Hobbs and Hobbs (Child support)

[2018] AATA 950

Hobbs and Hobbs (Child support) [2018] AATA 950 (3 March 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/MC013321

APPLICANT:  Mr Hobbs

OTHER PARTIES:  Child Support Registrar

Mrs Hobbs

TRIBUNAL:Deputy President J Walsh

DECISION DATE:  3 March 2018

CATCHWORDS

Child support – Non-agency payment – Mutual intent - No reasonable prospect of success – Application for review dismissed under paragraph 42B(1)(b)

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.

DISMISSAL OF APPLICATION FOR REVIEW:

1. On 16 September 2017, Mr Hobbs notified the CSA of various children’s items he had paid for and sought to have a total of more than $900 credited against his child support liability. In due course, Mrs Hobbs was contacted about these expenses. She agreed it was intended that all items, bar one, were intended to count as child support. The exception was the $58.68 cost of an inkjet printer cartridge.

2. Subsequently, Mr Hobbs was notified that $58.68 of his total claim would not be credited. He objected, relying on previous court orders. His objection was disallowed and Mr Hobbs then sought AAT review.

3. I convened a directions hearing on 26 February 2018. Mrs Hobbs could not be contacted (perhaps because of the small amount in dispute). I discussed the matter with Mr Hobbs who explained he relied on the court orders and prior CSA decisions to accept similar claims.

4. I pointed out to Mr Hobbs that the orders he referred to were in fact notations to consent orders in 2012. Such notations were of no binding legal effect. Mr Hobbs considered the intent of the relevant notation was clear and supported his position. I suggested to Mr Hobbs that it was open to Mrs Hobbs to change her mind, despite the notation, and offered to give him time to provide any further written submission he may wish to have considered. He declined my offer.   

5. Section 71A of the Child Support (Registration and Collection) Act 1988 makes provision for payments to third parties to be credited in lieu of child support, provided certain requirements are met. The critical issue here concerns paragraph 71A(1)(c) which requires that both parents intended that the subject payment be paid in lieu of child support.

6. Whilst it is clear Mr Hobbs intended the cost of the inkjet printer cartridge should count towards his child support liability, there is no evidence upon which the Tribunal could find Mrs Hobbs had this intent. Whatever may have been in her mind when the orders were made in 2012, the critical question under section 71A is her intent at the time of this particular payment in August 2017. And the only available evidence is her denial of agreement as to this expense being intended to be in lieu of child support. In these circumstances, I consider it is not open to the Tribunal, on the available evidence, to positively find she had the intent required by section 71A of the Collection Act.

Conclusion

1. Amendments to the AAT Act made by the Tribunals Amalgamation Act 2015 broadened the scope of the Tribunal’s dismissal powers. Subsection 42B(1) relevantly provides:

   (1) The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:

   (a) is frivolous, vexatious, misconceived or lacking in substance; or

   (b) has no reasonable prospect of success; or

   (c) is otherwise an abuse of the process of the Tribunal.

The Revised Explanatory Memorandum to the Tribunals Amalgamation Bill 2014 explained that these powers “would provide the Tribunal with greater power to dismiss unmeritorious matters early where appropriate.”

1. The Tribunal’s statutory objective is, inter alia, to provide a mechanism of review that is fair, just, economical, informal and quick: see section 2A of the AAT Act.

2. It is trite to observe that the power to dismiss an application on the basis it has no reasonable prospect of success ought be sparingly invoked. In this case, after careful consideration, I have come to the view that Mr Hobbs’ application has no prospects of success. In the circumstances, and guided by the Tribunal’s statutory objective under section 2A of the AAT Act, I have decided that it is appropriate to exercise the power available under paragraph 42B(1)(b) of the AAT Act. Permitting proceedings that simply cannot succeed to continue would be inconsistent with notions of justice, fairness, economy and proportionality that the Tribunal must take into account. Accordingly, I dismiss Mr Hobbs’ application.