Dowson and Child Support Registrar (Child support)

[2021] AATA 3365

Dowson and Child Support Registrar (Child support) [2021] AATA 3365 (10 August 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2021/SC021718, 2021/SC021719, 2021/SC021720 & 2021/SC021721

APPLICANT:  Ms Dowson

OTHER PARTY:  Child Support Registrar 

TRIBUNAL:Member P Jensen

DATE OF DECISION:  10 August 2021

CATCHWORDS

CHILD SUPPORT – refusal to grant an extension of time to object – estimate decision - reasonable explanation for the delay in lodging the objection late – some prospects of objection succeeding and therefore there is arguable merit – the extension of time should be granted - 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.

DECISIONS:

The decision to refuse Ms Dowson’s application for an extension of time in which to object to an estimate decision dated 11 November 2020 is set aside and, in substitution, the application is granted.

The decision to refuse Ms Dowson’s application for an extension of time in which to object to an estimate decision dated 3 December 2020 is set aside and, in substitution, the application is granted.

The decision to refuse Ms Dowson’s application for an extension of time in which to object to an estimate decision dated 22 December 2020 is set aside and, in substitution, the application is granted.

Ms Dowson objected within time to the estimate decision dated 19 January 2021, which was amended by the Registrar on 10 February 2021. Ms Dowson therefore did not need to apply, and could not validly apply pursuant to section 82 of the Child Support (Registration and Collection) Act 1988, for an extension of time in which to object to that decision.

REASONS FOR DECISIONS

1. Ms Dowson provided a number of estimates of income to what is commonly called the Child Support Agency or CSA. On the CSA’s account of events, it decided to accept the estimates that Ms Dowson provided. Ms Dowson objected to some of those decisions and applied for extensions of time in which to object. The CSA decided to refuse her extension of time applications. She applied to the Tribunal for review of those decisions.[1] I heard the matters on 10 August 2021. Ms Dowson gave sworn evidence by conference phone.

   [1]A further complication was the fact that Ms Dowson’s applications for review by the Tribunal were lodged out of time. She applied for extensions of time in which to make those applications and the Tribunal, differently constituted, granted those applications.

2. Ms Dowson objected to the CSA’s decisions to accept particular estimates of income from 17 August 2020, 1 November 2020, 1 December 2020 and 11 January 2021. The respective decisions were made on 11 November 2020, 3 December 2020, 22 December 2020 and 10 February 2021.[2] To object to each decision within time, Ms Dowson needed to object within 28 days of being notified of each decision: section 81 of the Child Support (Registration and Collection) Act 1988. She objected on 15 February 2021. Her objections to the first three decisions were lodged out of time. She validly lodged extension of time applications in respect of those three decisions pursuant to section 82 of the Child Support (Registration and Collection) Act 1988. Her objection to the fourth decision was lodged within time but it appears that an objections officer has not yet made a decision in respect of that objection. The CSA should arrange for that to occur.

   [2]The fourth decision was originally made on 19 January 2021 but the CSA amended it on 10 February 2021 and Ms Dowson was notified of the operative decision via a letter dated 10 February 2021.

3. In reviewing the CSA’s three decisions to not grant extensions of time in which to object, it is necessary to make a preliminary assessment of the merit of each objection, consider any explanation for Ms Dowson’s delay in objecting and consider any prejudice that might result from granting the extension of time applications: see generally Phillips v Australian Girls’ Choir and Another [2001] FMCA 109.

4. By way of background, Ms Dowson said she became unemployed in November 2019. She contacted the CSA on 17 June 2020 and provided an estimate of income for 2020-21. She said she was receiving jobseeker payments of $550 per week. The CSA decided to accept an estimate of income of $550 / 7 x 365 = $28,678 per annum from 1 July 2020. Ms Dowson did not object to that decision.

5. On 11 November 2020, Ms Dowson contacted the CSA. It made file notes of the conversation but, with respect, the file notes appear to be poor records of whatever was said. The first file note has a time stamp of 13:27 and it suggests that Ms Dowson merely informed the CSA that she had obtained employment with [Employer 1] and the CSA then informed her of the effect of its decision.[3] The second file note has a time stamp of 15:07 and it includes the following:

- [Ms Dowson] she is now working on contract for a new employer ending in December …
- [Ms Dowson] will need to contact us at the end of November and December to provide earnings

- When she enters new employment, she will need to contact us to update

[3]Page 114 of the hearing papers.

