Lonargon and Child Support Registrar (Child support)
[2025] ARTA 513
•20 March 2025
Lonargon and Child Support Registrar (Child support) [2025] ARTA 513 (20 March 2025)
Applicant/s: Mr Lonargon
Respondent: Child Support Registrar
Tribunal Number: 2024/MC028948
Tribunal:General Member J Moir
Place: Sydney
Date:20 March 2025
Decision:The Tribunal affirms the decision under review.
CATCHWORDS
CHILD SUPPORT – application for extension of time – regular contact to express concerns – special circumstances – delay in obtaining an amended tax assessment – potential merit to the arguments – significant prejudice to the other parent – 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
This review concerns a decision made by Services Australia (Child Support) on 5 November 2024 to refuse Mr Lonargon an extension of time to object to a decision made on 9 May 2022. Mr Lonargon was the paying parent in a child support assessment (the assessment) for his daughter [Child 1], which ended when she turned 18 in September 2023.
Based on Child Support records, on 30 June 2020, Mr Lonargon’s 2017/18 adjusted taxable income (ATI) of $218,651 was retrospectively applied to the assessment for the period 1 November 2018 to 5 May 2020. Prior to this, the assessment for that period was based on various provisional income amounts of around $160,000. As a result of this decision, Mr Lonargon’s child support liability for the period increased, adding to an existing arrears amount.
In December 2021, Child Support was advised by the Australian Taxation Office (the ATO) of Mr Lonargon’s amended ATI for 2017/18 of $168,608. This was not automatically applied to the assessment. Mr Lonargon raised this issue with Child Support and on 9 May 2022 a decision was made not to apply the amended ATI to the assessment in accordance with the provisions of section 56 of the Child Support (Assessment) Act 1989 (the Assessment Act).
On 8 December 2023 Mr Lonargon lodged a written objection to the decision of 9 May 2022, along with an application to extend the time allowed for an objection to be accepted.
On 5 November 2024, Child Support declined to extend the time period for lodgement of the objection to the decision of 9 May 2022.
Mr Lonargon sought a review of this decision by the Administrative Review Tribunal (the Tribunal) on 3 December 2024.
Mr Lonargon participated in a video hearing on 7 March 2025 and gave oral evidence. Other evidence before the Tribunal was in the hearing papers containing material provided by Child Support (358 pages). Mr Lonargon had submitted audio files of various telephone conversations with Child Support officers, and had asked that these be included in the evidence. The Tribunal did not include these recordings in the evidence, because there was no confirmation that the recordings had been properly obtained and made in accordance with Part 2A of the Telecommunications Act 1979 (Cth).
ISSUES
The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (the Act) and the Assessment Act.
The issue which arises in this case is whether Mr Lonargon should be granted an extension of time to lodge his objection to the decision made by Child Support on 9 May 2022.
CONSIDERATION
10.Subsection 80(1) of the Act provides that a person may lodge an objection in writing in relation to specified decisions made by Child Support. Section 81 of the Act provides that a person must lodge an objection to such a decision within 28 days after a notice of the decision is served on them.
11.Section 82 of the Act provides that beyond the 28 day period, a person may submit an objection along with an application for an extension of time, requesting Child Support to treat the objection as having been duly lodged. The application must state fully and in detail the grounds of the application, including the circumstances concerning, and the reasons for, the failure by the person to lodge the objection within time.
12.Child Support must consider and either grant or refuse the application for an extension of time. If the application is granted, then the person is taken to have lodged the objection (section 83 of the Act). If the application for an extension of time is not granted, a person may apply to this Tribunal for review of a decision on an application for an extension of time (section 89 of the Act).
13.Notice of a decision may be served pursuant to the provisions of child support legislation. This includes sending the notice by prepaid post to that person’s address for service. Unless the contrary is proven, then services by prepaid post are taken to have come into effect at the time when the notice would, in the ordinary course of post, have arrived at the address. Where a person has consented to receiving a notice electronically, then service includes delivery of the notice electronically.
Issue 1
Did Mr Lonargon make his objection outside the 28 day period?
