Nugent and Child Support Registrar (Child support)

Nugent and Child Support Registrar (Child support) [2018] AATA 5037 (5 December 2018)

DIVISION:Social Services & Child Support Division
REVIEW NUMBERS:  2018/BC015118, 2018/BC015146 & 2018/BC015147
APPLICANT:  Ms Nugent
OTHER PARTY:  Child Support Registrar
TRIBUNAL:Member P Jensen
DECISION DATE:  5 December 2018
DECISIONS:

The decisions dated 12 September 2018 to refuse Ms Nugent’s applications for extensions of time in which to object to original decisions dated 10 November 2017 and 23 November 2017 are set aside and the matters are remitted to the Child Support Registrar for reconsideration with directions that Ms Nugent objected to those original decisions on 1 December 2017, and she therefore objected within time.

This means that Ms Nugent’s applications to this Tribunal are successful and an objections officer will review the original decisions dated 5 October 2017, 10 November 2017 and 23 November 2017.

CATCHWORDS

CHILD SUPPORT – refusal of extension of time to object – decision to credit non-agency payments - desirable to grant extension of time to enable entirety of underlying issues to be reviewed – decision under review set aside and substituted

CHILD SUPPORT – refusal of extension of time to object – decisions to credit non-agency payments – whether a document lodged by the applicant constituted an objection to the subject decisions – whether an objection could be “withdrawn” – decisions under review substituted and the matters remitted for reconsideration with direction that the objections were lodged within time

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.

