Hutchins and Sainsbury (Child support)

[2018] AATA 2412

Hutchins and Sainsbury (Child support) [2018] AATA 2412 (12 May 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/BC013387

APPLICANT:  Mr Hutchins

OTHER PARTIES:  Child Support Registrar

Ms Sainsbury

TRIBUNAL:Deputy President J Walsh

DECISION DATE:  12 May 2018

CATCHWORDS
Child support - Collection of registrable maintenance liability - No reasonable prospect of success - Application for review dismissed

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. In this matter, Mr Hutchins seeks review of an objection decision dated 12 January 2018 disallowing his objection to a decision dated 19 November 2009 to register the child support case as “private collect”.  

2. I convened directions hearings on 1 March and 17 April 2018 in order to better understand Mr Hutchins’s case. His position, set out in written submissions provided on 16 March 2018, is that he raised a series of matters in his objection and the CSA had only dealt in terms with a single aspect (the private collect issue). He sought to have the Tribunal address all matters.

3. It is useful to consider the background briefly. Prior to 2009, Mr Hutchins had been assessed as liable to pay child support in respect of the parents’ children. The CSA had registered the case as “CSA collect”. This meant Mr Hutchins was required to pay his child support liability to the CSA which would then transfer payments to Ms Sainsbury. In November 2009, the CSA determined that Mr Hutchins had the care of both the parents’ children so that Mr Hutchins became entitled to receive child support from 12 October 2009.

4. Prior to changes to the child support scheme in 2008, where care of children changed such that the liable parent subsequently became potentially entitled to child support, that parent had to apply for a child support assessment. If they wished to have the CSA collect the liability, they also had to make application to the CSA in this respect.

5. However, after the 2008 scheme changes, a change in care which reversed the roles of the parents (from payer to payee and vice versa) no longer required the payee parent to make their own separate application for a child support assessment. Provided a child support assessment existed when care changed, once the CSA was notified and made a decision to reflect the changed care position, the parent who had previously been the payer would automatically become the payee in the child support assessment.

6. This is what occurred here. Once the CSA decided in November 2009 that Mr Hutchins had the care of the children, Ms Sainsbury was assessed as liable to pay child support and Mr Hutchins was assessed as entitled to be paid child support.

7. As noted above, when Mr Hutchins was liable to pay child support, Ms Sainsbury had asked the CSA to collect payments on her behalf. There was no provision in the Child Support (Registration and Collection) Act 1988 which carried her choice for the case to be CSA collect through once Mr Hutchins became entitled to receive child support. If Mr Hutchins wanted the CSA to collect child support payments from Ms Sainsbury, he had to take a positive step and make such an application under section 25 of the Child Support (Registration and Collection) Act 1988.   

8. By notice dated 19 November 2009, the CSA advised Mr Hutchins that Ms Sainsbury had been requested to make the assessed payments directly to him. I consider this was sufficient notice that the CSA was treating the case as a private collect matter.

9. The material before the Tribunal shows that the CSA subsequently contacted Mr Hutchins on 29 January 2010 and 3 February 2010 where the prospect of Mr Hutchins seeking to have the CSA collect Ms Sainsbury’s liability was raised. However, Mr Hutchins did not make an application for CSA collection. It followed the case remained private collect until Mr Hutchins again became the liable parent with effect from 23 August 2012.

10.  In August 2017, Mr Hutchins raised a number of complaints (including the CSA having treated the child support case as private collect from 12 October 2009) by way of correspondence he sent to the office of Senator [A]. It seems this material was transmitted to the CSA which responded in due course. By email dated 4 September 2017 to a Mr [B], Senator [A]’s Electorate Officer, Mr Hutchins set out his response and concerns in relation to the CSA’s response. Ultimately, by letter dated 25 September 2017 headed “Objection”, Mr Hutchins advised the CSA that he considered its answers to requests for information to have been “totally inadequate”. He objected to the CSA’s failure to provide the information sought which he considered he had a right to. The requested information included:

Change of Collection

·Who made it private collect

·At what dates was it made private collect

·Why was it made private collect

·Why have the CSA failed to comply with the relevant section of the Acts.

11.  At the most recent directions hearing, I suggested to Mr Hutchins that, in this correspondence, he seemed to be seeking information and objecting to the adequacy of the CSA’s response. Mr Hutchins agreed with those observations. On that view, it seems doubtful that this content constituted an objection to the November 2009 decision to treat the case as private collect from 12 October 2009. In any event, it is clear the CSA did treat the matter as an objection by Mr Hutchins to that decision.

12.  Ordinarily, a person dissatisfied with a CSA decision has to object in writing within 28 days of being served with notice of the decision. Plainly, an objection from Mr Hutchins (or taken to be so) received by the CSA on 2 October 2017 was made more than 28 days after the November 2009 notification. However, the CSA records show that this correspondence may have not been received (it may have been returned). It then seems to have proceeded as though Mr Hutchins was not given notice of the private collect decision so that the 28 day timeframe did not apply. Provided the November 2009 notice was in fact sent by pre-paid post to the address last known to the CSA, regulation 14 of the Child Support (Registration and Collection) Regulations 1988 would have applied to deem service. This is so whether or not Mr Hutchins actually received notice (unless he could prove non-delivery).

13.  It will be clear that I have considerable doubt about whether Mr Hutchins in fact objected to the November 2009 private collect decision and whether he needed the grant of an extension of time within which to object in the circumstances. Despite these reservations, it is clear that it is the fact of the making of an objection decision (and not its legal effectiveness) which gives the Tribunal jurisdiction. However, it is only the private collect issue that has been dealt with in the objection decision here; the Tribunal has no jurisdiction to consider any other matters Mr Hutchins seeks to agitate in the circumstances.

14.  As to the resolution of the private collect issue, there is no evidence that Mr Hutchins ever took a positive step in applying to the CSA for it to collect the child support liability on his behalf. It was open to the CSA to treat the case as private collect from October 2009 to August 2012, in the absence of an application for CSA collection by Mr Hutchins. That he did not avail himself of that option when contacted by the CSA in January and February 2010 is a matter for him.

15.  In all the circumstances, I am not persuaded Mr Hutchins has any arguable case. Whilst it is trite to observe that the Tribunal ought be slow to dismiss an application on the basis of having no reasonable prospect of success, I consider this matter to be an appropriate candidate for such means of disposition.

16. Accordingly, I dismiss Mr Hutchins’s application under subsection 42B(1) of the Administrative Appeals Tribunal Act 1975.