Guinness and Child Support Registrar (Child support)
[2025] ARTA 2277
•21 August 2025
Guinness and Child Support Registrar (Child support) [2025] ARTA 2277 (21 August 2025)
Applicant: Mr Guinness
Respondent: Child Support Registrar
Tribunal Numbers: 2025/MC029506; 2025/MC029551; 2025/MC029552 & 2025/MC029639
Tribunal: General Member M King
Place:Brisbane
Date:21 August 2025
Decision:The Tribunal affirms the decisions under review.
CATCHWORDS
CHILD SUPPORT – extension of time to object – financial support – adjusted taxable income – default and actual incomes – business through company structure – mental health, business litigation and late lodgement of income tax returns – no compelling reason for delay – substantive objections likely to have little merit – public interest – 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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.
Statement of Reasons
BACKGROUND
Mr Guinness is a party to a child support case registered with Services Australia – Child Support (Child Support) in relation to financial support to be provided for [Child 1] (born 2009) and [Child 2] (born 2012).
On 31 October 2011, Child Support decided to use an adjusted taxable income (ATI) of $41,187 for Mr Guinness (a default income for 2010/11) in the administrative assessment for the child support period commencing 1 December 2011.
On 18 August 2014, Child Support decided to use an ATI of $47,046 for Mr Guinness (a default income for 2013/14) in the administrative assessment for the child support period commencing 1 October 2014.
On 6 May 2015, Mr Guinness advised Child Support that his 2013/14 ATI was $4,126. Child Support decided to use an ATI of $4,126 for Mr Guinness in the administrative assessment from 6 May 2015.
On 18 February 2017, Child Support decided to use an ATI of $48,308 for Mr Guinness (a default income for 2015/16) in the administrative assessment for the child support period commencing 1 April 2017.
On 19 May 2018, Child Support decided to use an ATI of $49,071 for Mr Guinness (a default income for 2017/18) in the administrative assessment for the child support period commencing 1 July 2018.
On 16 January 2019, Mr Guinness advised Child Support that his 2017/18 ATI was $25,000. Child Support decided to use an ATI of $25,000 for Mr Guinness in the administrative assessment from 16 January 2019.
On 31 October 2019, Child Support was advised that Mr Guinness’s actual 2013/14 ATI was $4,125. Child Support decided not to change the income being used in the administrative assessment for Mr Guinness from 1 October 2014.
On 31 October 2019, Child Support was advised that Mr Guinness’s actual 2015/16 ATI was $0. Child Support decided not to change the income being used in the administrative assessment for Mr Guinness from 1 April 2017.
On 31 October 2019, Child Support was advised that Mr Guinness’s actual 2017/18 ATI was $0. Child Support decided not to change the income being used in the administrative assessment for Mr Guinness from 1 July 2018.
On 29 November 2021, Child Support was advised that Mr Guinness’s actual 2010/11 ATI was $18,521. Child Support decided not to change the income being used in the administrative assessment for Mr Guinness from 1 December 2011.
On 29 November 2024, Mr Guinness objected to the decisions made on 31 October 2019 and 29 November 2021.
On 19 February 2025, a Child Support objections officer made decisions refusing to grant Mr Guinness extensions of time in which to object to the decisions made on 31 October 2019.
On 15 March 2025, Mr Guinness lodged an application with the Tribunal seeking an independent review of Child Support’s refusal decisions made on 19 February 2025.
On 26 March 2025, a Child Support objections officer made a decision refusing to grant Mr Guinness an extension of time in which to object to the decision made on 29 November 2021.
On 7 April 2025, Mr Guinness lodged an application with the Tribunal seeking an independent review of Child Support’s refusal decision made on 26 March 2025.
The hearing of the applications before the Tribunal was held on 8 August 2025. Mr Guinness attended the hearing by video conference and gave sworn evidence. The Tribunal deferred making a decision to allow Mr Guinness to provide further evidence and submissions to the Tribunal.
In considering the application, the Tribunal took into account the oral evidence and submissions of Mr Guinness at the hearing, the documentary material provided by Child Support to the Tribunal prior to the hearing (the hearing papers) and additional evidence provided by Mr Guinness (marked A1 to A76).
CONSIDERATION
The legislation relevant to this application is contained in the Child Support (Registration and Collection) Act 1988 (the Registration Act) and the Child Support (Assessment) Act 1989 (the Act).
A parent may object to a decision made by Child Support pursuant to section 80 of the Registration Act. Section 81 of the Registration Act provides that an objection must be lodged within 28 days after notice of the decision is served on the person.
Child Support sent Mr Guinness letters dated 31 October 2019 and 29 November 2021 notifying him of the decisions not to change the income being used in the administrative assessment for Mr Guinness. He did not lodge his objections to those decisions within the relevant 28-day period.
Section 82 of the Registration Act relevantly provides that a person may apply for an extension of time in which to lodge an objection. The Registration Act does not set out criteria for consideration in deciding whether to grant an extension of time.