REASONS FOR DECISIONS

Ms Nugent and [Mr A] are the parents of [Child 1]. A child support case was registered with the Department of Human Services – Child Support (“the CSA”) from 23 August 2017. [Mr A] was required to pay child support to Ms Nugent.
The payment of child support can be a private matter between the parents. Alternatively, it can be registered for collection by the CSA pursuant to the Child Support (Registration and Collection) Act 1998 (“the Act”). The child support payable then becomes a debt that is owed to the CSA. [Mr A’s] child support payable was registered for collection from 21 September 2018.
In some circumstances, if the paying parent makes a payment to a third party, the CSA can credit the payment against the payer’s child support debt. The payment is referred to as a non-agency payment. Generally, if both parents agree to a payment being credited as a non-agency payment, it can be credited as such pursuant to section 71A of the Act. In some circumstances, if the payment falls within a prescribed category, it can be credited as a non-agency payment even if the payee of child support does not agree to it being credited: section 71C of the Act. Such payments are called prescribed non-agency payments. The prescribed categories include “the payee’s share of amounts payable for the payee’s home”. Departmental policy, which is contained in the Child Support Guide, includes the following example at 5.3.1:
[Mr B], a payer, advises that they are paying months repayments of $500 on a mortgage for the home in which the payee [Ms C] lives. As [Ms C] is named on the mortgage documents as having an equal share in the property, the Registrar agrees to credit the payee’s share of the loan repayments ($250) as prescribed non-agency payments.
Even if the requirements of section 71A or section 71C are satisfied, there is a residual discretion to not credit “an amount” as a non-agency payment if, “in the particular circumstances of the case, the amount ought not to be credited”: section 71D of the Act.
At all relevant times, Ms Nugent was living in the matrimonial home and [Mr A] was paying the associated home loan repayments, which were $270 per week. From time to time, [Mr A] applied to have half those repayments credited as non-agency payments. He also applied to have half of a home insurance payment credited as a non-agency payment. The relevant CSA decisions in respect of those applications can be summarised as follows:
·       on 5 October 2017 the CSA decided to credit two payments of $135.00 (being half of two home loan repayments) and $122.73 (being half of the home insurance payment) as non-agency payments pursuant to section 71A of the Act (“the First Decision”);
·       on 10 November 2017 the CSA decided to credit six payments of $135.00 as non-agency payments pursuant to section 71A of the Act (“the Second Decision”); and
·       on 23 November 2017 the CSA decided to credit two payments of $135.00 as prescribed non-agency payments pursuant to section 71C of the Act (“the Third Decision”).
The CSA promptly notified Ms Nugent in writing of each of the three decisions. She had a right to object to each decision. To object within time, she needed to do so in writing within 28 days of being served with a notice of the decision. She objected to the decisions on 24 August 2018. There is no dispute that, at least in respect to those objections, she did not object within time. She also applied for extensions of time in which to object. On 12 September 2017 the CSA decided to refuse her extension of time applications. She promptly applied to the Tribunal for review of those decisions. I conducted a hearing on 5 December 2018. I spoke to Ms Nugent by conference phone.
The matter has a complicated history. On 5 October 2017 the CSA relevantly noted:
She also confirmed payments of $135 being her share of mortgage made on 21/09/17 and 27/09/2017 can be credited in full after discussing option of Pnap [i.e. prescribed non-agency payment]. Ms Nugent also agreed to credit $122.73 for home insurance made on 29/09/2017 be credited in full rather than Pnaps.
It would appear that Ms Nugent agreed to the payments being credited pursuant to section 71A after being told that if she did not agree, the payments would be credited pursuant to section 71C. It would also appear that Ms Nugent was not informed that if a decision-maker concluded that one or more of the payments satisfied the requirements of section 71A or 71C, the decision-maker would then be required to consider whether “an amount … ought not to be credited”.
On 12 October 2017 the CSA relevantly noted at 1:05pm:
* We discussed family violence and Ms Nugent indicated concerns with proceeding with [a departure application, commonly referred to as a change of assessment, or COA] as they have family violence safety concerns.
* After discussions, Ms Nugent did not wish to continue with the discussion or an application at this time. I provided relevant options and referral information.
On the same day, the CSA relevantly noted at 1:41pm:
Pye Ms Nugent rang; stated she disagrees with NAPs from Pyr [Mr A] being accepted for joint mortgage costs for the house she is living in because her solicitor said the payments should be in lieu of spousal maintenance. Explained she can Object, directed her to form online and the Child Support Guide.
On 10 November 2017 the CSA noted:
Discussed nap lodged by PP [i.e. paying parent] [Mr A] of $270.00 x 6 payments = $1620.00
Payment dates 4/10/2017, 11/10/2017, 18/10/2017, 25/10/2017, 1/11/2017 and 8/11/17
RP [i.e. receiving parent] Ms Nugent confirmed this was correct
I advised that as the PP [Mr A] was paying the full CS payment and the Rp Ms Nugent and child [Child 1] were residing in the property 50% of the mortgage would be accepted in lieu of CS payments
Rp Ms Nugent agreed to accept the Naps of $810.00
This had been accepted
It appears that Ms Nugent was told that the payments in question would be credited as non-agency payments (pursuant to one provision or another), and it was in that context that she agreed to the payments being credited pursuant to section 71A.
