Freckleton and Child Support Registrar (Child support)

[2021] AATA 2295

Freckleton and Child Support Registrar (Child support) [2021] AATA 2295 (27 May 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC021106

APPLICANT:  Mr Freckleton

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member J Leonard

DECISION DATE:  27 May 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – refusal to grant an extension of time to object – refusal to credit non-agency payments – no reasonable explanation for the delay in lodging the objection late – little prospect of objection succeeding – the extension of time should be refused - decision under review affirmed

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.

REASONS FOR DECISION

BACKGROUND

1. Mr Freckleton and [Ms A] are the parents of one child. At relevant times, Services Australia (Child Support) made assessments of child support for them on behalf of the Child Support Registrar. Mr Freckleton is the parent liable to pay child support.

2. On 9 April 2020 Mr Freckleton informed Child Support that he had made 11 payments totalling $10,090.96 to his daughter or a third party in lieu of child support over the period 21 December 2019 to 9 April 2020. He applied to have these payments credited against his child support liability.

3. On 14 April 2020 Child Support refused to credit any of the payments as there was no mutual intent that they were intended to count as child support.

4. On 12 March 2021, Mr Freckleton applied for an extension of time to make objection to the decision of 14 April 2020. On 18 March 2021, Child Support refused an extension of time for him to object to the original decision of 14 April 2020.

5. On 24 March 2021, Mr Freckleton applied for review of that decision. The Tribunal heard the application for review on 27 May 2021.

ISSUES

1. The Registrar makes child support assessments under the Child Support (Assessment) Act 1989 (the Assessment Act).

2. A person may object to the Registrar about a decision about the particulars of an assessment under section 80 of the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act). Section 81 imposes a time limit for making an objection of 28 days from receipt of notice of the relevant decision. Section 82 also allows a person to ask the Child Support Registrar to consider an objection despite the expiry of the period for making it (extension application).

3. It is settled law that a decision maker should not extend time for a person to start a legal proceeding unless it is proper to do so after having regard to matters outlined in the headings below.[1]

   [1] Hunter Valley Developments Pty Ltd & Ors v Cohen [1984] FCA 186

4. Mr Freckleton has applied for review of the decision to refuse his extension application. To deal with his review, the Tribunal considered whether it was proper to extend the time for him to object.

CONSIDERATION

Evidence considered

1. The Tribunal considered evidence in the documents provided by Child Support to the Tribunal in relation to this review together with Mr Freckleton’s oral evidence.

Is it proper to extend the time for Mr Freckleton to object?

Delay and reasons for delay

1. Child Support notified Mr Freckleton of the original decision of 14 April 2020 and considerable time elapsed before Mr Freckleton objected to that decision.

2. On 10 March 2021 Mr Freckleton rang Child Support and discussed his concerns regarding the recorded care of his daughter and his application for a departure from the administrative assessment. Mr Freckleton expressed his frustration about the refusal to credit the payments paid in 2020. Mr Freckleton spoke to Child Support again on 12 March 2021. He was advised to lodge his objection in writing and to seek an extension of time to object. In a letter dated 12 March 2021 Mr Freckleton stated:

   I object to the fact that the 10,000 dollars that I paid for Child Support payments to [the child] have not be deducted from my child support. The reason that I did not respond with an objection earlier was I was not aware that there is an appeals process. As this was never explained to me and hence I am appealing now with an objection in order to have this injustice rectified.

   Prior to making the payment I called Child support and they agreed to accept it an a non agent payment and all my previous payments we accepted without any issues. Also I discussed it with my ex-wife and she agreed to accept it as well as a non agency payment. I would like to appeal this decision and want the matter to heard in the tribunal if my claim is not granted.

3. The original decision sent to Mr Freckleton stated in part that he could ask for a review of the decision within 28 days from the date he received the letter and directed him to the Human Services website for more information.

4. Mr Freckleton told the Tribunal that he receives a lot of letters from Child Support and does not have time to read them all in detail. To print them off and read them “would be a full-time job”. Mr Freckleton stated that generally Child Support ring him and tell him of the decision and he was not told about his appeal rights to the Administrative Appeals Tribunal. He stated he felt Child Support were “a law unto themselves” and he felt powerless to change their decisions.

5. On 15 June 2020 Child Support made a separate decision to refuse to credit an amount of $5,342.23 against Mr Freckleton’s child support liability. The notes of that conversation state in part:

   Advised Mr Freckleton (PP) to object on the decision by Completing Objecting to a Child Support decision form (CS1893) and also attaching the electronic transfer receipt with that.