The established cases indicate that the starting position is the prima facie rule that proceedings commenced outside a statutory period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at [416]). However, the primary concern “is to do that which will enable justice to be done between the parties” (see Martinsen v Secretary, Department of Family & Community Services [2004] FCA 297 per Spender J). Spender J quoted McHugh J in Gallo v Dawson (1990) 64 ALJR 459 as follows:
In order to determine whether the rules [imposing time limits] will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time ...
When the application is for an extension of time …it is always necessary to consider the prospects of the applicant succeeding in the appeal …
In line with Wilcox J’s survey of cases in Hunter Valley Developments P/L v Cohen (1984) 3 FCR 344, the Tribunal proposes to consider the matters identified in Gallo v Dawson under the following heads:
·the explanation for the delay;
·the merits of the substantial application;
·any prejudice to the other party including any prejudice in defending the proceedings occasioned by the delay; and
·any public interest considerations that might flow from a successful application including “the unsettling of other people … or of established practices”.
Explanation for the delay
Mr Guinness told the Tribunal he did not understand the child support system. He believes he was given information by Child Support which misguided him. He said he has tried to resolve the arrears he owes commercially, by engaging a lawyer, but that was unsuccessful.
Mr Guinness said, from 2011 to 2014, he was going through a rough time. His life had been turned upside down after the separation from his wife. He was not in a good headspace.
He said, from 2011 until about 2016, he was suffering mental health conditions. He admitted himself to hospital after he had a breakdown. He could not see his daughter for a couple of years.
At page A75 is a copy of a letter, dated 13 August 2025, from [Dr A]. [Dr A] states that Mr Guinness has been his patient for nearly 7 years. He is suffering from anxiety disorder and has a history of psychotic disorder as well.
At page A69 is a copy of part of a Family Report prepared in 2014. In the report it is stated that [Dr B], a psychiatrist, said he started treating Mr Guinness in May 2011, following an admission to the [Adult Acute Psychiatry unit] in March 2011. [Dr B] advised that Mr Guinness has had multiple admissions, with the last being in June 2013.
Mr Guinness said he started his business in 2015. He said, in 2016, he was involved in litigation regarding his business, about a trademark infringement. His business could have gone bust. He said, at that time, his head was all over the place.
He had prepaid mobile phones. He would call Child Support, but his phone number kept changing. Child Support does not have his personal phone number. They only have his office phone number.
He said Child Support sent letters to a Post Office (PO) Box but he did not receive mail from the PO Box to which the 2011 letter was sent by Child Support.
He said the address to which the 2014 letter was sent by Child Support was his brother’s address, which he was using. However, his brother moved from that address.
Mr Guinness said he was aware a child support case had commenced. However, he was not aware of the assessments, and the incomes being used for him, as he did not receive the letters from Child Support.
The Tribunal noted that Mr Guinness did not make any payments to Child Support between August 2015 and February 2019.
Mr Guinness said Child Support contacted his business office in 2019, to advise him to lodge his income tax returns as soon as possible as default incomes were being used for him in the administrative assessments. He said he then rang his accountant. He said he acted in good faith and lodged income tax returns for about 8 years.
Mr Guinness said not lodging his income tax returns on time was not intended to hide anything.
He said he thinks he was in receipt of Centrelink benefits before he started his business, so Child Support should have had access to his income details at that time.
The Tribunal accepts that Mr Guinness may not have received, or at least read, the letters sent to him by Child Support on 31 October 2019 and 29 November 2021. However, that was significantly contributed to by Mr Guinness not providing Child Support with a phone number or mailing address via which he could be readily contacted.
The Tribunal accepts that Mr Guinness suffered significant mental health conditions from 2011 until at least 2014.
However, given the very lengthy delay in objecting, the Tribunal is not satisfied that Mr Guinness has a compelling reason for the delay in objecting to the relevant decisions. The Tribunal is not satisfied that he lodged his objections as soon as he was able to.
Merits of the objection
Section 58 of the Act provides that, if Child Support cannot ascertain a person’s ATI, it can determine an income to be used in the administrative assessment. If no information is available as to the person’s recent incomes, the amount determined must at least be two-thirds of the annualised Male Total Average Weekly Earnings (MTAWE) figure. This is what Child Support applied for Mr Guinness in the relevant administrative assessments commencing from 1 December 2011, 1 October 2014, 1 April 2017 and 1 July 2018.
Section 58A of the Act provides that, if Child Support subsequently ascertains the person’s income and the amount ascertained is less than the default income used:
Retrospective determinations
(2) If:
(a) at the time the Registrar is to amend the administrative assessment under this section, the parent could lodge his or her tax return by the date required under Part IV of the Income Tax Assessment Act 1936 (taking into account any deferral under section 388-55 in Schedule 1 to the Taxation Administration Act 1953 ); or
(b) paragraph (a) of this subsection does not apply and:
(i) the amount subsequently ascertained, as mentioned in subparagraph (1)(b)(i), is higher than the amount that was determined under section 58; or
(ii) the later amount that the Registrar determines, as mentioned in subparagraph (1)(b)(ii), is higher than the earlier amount determined under section 58; or
(c) neither paragraph (a) nor (b) applies, but circumstances prescribed by the regulations for the purposes of this section apply in relation to the parent;
then the Registrar must immediately amend the administrative assessment for the child support period on the basis that the parent's adjusted taxable income for that year of income is, and has always been, the amount that was subsequently ascertained or later determined (as the case requires).
