the relevant factors together (and particularly the extensive delay between Mr Chanakila returning to Australia in April 2022 and his contact with Child Support in January 2024) weigh against granting an extension of time.
DECISION
For the decision to refuse an extension of time to object to the following decisions, the Tribunal affirms the decision:
decisions dated 23 September 2018, 19 August 2019, 22 March 2020, 05 December 2020, 03 November 2021 and 05 October 2022.
For the decision to refuse an extension of time to object to the decision made on 17 October 2023, the Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the following orders:
that Mr Chanakila’s objection dated 16 January 2024 to the decision about his 2022/23 income made on 17 October 2023 was lodged within time and an extension of time is not required.
| Date of hearing: | 22 April 2025 |
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