1. The CSA sent Ms Dowson a notice informing her that it had decided to accept her estimate of income of $37,877 per annum from 17 August 2020. An accompanying document suggests that Ms Dowson had estimated that during the period from 17 August 2020 to 30 June 2021, she would receive “gross income per pay” from [Employer 1] of $7,260, “gross income per pay” from [Employer 1] of $14,520 and “gross income per pay” from [Employer 1] of $11,220.[4]

   [4]Page 119 of the hearing papers.

2. At the hearing, Ms Dowson said she had remained unemployed until 17 August 2020 when she obtained employment with [Employer 2]. She said the CSA had incorrectly recorded her as being employed by [Employer 1], etc. She appeared to believe that she had been an employee of [Employer 2], but I infer that she had been self-employed; she was required to issue invoices for the work that she performed. She said that when she commenced working for [Employer 2] she was told that the work would probably end on 18 December 2020, but it might end before or after that date. She charged $650 + GST per day for her services and she generally worked for five days per week. The period from 17 August 2020 to 18 December 2020 is almost 18 weeks, and 18 x 5 x $650 = $58,500. She said that, at the time, she had not secured any further work and she noted that she had previously been unemployed from November 2019 to August 2020. If she provided that information to the CSA on 11 November 2020, it would suggest that she provided an estimate of income of approximately $58,500 per annum.

3. Ms Dowson said that on 21 September 2020 she was paid $7,260, on 28 October 2020 she was paid $14,520 and on 25 November 2020 she was paid $11,220. Those amounts appear in the documentation that the CSA sent to Ms Dowson on 11 November 2020.

4. On 3 December 2020, Ms Dowson contacted the CSA and lodged an estimate of income from 1 November 2020. The CSA made another very brief file note of the conversation.[5] It appears that Ms Dowson informed the CSA that she had received an additional payment of $13,860 — at the hearing she said she received that payment on 16 December 2020 — and the CSA decided to accept an estimate of income on the basis that Ms Dowson had informed it that during the period from 1 November 2020 to 30 June 2021 she expected to receive $13,860 plus a portion of the payments of $7,260, $14,520 and $11,220.[6] The CSA decided to accept an estimate of income of $53,772 per annum from 1 November 2020.

   [5]Page 131 of the hearing papers.

   [6]It appears that the CSA intended to apportion the initial three payments across the period from 17 August 2020 to 30 June 2021 and include the portion referrable to the period from 1 November 2020 to 30 June 2021 when calculating the estimate from 1 November 2020, but it erroneously included the portion of the initial three payments that, on the methodology adopted by the CSA, was referrable to the period from 3 December 2020 to 30 June 2021: page 131 of the hearing papers.

5. On 22 December 2020, Ms Dowson contacted the CSA and lodged an estimate of income from 1 December 2020. The CSA made another very brief file note of the conversation.[7] At the hearing, Ms Dowson said she told the CSA that the [Employer 2] work had ended on 18 December 2020 and she was unemployed. That information does not appear in the CSA’s file note. In any event, it appears that Ms Dowson informed the CSA that she had received an additional payment of $9,240 and the CSA decided to accept an estimate of income on the basis that Ms Dowson had informed it that during the period from 1 December 2020 to 30 June 2021 she expected to receive $9,240 plus a portion of the payments of $7,260, $14,520, $11,220 and $13,860. The CSA decided to accept an estimate of income of $77,290 per annum from 1 December 2020.

   [7]Page 147 of the hearing papers.

6. On 19 January 2021, Ms Dowson contacted the CSA and informed it that she had obtained employment with [Employer 3] on 11 January 2021 and she was being paid $1,826 per week, which equates to $95,212 per annum, and she expected to continue earning that income until at least the end of the financial year. The CSA decided to accept an estimate of income of $95,212 per annum from 11 January 2021. However on 10 February 2021 the CSA decided to amend its decision. It concluded that it had omitted to include portions of the income that Ms Dowson had earned during the period from 17 August 2020 to 18 December 2020 in her estimate of her income from 11 January 2021. It decided to accept an estimate of income of $169,903 per annum from 11 January 2021. Ms Dowson was notified of the amended decision via a letter dated 10 February 2021. As noted earlier, she promptly objected to that decision.

