Loates and Child Support Registrar (Child support) - [2024] ARTA 424

Loates and Child Support Registrar (Child support) [2024] ARTA 424 (19 December 2024)

Applicant/s: Ms Loates

Respondent: Child Support Registrar

Tribunal Number: 2024/BC028548
Tribunal: Senior Member A Suthers
Place:Sydney
Date:19 December 2024
Decision:The Tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – refusal to grant an extension of time to object – income distribution – income reconciliation – no arguable merit – 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

SUMMARY

Ms Loates is the mother of [Child 1], who turned 18 on 1 June 2023. Prior to that terminating event, there was an administrative assessment of child support in force in relation to [Child 1]. That assessment was registered with Services Australia – Child Support (Child Support).
For the 2022/2023 financial year Ms Loates had estimated her income as $61,424. That figure was used in the child support assessment.
When Ms Loates lodged her tax return for that financial year, it disclosed an adjusted taxable income (ATI) of $243,283. That was partly due to Ms Loates’ income from personal exertion exceeding what she had estimated but was predominantly due to her receiving an income distribution of $165,884 from her current partner, upon the sale of shares. Ms Loates did not anticipate the income distribution.
Upon receipt of that tax return, Child Support reconciled Ms Loates’ income and reassessed the child support payable for the relevant period.
Ms Loates was notified of that reassessment by electronic notification dated 24 November 2023. She did not, however, become aware of that electronic notification until 21 January 2024. That was outside the 28 day period allowable for her to lodge an objection to the decision. After some communication with Child Support, Ms Loates lodged an objection, out of time, on 15 April 2024.
By a decision dated 4 September 2024, Child Support declined to grant an extension of time for Ms Loates to object to the decision. Ms Loates then lodged her application for review in the Administrative Appeals Tribunal (the AAT), within the time provided. It is Child Support’s decision to refuse an extension of time which I am to review. Whilst Child Support is a party to the proceedings before me, the Registrar did not appear or make representations.
There were two apparent pathways for Ms Loates to challenge the effect of the income reconciliation decision. The first was to object to the reconciliation on the basis that it was wrong. The second was to lodge a departure application based on special circumstances, which in this case was the unexpected receipt of non-recurring income not derived from personal exertion.
Ms Loates took the first pathway, as is apparent from her ticking a box on the objection application to indicate that she ‘object[ed] to the child support decision…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] ARTA 424
Decision Date: 19 December 2024

CaseChat Overview and Summary

In the case of Ms Loates and the Child Support Registrar, the primary issue was whether the Tribunal should grant an extension of time for Ms Loates to object to the Registrar’s decision to refuse her application for an extension of time to object to a decision regarding income reconciliation. Ms Loates, the mother of a child who turned 18 on 1 June 2023, had estimated her income for the 2022/2023 financial year at $61,424. However, her tax return revealed an adjusted taxable income of $243,283, largely due to an unexpected income distribution of $165,884 from her partner. Upon reconciling Ms Loates’ income, Child Support reassessed the child support payable for the relevant period. Ms Loates became aware of the reassessment on 21 January 2024, outside the 28-day period for lodging an objection, and subsequently lodged her objection on 15 April 2024. Child Support declined to grant an extension of time for Ms Loates to object to the decision, a decision which Ms Loates sought to have reviewed.

The legal issues before the court involved the statutory framework governing objections to child support decisions, particularly under the Child Support (Registration and Collection) Act 1988. The court had to consider whether to grant an extension of time under section 83 of the Act, taking into account the objectives of the statutory scheme and the reasons for the delay in lodging the objection. The court also needed to determine if Ms Loates' objection to the income reconciliation was arguable, as an extension would be futile if the objection was bound to fail.

The court found that Ms Loates did not dispute the accuracy of the income reconciliation, and there was no suggestion that the reconciliation had been carried out in error. The court noted that Ms Loates could have made an amended tax return or lodged a departure application if there had been grounds to do so. The court held that granting an extension of time would be futile as Ms Loates' objection was bound to fail, and thus affirmed the decision of Child Support to refuse an extension of time. The court reasoned that it would be improper to grant an extension for an objection that had no arguable merit.

The Tribunal, having reviewed all the evidence, affirmed the decision under review. The decision was made on the basis that extending time for Ms Loates to object would be futile as her objection was bound to fail. The Tribunal found that there was no basis to grant an extension of time for an objection that had no arguable merit. Consequently, the decision of the Child Support Registrar to refuse an extension of time was upheld.

Orders