14.Based on the documents provided by Child Support, Mr Lonargon was sent a letter dated 9 May 2022 to the address on his record at the time. The letter advised him of the decision not to apply his amended 2017/18 ATI to the assessment, and informed him of his right to object to this decision, within 28 days. Mr Lonargon told the Tribunal that there was a history of Child Support sending correspondence to the wrong address (the house next door), and also that there were times when he was away in remote areas, and did not receive correspondence in a timely way. However he did not submit that he had not received the letter dated 9 May 2022 in a timely way.
15.Mr Lonargon told the Tribunal that he had contacted Child Support by telephone very soon after receiving the letter. He had not kept his own record of this, and there was no record of this in the papers provided by Child Support. Based on this contact, he said that he did not understand that there was a need for any further action on his part to have this decision reviewed. He was used to Child Support taking a very long time to do anything, and so was not surprised when nothing happened for many months.
16.The Child Support records contain:
A file note of a telephone conversation between Mr Lonargon and a complaints officer dated 26 August 2022, which refers to him having lodged an “online complaint”. There is no copy of the online complaint in the hearing papers, however, the file note records that the officer went through the various issues included in the complaint with Mr Lonargon. This included the following “discussed [Mr Lonargon’s] obj/appeal rights to every decision we make. Advised re: the most recent decision made in May 2022 not to backdate his income, given this is out of the 28 day time frame, he will also need to request for an EOT”. And then later “[Mr Lonargon] has been advised I am unable to change any decisions made ... his option to have any decision reviewed is to lodge an objection or appeal through AAT”.
A file note of a phone call on 5 September 2022 refers to further discussion between Mr Lonargon and the officer about the decision of 9 May 2022, where he expressed his dissatisfaction about the decision on a number of levels. The call ended prematurely.
A letter from Child Support dated 9 September 2022 sets out the response to the complaint lodged on 26 August 2022, which includes reference to the decision of 9 May 2022, and restates the need to lodge an objection in writing within 28 days, and the requirement for an application for extension of time if the application is made outside the 28 days.
A file note of a phone call on 28 August 2023 records that Mr Lonargon had been allocated a “one person point of contact” to assist with his Child Support related concerns after a call with an officer was terminated a few weeks prior. The issue regarding the decision of 9 May 2022 was raised and discussed, along with Mr Lonargon’s many frustrations. The file note states that the officer undertook to “investigate the 2017/18 period to see if there is anything we can do for him by way of backdating the amended income”.
A file note of a phone call on 24 November 2023 records that Mr Lonargon raised the same concerns again about the decision not to apply his amended 2017/18 ATI to the assessment. The file note records “I acknowledged he did send correspondence through last year about this, advised I would need time to peruse the case as to what investigations/decisions were made at this time”. The officer undertook to call him back.
A file note of 8 December 2023 records that the officer explained to Mr Lonargon the history of the decision made on 9 May 2022, based on the Child Support records, and explained that his options were to lodge an objection to the decision of 9 May 2022, with an application for an extension of time, and/or “seek legal advice/apply to the Courts for a CS assessment review”.
vii.Mr Lonargon lodged his objection and an extension of time application immediately after this.
17.Mr Lonargon told the Tribunal that he did not accept that the Child Support documents were accurate and that he believed there were missing records. He gave some examples of file noted calls that were not included in the hearing papers, including a phone call from January 2021 regarding arrangements for paying the arrears amount. However Mr Lonargon had not kept records of his own. The Tribunal noted that there was no copy of the online complaint, apparently lodged in August 2022 in the hearing papers, however was satisfied from the subsequent records that Mr Lonargon was advised on a number of occasions from August 2022 onwards, that he would need to lodge a written objection to the decision of 9 May 2022, and request an extension of time for it to be accepted. There is no evidence that he did so until 8 December 2023.
18.Based on the available evidence, the Tribunal is satisfied that it was not until 8 December 2023 that Mr Lonargon lodged a written objection to the decision of 9 May 2022, and request for an extension of time. This was around 18 months after the decision of 9 May 2022.
Issue 2
19.As the objection was lodged outside the 28 days referred to in section 81 of the Act, the Registrar was required to consider the application for an extension of time, and either grant or refuse the application within 60 days and give written notice of this decision. A failure to make a decision within this timeframe is taken to be a refusal of the application, giving rise to review rights in this Tribunal. In Mr Lonargon’s case, the Registrar did not make a decision within 60 days, but did make a decision on 5 November 2024.