On 23 November 2017 the CSA relevantly noted:
RP Ms Nugent advised that she wanted to dispute the mortgage repayments as she believes that the PP should be paying a higher percentage of the mortgage as he has a higher capacity to pay due to his income.
I advised that she has an option of COA to determine his percentage but may be unsuccessful if PP cross applies.
Ordinary Naps have will [sic] be refused and Pnaps accepted [i.e. the CSA made the Third Decision]
As a matter of law, Ms Nugent had the option of lodging a departure application with a view to altering the effect of the non-agency payment decisions. As a matter of practice, it is likely that such a departure application would be refused in the exercise of the decision-maker’s discretion because the appropriate way to challenge a non-agency payment decision is to object to that decision. It is clear from the CSA file note that Ms Nugent was effectively challenging the CSA’s decisions to credit 50% of various payments, rather than exercising its discretion pursuant to section 71D to credit a smaller percentage of those payments.
On 27 November 2017 the CSA relevantly noted:
She advised that we should not have accepted NAP as the full credited [sic] and it should have been 30% as she is facing financial hardship. Advised that it is the half mortgage and if she is living in the house. She said yes. … Advised that she could object to the decision.
On 1 December 2017, Ms Nugent lodged a departure application. Her covering email stated:
Please find attached the ‘Application to change your assessment – Special Circumstances’ for urgent attention regarding the removal of ‘non-agency payments’ from the Child Support Assessment.
She reiterated in her departure application, and again in her written submissions that accompanied her departure application, that she was disputing the crediting of the non‑agency payments.
On 18 December 2017 the CSA relevantly noted:
Ms Nugent maintained she wanted to have the NAP decision removed from the assessment. I informed Ms Nugent that CoA does not have the authority to remove the NAP and that she would need to object to the NAP decision. I informed Ms Nugent that if we were to make a change under the CoA she would be worse off as we may make a larger deduction to the cs paid as [Mr A] is paying home mortgage / insurance (this is the reason for the NAP). … Ms Nugent raised DV matters several times throughout the call. Ms Nugent maintained she is unable to speak any further as she is thinking about other things – Ms Nugent requested call back tomorrow after lunch.
The CSA phoned Ms Nugent the following day and “[s]he eventually confirmed that she would withdraw her application.”
A question arises as to whether the documentation that Ms Nugent lodged on 1 December 2017 constituted a written objection to the First, Second and Third Decisions. A written objection does not have to be in a prescribed form. Notwithstanding the fact that Ms Nugent lodged a document entitled “Application to change your assessment – Special Circumstances”, it is clear from the history of Ms Nugent’s dealing with the CSA and the information she included in her application that she was, in substance, objecting to the First, Second and Third Decisions, and I find accordingly.
A further question arises as to whether, having objected to those decisions, she could subsequently withdraw her objections. Section 80 of the Act lists the types of decisions in respect of which a person may object. The list includes decisions under sections 71A and 71C of the Act. Section 87 of the Act provides that if a person lodges an objection, the Registrar must consider the objection and either disallow the objection or allow it in whole or in part. There is no provision that allows for the withdrawing of an objection. That position can be contrasted with other legislative schemes which do provide for the withdrawal of an application for review: see, for example, section 130 of the Social Security (Administration) Act 1999 and section 42A of the Administrative Appeals Tribunal Act 1975.
In summary, I find that Ms Nugent objected to the First, Second and Third Decisions on 1 December 2017. Having lodged the objections, she was unable to withdraw them. She objected within time to the Second Decision, which was made on 10 November 2017, and the Third Decision, which was made on 23 November 2017. The CSA is required to consider them and make decisions in respect of them. Those matters will be remitted to the CSA to allow that to occur. Ms Nugent’s objection to the First Decision was slightly out of time. However, during the intervening period she was in contact with the CSA and she made it clear that she disagreed with that decision too. While it is not immediately apparent that there is any substantive merit in Ms Nugent’s objections, the fact that the Second and Third Decisions will be reviewed makes it desirable to grant Ms Nugent’s application for an extension of time in which to object to the First Decision, thereby allowing the entirety of the underlying issues to be properly reviewed.

DECISIONS

The decision dated 12 September 2018 to refuse Ms Nugent’s application for an extension of time in which to object to an original decision dated 5 October 2017 is set aside and, in substitution, Ms Nugent’s extension of time application is granted. The decisions dated 12 September 2018 to refuse Ms Nugent’s applications for extensions of time in which to object to original decisions dated 10 November 2017 and 23 November 2017 are set aside and the matters are remitted to the Child Support Registrar for reconsideration with directions that Ms Nugent objected to those original decisions on 1 December 2017, and she therefore objected within time.

This means that Ms Nugent’s applications to this Tribunal are successful and an objections officer will review the original decisions dated 5 October 2017, 10 November 2017 and 23 November 2017.

[2018] AATA 5037

5 December 2018

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Appeal