7. In summary, Ms Dowson has belated objected to three estimate decisions. She provided those estimates pursuant to section 62A of the Child Support (Assessment) Act 1989. On each occasion, she was required to estimate the quantum of her adjusted taxable income for the remainder of 2020-21, which was then converted to a rate of income. The CSA could only accept or refuse the estimate that Ms Dowson provided, and it could only refuse an estimate if it believed that it was an under-estimate: section 63AA of the Child Support (Assessment) Act 1989. At the hearing, Ms Dowson said she informed the CSA of the income she was earning from month to month. It seems unlikely that she would have informed the CSA that she was receiving monthly lump sums in respect of the remainder of the financial year, but that is the way the CSA has effectively recorded the conversations. The conversations were presumably audio recorded but I did not consider it necessary to obtain copies of the CSA’s audio recording for the purposes of making a preliminary assessment of the merit of Ms Dowson’s objections. There is reason to believe that Ms Dowson did not provide the estimates that the CSA purported to accept. There appears to be merit in her objections.

8. As an aside, it appears that the estimate provisions were ill-suited to Ms Dowson’s circumstances. Her evidence can be summarised as follows:

Period  Rate of income  Quantum of income

01/07/20 - 16/08/20  $550/wk =  $550 / 7 x 47 = $3,692     47 days   $28,678/yr   17/08/20 - 18/12/20          $56,100 / 124 x 365 =           $7,260 + $14,520 + $11,220 +     124 days   $165,133/yr            $13,860 + $9,240 = $56,100

19/12/20 - 10/01/21  nil  nil     23 days

11/01/21 - 30/06/21  $95,212/yr           $95,212 / 365 x 171 = $44,606     171 days     

1. For the administrative assessment of child support payable to have remained fair on a day-to-day basis from 17 August 2020, it would have been necessary for Ms Dowson to provide an estimate from 17 August 2020 of her current rate of income of approximately $165,133 per annum. However, as noted above, she was required to provide an estimate of her quantum of income for the remainder of the financial year and she had considered it likely that she would remain unemployed after her work with [Employer 2] ceased. I note that the CSA also informed Ms Dowson of the option of lodging a departure application, which is commonly referred to as a Change of Assessment: see generally 2.6.14 of the Child Support Guide which is published on the internet.

2. Ms Dowson did not promptly object to the three relevant decisions. At the hearing she explained that she had received conflicting information from CSA staff about how to provide her estimates of income and whether, regardless of the method that was adopted, her estimates would be fairly reassessed once the Australian Taxation Office had assessed her 2020-21 adjusted taxable income. She said it was only when the CSA decided to accept an estimate of $169,903 per annum while she was earning $95,212 per annum that she realised that she needed to have the CSA’s decisions reviewed. I accept her evidence on those issues.

3. The evidence provided by the CSA does not clearly show what estimates Ms Dowson provided; it only shows the estimates that the CSA decided to record Ms Dowson as having provided, and there are reasons to doubt the accuracy of those records. Further, the Australian Taxation Office has not assessed Ms Dowson’s 2020-21 adjusted taxable income. It is therefore difficult to know whether the final reassessment will result in decisions that are more favourable to Ms Dowson or the father of the children. However it appears that all of the relevant primary evidence, such as Ms Dowson’s conversations with the CSA and her records of her income, is readily available. There is merit in Ms Dowson’s objections and she has provided a reasonable explanation for her delay in lodging her objections. Given that she objected to one of the estimate decisions within time, it is preferable to grant Ms Dowson’s extension of time applications in respect of the other three objections and have the CSA conduct a review of all four estimates of income.

DECISIONS

The decision to refuse Ms Dowson’s application for an extension of time in which to object to an estimate decision dated 11 November 2020 is set aside and, in substitution, the application is granted.

The decision to refuse Ms Dowson’s application for an extension of time in which to object to an estimate decision dated 3 December 2020 is set aside and, in substitution, the application is granted.

The decision to refuse Ms Dowsons application for an extension of time in which to object to an estimate decision dated 22 December 2020 is set aside and, in substitution, the application is granted.

Ms Dowson objected within time to the estimate decision dated 19 January 2021, which was amended by the Registrar on 10 February 2021. Ms Dowson therefore did not need to apply, and could not validly apply pursuant to section 82 of the Child Support (Registration and Collection) Act 1988, for an extension of time in which to object to that decision.