20.The Act does not specify the criteria on which the Registrar (or the Tribunal) should exercise the discretion whether or not to grant an extension of time. A number of decisions provide guidance in determining this issue.
21.In Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 (Hunter Valley Developments), the Federal Court identified principles (at [18-23]) to be considered in relation to applications for extensions of time. In that case the Court was considering an application for an extension of time to apply for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). The principles articulated by the Federal Court were substantially repeated in the case of Re Mulheron and Australian Telecommunications Corporation [1991] AATA 673 (Mulheron) . In the case of Saxena & Child Support Registrar & Anor (SSAT Appeal) [2010] FMCAfam 1416, the Court stated that the Tribunal, "properly proceeded" by considering the factors in Mulheron when reviewing a decision of the Registrar to refuse an extension of time to object to a decision. The factors are a guide, and not a prescriptive list. Section 4.1.5 of the Child Support Guide (the Guide) sets out the factors that the Registrar will consider in determining whether to grant or refuse an application for an extension of time, and these are substantially the same as the principles identified in Hunter Valley Developments.
22.In Hunter Valley Developments, the Federal Court said that in general, applications or proceedings commenced outside of a prescribed time limit will not be considered. Where there is scope to extend this timeframe, the Court said that there must be an acceptable explanation for the delay and that it must be fair and equitable in the circumstances to extend time. The Federal Court identified six factors to take into account when deciding whether to grant an extension of time.
23.At section 4.1.5, the Guide articulates these factors as follows:
reasons for delay
whether the parent rested on their rights, and
the merits of the objection
any prejudice to the other parent
prejudice to the general public
24.The Tribunal is not bound to follow the policy articulated in the Guide, but will do so if it is consistent with the legal principles. On this basis, the Tribunal has taken these factors into account in determining whether the extension of time should be granted in this case.
Reasons for delay and whether Mr Lonargon rested on his rights
25.This set of circumstances has arisen because of two different periods of delay. There is the delay by Mr Lonargon in lodging an objection to the decision of 9 May 2022, which is the decision under review (the second delay). Preceding this, however, is the delay in the provision of the amended ATI for 2017/18, after the original ATI had been applied to the assessment (the first delay). The first delay formed the basis of Child Support’s decision on 9 May 2022 not to apply the amended ATI to the assessment. It is understandable that Mr Lonargon has, to some extent confused these issues.
26.In his application for review Mr Lonargon provides information about his circumstances regarding the first delay, including that he was living in a remote community at the time of the initial decision, which impacted on his ability to arrange for the necessary information to seek an amendment to his 2017/18 tax return. Whilst this information may be relevant to the merits of his objection, it is not an explanation for the delay in lodging the objection to the decision of 9 May 2022.
27.As stated at paragraph 15, at the hearing Mr Lonargon explained the second delay by asserting that he had contacted Child Support by telephone soon after becoming aware of the 9 May 2022 decision, and had raised his concerns. He said that he had not realised that he needed to do anything else to have this issue addressed.
28.This is in conflict with the file evidence set out above that Mr Lonargon raised his concerns about this decision (and other matters) on a number of occasions from 26 August 2022. In response to this, he was advised on a number of occasions that he would need to lodge a written objection and extension of time application if he wanted the decision of 9 May 2022 to be reviewed. Despite this repeated advice, it was well over a year before he made the written objection and extension of time application.
29.The Tribunal accepts the file record as an accurate reflection of the contacts between Mr Lonargon and Child Support about this issue between May 2022 and December 2023. The Child Support records indicate that Mr Lonargon has previously objected to decisions, and has been involved in a number of applications to change the child support assessment. He was, at this time in reasonably regular contact with Child Support about this, and other matters, and is not unfamiliar with their processes.
30.The Tribunal is not satisfied that Mr Lonargon has provided an acceptable explanation for the very significant delay in lodging his objection and extension of time request for the 9 May 2022 decision. Whilst he did not “rest on his rights” in the sense that he made regular contact to express his concerns about this decision and the way it impacted him, he did repeatedly disregard the advice given to him about how to have these concerns dealt with.