Prospective determinations
(3) If subsection (2) does not apply, then the Registrar must immediately amend the administrative assessment for the child support period on the basis that for each later day in the period the parent's adjusted taxable income for that year of income is the amount that was subsequently ascertained or later determined (as the case requires).
No taxation assessment required
(4) This section applies whether or not the Commissioner of Taxation has made an assessment under an Income Tax Assessment Act of the parent's taxable income for that year of income.
Regulation 11 of the Child Support (Assessment) Regulations 2018 (the Regulations) provides:
Adjusted taxable income--prescribed circumstances
(1) For the purposes of section 58A of the Act, the following circumstances are prescribed in relation to a parent who was unable to provide information about the parent's adjusted taxable income to the Registrar at the time the relevant administrative assessment was made:
(a) one or more of the following applied in relation to the parent at that time:
(i) the parent did not know that an application for the assessment had been made and accepted;
(ii) the parent had a serious illness or injury;
(iii) the parent was under detention or imprisonment;
(iv) the parent resided in a remote location which made it difficult to contact the Registrar;
(v) a natural disaster prevented the parent from being able to contact the Registrar;
(vi) there was some other exceptional circumstance that prevented the parent from providing the information;
(b) the Registrar confirms that the parent was unable to provide the information at that time because of a circumstance mentioned in paragraph (a);
(c) the parent later provides the information to the Registrar as soon as is practicable in the circumstances.
(2) For the purposes of section 58A of the Act, the following circumstances are prescribed in relation to a parent who resided overseas during the last relevant year of income for the child support period for which the Registrar made the relevant administrative assessment:
(a) the parent was not required to lodge a tax return under the Tax Act;
(b) the parent provides the information about the parent's adjusted taxable income to the Registrar within a reasonable time in the circumstances.
In this matter, Mr Guinness did not lodge the relevant income tax returns within the timeframe provided by the Income Tax Assessment Act 1936. Therefore, as Mr Guinness’s actual ATIs were lower than the ATIs being used for him in the administrative assessment, his actual ATIs can only be used retrospectively if one of the circumstances prescribed in regulation 11 of the Regulations applies.
The Tribunal is satisfied that Mr Guinness suffered significant mental health conditions from 2011 until at least 2014, during which time he was hospitalised on several occasions.
However, given the significant delay before Mr Guinness lodged the relevant income tax returns, the Tribunal concludes his substantive objections likely have little merit, although they cannot be said to have no possible merit.
Potential prejudice to the other parent
If extensions of time were granted, and subsequently Mr Guinness’s objections were allowed, that would result in a reduction to the administrative assessment for the relevant periods.
In the usual course, if the other parent believed the amended assessments were unfair, they could make a change of assessment of application to have their concerns considered. That would be a common course of action, where a parent operates a business through a company structure, as Mr Guinness does, and records a low ATI.
That option would not now be available to the other parent, as the assessment can only be varied by Child Support for a period up to 18 months prior to a change of assessment application.
In relation to the other parent’s inability to apply for a change of assessment for the relevant periods, Mr Guinness said he is a director of his company, which operates in the [work sector]. He said his accountant prepares all of his income tax returns. He said his income was quite low when he was starting the business.
Mr Guinness said he is not trying to avoid paying child support.
In making a change of assessment decision, a decision maker has to consider, relevantly, the income, property and financial resources of a parent, and not just the parent’s ATI. Therefore, even if a parent has prepared their income tax returns in compliance with taxation laws, a decision maker may decide it is fair to use a different income in the administrative assessment for child support purposes.
The Tribunal is satisfied that the other parent may suffer significant prejudice if extensions of time were granted.
Public interest considerations
Parliament has seen fit to set a 28-day time limit for the lodgement of objections so parents (and Child Support) can act with certainty as to the outcome when the objection period has elapsed. The public has an interest in reviews of decisions made by Child Support being performed in a timely fashion and in a manner that ensures all applicants are treated fairly and equally. Accordingly, an extension of the time for objection is not to be automatically granted.
The Tribunal has found Mr Guinness does not have compelling reasons for the lengthy delay in lodging his objections. Mr Guinness’s substantive objections likely have little merit. The other parent may also suffer significant prejudice if extensions of time were granted.
The Tribunal concludes that the interests of justice are best served by refusing to grant extensions of time.
DECISION
The Tribunal affirms the decisions under review.
| Date(s) of hearing: | Friday, 8 August 2025 |
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