   PP has advised that he will complete the form and upload it online.

6. The Tribunal has carefully checked the documents but despite the notification in writing on 14 April 2020 and the conversation with Child Support on 15 June 2020 regarding objection rights, there is no record of Mr Freckleton objecting in writing to the decision of 14 April 2020 until 12 March 2021.

7. The delay is extensive, and the Tribunal considers that despite his stated frustration with Child Support, it was incumbent upon Mr Freckleton to read their decision in full. The Tribunal finds that Mr Freckleton lodged his objection out of time, and the reason for the delay in lodging the objection is not satisfactorily explained.

Merit

1. The payments claimed by Mr Freckleton are:

   ·     21 December 2019 - $9,000 direct payment for [the child]’s expenses

   ·     1 January 2020 - $160.00 direct payment for [the child]’s monthly school lunches

   ·     9 January 2020 - $22.00 third-party payment for [the child]’s monthly phone bill

   ·     1 February 2020 - $160.00 direct payment for [the child]’s monthly school lunches

   ·     9 February 2020 - $22.00 third-party payment for [the child]’s monthly phone bill

   ·     1 March 2020 - $160.00 direct payment for [the child]’s monthly school lunches

   ·     9 March 2020 - $22.00 third-party payment for [the child]’s monthly phone bill

   ·     23 March 2020 - $300.00 third-party payment for [the child]’s driving lessons

   ·     1 April 2020 - $160.00 direct payment for [the child]’s monthly school lunches

   ·     6 April 2020 - $62.96 direct payment to a third party for [the child]’s jeans

   ·     9 April 2020 - $22.00 third-party payment for [the child]’s monthly phone bill

2. [Ms A] had advised Child Support that the payment of $9,000 was transferred to [the child]’s bank account for the purchase of a car. [Ms A] stated that she also contributed $9,000 to the purchase price. [Ms A] stated she did not intend that the payments made towards the cost of [the child]’s car, phone, school lunches or clothes would be accepted in lieu of child support.

3. Mr Freckleton stated the $9,000 was paid to [the child]’s bank account with [Ms A]’s full knowledge of it as a one-off payment to cover [the child]’s discretionary spending. If [the child] chose to use the money towards the purchase of a car that was a matter for her.

4. Previously, he had claimed the cost of the purchase of a laptop as a non-agency payment and was of the understanding that the 11 payments between December 2019 and April 2020 would be credited towards his child support liability. He handed over the money on this basis.

5. Section 71A of the Act states that an amount paid by a payer to a third party can be credited provided there is an enforceable maintenance liability and both parents intend that the payment is in satisfaction of child support payable under that liability.

6. The Tribunal notes [Ms A] has consistently stated there was no mutual intent and it is unlikely her evidence would change on this point. It follows that it is unlikely that the  payments would be credited under section 71A of the Act.

7. Section 71C of the Act provides that even where there is a lack of mutual intent, payments made by a liable parent for items specified in section 19 of the Child Support (Registration and Collection) Regulations 2018 (the Regulations) may be taken into account in partial satisfaction of the liable parent’s child support liability. A number of specific criteria must be satisfied for this provision to apply. Even where all the criteria are met, there is still a discretion in section 71D of the Act to refuse to credit amounts that would otherwise be able to be credited against the liability.

8. The types of payments claimed by Mr Freckleton as set out in paragraph 18 of this decision are not of a kind specified in the Regulations and so section 71C of the Act would not apply. It follows the objection is unlikely to succeed.

[Ms A]’s interests and public policy issues

1. As the objection has little merit, [Ms A]’s interests would not be affected if Child Support considered Mr Freckleton objection. There is no evidence of any prejudice to the wider public if Mr Freckleton was to be granted an extension of time.

Fairness to other persons in a similar position

1. The Tribunal considers that other persons in a similar position would not be placed in an unfair position if the extension were granted. Parents under the child support scheme have the capacity to object to specific decisions and can seek an extension of time to lodge an objection. The outcome will be wholly dependent on the circumstances of the particular case.

Is it proper to grant the extension of time?

1. The Tribunal has found that Mr Freckleton rested on his rights. Additionally, any prospect of success is limited. Those factors weigh towards the Tribunal exercising its discretion not to grant Mr Freckleton an extension of time to object.

2. Overall, the Tribunal concludes it is not proper to grant the extension of time.

DECISION

The decision under review is affirmed.