The merits of the objection
31.As detailed in the letter of 9 May 2022, the decision to which Mr Lonargon wishes to object was the decision to not apply his amended 2017/18 ATI of $168,608 to the assessment, in place of the original ATI of $218,651. Subsection 56(1) of the Assessment Act provides that, if it is available, a parent’s taxable income will be used for the purposes of assessing the child support liability for a period. The Registrar may amend the child support assessment if an amended tax assessment becomes available (subsection 56(2)). Subsection 56(2A) provides for retrospective determinations. In some circumstances a retrospective determination will occur automatically, as follows:
(2A) An amendment of the administrative assessment under subsection (2) must be on the basis that the parent's adjusted taxable income for that year of income is, and has always been, the amount worked out as a result of the amended tax assessment if:
(a) the parent's adjusted taxable income worked out as a result of the amended tax assessment is higher than the parent's previous adjusted taxable income; or
(b) the parent applied for the amendment of the tax assessment on or before:
(i) the day by which the parent was required to lodge his or her income tax return for that year of income with the Commissioner of Taxation (taking into account any deferral under section 388 - 55 in Schedule 1 to the Taxation Administration Act 1953 ); or
(ii) the end of 28 days after the parent was given the tax assessment (including an amended tax assessment) by the Commissioner of Taxation; or
(iii) the end of 28 days after the parent becomes aware that the tax assessment is not correct if the parent did not apply for the amendment on or before a day referred to in subparagraph (i) or (ii) because of circumstances beyond the knowledge or control of the parent …
32.If none of these circumstances apply, paragraph 56(2A)(c) provides that the Registrar has a discretion to amend the assessment if “satisfied that special circumstances exist”. In the decision of 9 May 2022, Child Support did not consider that any of the circumstances in paragraph 56(2A)(b) were satisfied. Instead they had regard to whether special circumstances existed which provided for the amended tax assessment to be applied, and was satisfied that they did not. In coming to this decision, Child Support had regard to the evidence Mr Lonargon provided, including correspondence from his accountant which explained, to some extent the lengthy delay in obtaining the amended tax assessment.
33.At this hearing, Mr Lonargon told the Tribunal that he did not believe that the correct provision had been applied and he did not think that “special circumstances” were relevant. Instead, he said that subparagraph 56(2A)(b)(iii) should apply in his situation, because circumstances beyond his knowledge or control meant that he did not “become aware” that the tax assessment was not correct until his former employer produced the new payment summary on 24 November 2021. He confirmed that prior to this, whilst he had suspected that there was a mistake on his payment summary, which had led the ATO to make an incorrect assessment of his taxable income, he could not “know” this was the case. Because he had been involved in litigation with his former employer, he was unable to pursue this directly and all communication was through his accountant. He spent several months from June 2020 living and working in remote Aboriginal communities, which made it difficult to communicate and access records. He relied on his accountant to follow up with his former employer.
34.Documents from his accountant showed that they emailed the former employer on 24 November 2021 and asked for a correction to the payment summary, and that this was provided the same day. The amended tax return was submitted the next day and the amended return was provided to Child Support that day. A letter from the accountant states that the 18 month delay between the original tax assessment and the application for the amended tax assessment was due in part to challenges associated with the COVID-19 pandemic, which caused staffing issues at his firm and at the former employer. Mr Lonargon said that it was not within his control to make his accountant take action more quickly than this – even if he had called their office every day, nor was it within his control to make his former employer produce a correct payment summary.
35.On this basis, Mr Lonargon submitted that it was not within his control to obtain the information which confirmed that his original 2017/18 tax assessment was not correct and that he had no option but to rely on others to do this. He sought an amendment to his tax assessment within 28 days of becoming aware that it was not correct. He was in touch with Child Support a number of times during the period, and had advised that he hoped to have the tax return amended.
36.If this argument is not accepted, and the provisions of paragraph 56(2A)(c) are applied, Mr Lonargon’s submission in relation to whether there are special circumstances which warrant the amended tax assessment being applied are essentially the same. Mr Lonargon suspected an error, and took the action within his control to rectify this error. The delay in achieving correction was out of his hands.
