Faulkner and Child Support Registrar (Child support)

[2024] AATA 880

Faulkner and Child Support Registrar (Child support) [2024] AATA 880 (4 March 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/BC027266

APPLICANT:  Mr Faulkner

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member I Sheck

DECISION DATE:  4 March 2024

DECISION:

The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the direction that Mr Faulkner is within the time limit in which to object to the decision of 7 September 2023.

CATCHWORDS

CHILD SUPPORT – registration details – decision to accept child support registration – whether notice of decision was served on liable parent – liable parent was not served with notice of decision - 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 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

1. Mr Faulkner and Ms [A] are the parents of [Child 1], born [date] 2017.  On 17 July 2023 [Ms A] contacted Services Australia – Child Support (“Child Support”) and registered an application for the assessment and collection of child support.  On 12 August 2023, an officer of Child Support wrote to Mr Faulkner to notify him that the application had been made.  The letter also stated, “[b]efore we process the application we would like to speak with you to ensure that the information we have is correct and to tell you more about child support.”  The letter was issued to Mr Faulkner at the address that had been provided by [Ms A], which was [deleted].  On 7 September 2023, a Child Support officer decided to accept the child support application.  Notice of the decision was issued to Mr Faulkner at the address provided by [Ms A].

2. On 26 September 2023, Mr Faulkner contacted Child Support and provided his email address, phone number and postal address.  The latter was [address].  On 27 November 2023, Mr Faulkner lodged an objection to the decision of 7 September 2023 to accept the child support registration with effect from 17 July 2023.  At question 7 of his application he provided reasons why the objection had not been lodged within 28 days of receiving the original decision.

3. On 22 December 2023, a Child Support officer refused to grant Mr Faulkner an extension of time in which to object against the original decision.

4. By application received on 28 December 2023, Mr Faulkner asked the Tribunal to review this decision. On 4 March 2024, the Tribunal conducted a hearing at which Mr Faulkner gave evidence by MS Teams audio.  The Tribunal had before it the relevant documents from Child Support (pages 1 to 118), which had been copied to Mr Faulkner.

ISSUES

1. The law relevant to this matter is contained in the Child Support (Registration and Collection) Act 1988 (“the Act”) and the Child Support (Registration and Collection) Regulations 2018 (“the Regulations”). Subsection 81(1) of the Act requires that a person must lodge an objection to a decision within 28 days after a notice of the decision is served on them. Section 82 of the Act then provides that if the objection is not lodged within the required 28 days then they may apply for an extension of the time period in which to object. The issues to be determined in this case are whether Mr Faulkner’s objection against the decision of 7 September 2023 was made outside of the prescribed time limit, and if so, whether he should be granted an extension of time in which to lodge that objection.

CONSIDERATION

1. Mr Faulkner has lodged an objection against the Registrar’s decision made on 7 September 2023, to accept the child support registration made by [Ms A] with effect from 17 July 2023.  The first point to be determined in this matter is the date on which notice of this decision was served on Mr Faulkner.

2. The provisions relating to the service of notices of decisions are set out in Regulations 31 and 34 of the Regulations, the relevant parts of which are as follows:

   31  Service of notices etc.

   (1) Any notice or other communication given by or on behalf of the Registrar under the Act may be served on a person:

   (a) if the person is a natural person:

   ...

   (iv) by sending it by prepaid post to the person’s address for service; or

   ...

   (2) If service has been attempted by use of prepaid post, then, unless the contrary is proved, service will be taken to have been effected at the time when the notice or other communication would, in the ordinary course of the post, have arrived at the place to which it was addressed.

   34  Address for service

   (1) The address last notified by a person to the Registrar as the address for service of the person is, for all purposes under the Act and this instrument, that person’s address for service.

   (2) If no address for service has been notified to the Registrar but the Registrar’s records contain an address attributed to the person, the last such address in any record held by the Registrar is the person’s address for service under the Act and this instrument.

3. Mr Faulkner told the Tribunal that the first correspondence he had received from Child Support was in late September 2023.  He and [Ms A] had previously shared [address].  After they separated he checked the box for mail on a number of occasions but there was never any mail for him.  It didn’t occur to him that [Ms A] had been taking all of the mail from the box.  After a couple of months he decided to get a separate mailbox, this being [mailbox], and put in place a mail redirection from the old post office box.  After doing this he received a number of letters from Child Support, the earliest of which stated that he owed a debt of over $1,300.  This was the first he knew about any child support assessment.  He had never received any phone calls from Child Support.  He then spent several more weeks “trying to sort it out”; in particular to explain that [Ms A] had applied for child support when they were still together as a couple.  He was speaking to the Child Support officer [name] for a while and then [Ms B].  Eventually [Ms B] told him that he needed to lodge an objection and that is when he did so.  Prior to that he was unaware of the procedure for objecting to a decision.

4. As noted above, the original decision of 7 September 2023 was sent in Mr Faulkner’s name to [mailbox].  Mr Faulkner’s evidence was that this was a post office box that he and [Ms A] had shared and the Tribunal accepts that this was the case.  In considering whether [mailbox] was Mr Faulkner’s address for service of decisions, it was not an address notified by him as his address for service, therefore Regulation 34(1) does not apply.  The Registrar’s records did however contain an address attributed to the person and this was the address that [Ms A] had provided as the postal address of Mr Faulkner.  This means that Regulation 34(2) must apply.

5. Regulation 31(2) then provides that service of a notice will be 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 unless the contrary is proved.  Mr Faulkner’s evidence is that [Ms A] continued to access [mailbox] after they separated and that he had never received the notice of decision dated 7 September 2023.  Mr Faulkner has provided a number of photos of letters issued from Child Support at pages 94 to 96 of the hearing papers.  The earliest of these is dated 16 September 2023 and has been redirected from [mailbox].  The Tribunal accepts that Mr Faulkner never received the letter sent to [mailbox] dated 12 August 2023 asking him to contact Child Support.  The Tribunal is also satisfied and consequently finds that Mr Faulkner did not receive the notice dated 7 September 2023 advising him that the child support application had been approved.

6. As the contrary has been proved, service of this notice on Mr Faulkner has not been effected. This means that the objection lodged by Mr Faulkner on 27 November 2023 was not made more than 28 days after service of the relevant notice and section 81 of the Act is met. It is not necessary to grant Mr Faulkner an extension of time in which to object.

DECISION

The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the direction that Mr Faulkner is within the time limit in which to object to the decision of 7 September 2023.