37.In DHLD and Executive Director, Social Security Appeals Tribunal [2010] AATA 377, the Tribunal, reviewing a decision of a delegate of the SSAT Principal Member on an extension application, said of the consideration of the merits of the application for review:
…it is not the occasion on which to embark upon a detailed consideration of the evidence and the merits. The question that must be asked is whether the applicant on the extension application has an arguable case. If, at a substantive hearing, that applicant were able to produce evidence to establish the facts he or she put forward on the extension application, would he or she have an arguable case having regard to the facts put forward and the law against which those facts must be considered? (at [53])
38.On this basis, the Tribunal does not need to decide whether subsections 56(2A)(b)(iii) or 56(2A)(c) are satisfied, but simply whether there is potentially some merit to the arguments put forward by Mr Lonargon. The Tribunal considers that Mr Lonargon has an arguable case. However, whether this is sufficient to warrant an extension of time to object to the decision depends on how this is balanced with the other considerations.
Any prejudice to the other parent
39.Section 4.1.5 of the Guide states that the Registrar will consider whether "the outcome of a successful objection would create an overpayment or significant arrears of child support". If Mr Lonargon’s objection was successful and the amended ATI was applied to the assessment, the child support liability for the relevant period in 2018/19 would reduce, which would create an overpayment for the other parent. Mr Lonargon told the Tribunal that the prejudice to her was significantly less than the prejudice to him in having an inflated and incorrect child support assessment for the period. By his estimate it equated to around $10,000, which in his view, would be an “insignificant amount” to her, but would assist him because he lives in financial hardship.
40.The Tribunal notes that the child support case ended in September 2023 when [Child 1] turned 18. Mr Lonargon said that he has no child support arrears. The other parent is not a party to these proceedings, is most likely unaware of these proceedings, and has had no opportunity to participate or put her views. Any consideration of prejudice to her can only be based on speculation. However, it would be difficult to conceive of a situation where a person is not prejudiced by the raising of a debt of around $10,000 (based on Mr Lonargon’s estimate), dating from a period more than five years prior, which was not caused in any way by their own actions, and which they had no opportunity to contest. The Tribunal considers that after 5 years, the other parent is entitled to believe that she received the correct amount of child support for the relevant period. The Tribunal considers that there could be significant prejudice to the other parent if an extension of time were allowed.
Prejudice to the general public
41.This represents two factors identified in Hunter Valley Developments, as “A delay which may result, if the application is successful, in the unsettling of other people or of established practices is likely to prove fatal to the application" (at [21]) and that "Considerations of fairness between the applicants and other persons otherwise in a like position are relevant”.
42.Mr Lonargon submitted that it is in the public interest to hold Child Support to account for errors and poor administration and that it should not be allowed to “get away” with making serious mistakes. There is merit in this as a general principle, however there was no indication from the material before the Tribunal, including Mr Lonargon’s evidence, that the issue under review has arisen because of errors by Child Support. It is very clear from his written material, the file notes in Child Support records, and his evidence at the hearing, that Mr Lonargon holds very strong views about Child Support, and considers that agency has acted deliberately and maliciously towards him over many years. These are not matters within the jurisdiction of the Tribunal, except as they might relate to a particular decision under review. The Tribunal does not accept that allowing the extension of time would support Mr Lonargon’s public interest argument.
43.Conversely, the Tribunal considers that the community expectation is that government administration is conducted in a timely way, with regard to established principles and practices. From this standpoint, to allow an extension of time for close to around 18 months in circumstances where the person repeatedly failed to act on advice regarding the requirements to lodge a valid objection, would clearly “unsettle” established practices and principles, and be unfair to others who are expected to comply with these timeframes.
Conclusion
44. Whilst there may be some merit in Mr Lonargon’s objection to Child Support’s decision not to apply his amended 2017/18 ATI to the assessment, the Tribunal is satisfied that this alone is not sufficient to warrant granting an extension of time. The lack of adequate explanation for his 18 month delay in making a written objection, despite being advised of the need to do so, as well as the likely prejudice to the other parent, and the community as a whole, are matters which, in combination, mean that the discretion to allow an extension of time to object to the decision of 9 May 2022, should not be granted.
DECISION
The decision under review is affirmed.
| Date of hearing: | Friday, 7 March 2025 |
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