Sales and Child Support Registrar (Child support)

[2018] AATA 1721

Sales and Child Support Registrar (Child support) [2018] AATA 1721 (12 April 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/SC013493

APPLICANT:  Mr Sales

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member J Thomson

DATE DECISION MADE:                12 April 2018

APPLICATION:

An application made on 9 February 2018 asking the AAT to review a decision of the Child Support Registrar on 9 January 2018.

DECISION:

The decision under review is set aside and the matter is sent back to the Child Support Registrar for reconsideration in accordance with the direction that Mr Sales’ objection be considered and determined.

CATCHWORDS
Child support – Departure determination - Refusal to grant extension of time to object - The objection was lodged within the required timeframe - Decision under review set aside and remitted for reconsideration with the direction that the objection is considered and determined

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 DECISION

1. The Tribunal heard this matter on 12 April 2018. Mr Sales was represented at hearing by his duly authorised solicitors, [Mr A] and [Ms B], who made written and oral submissions on behalf of Mr Sales to the Tribunal.

2. The Tribunal had before it documentation provided by the Department (Exhibit 1) which included written submissions prepared by Mr Sales’ solicitors (see pages 10 to 31 and 35 to 76 of Exhibit 1).

3. In considering this matter, the Tribunal has had regard to the documentation provided by the Department and Mr Sales’ application for an extension of time together with the written and oral submissions provided by his legal representatives, referred to above.

4. On 8 August 2017, [Ms C] applied to the Department of Human Services – Child Support (the Department) for a change of assessment of child support payable by Mr Sales in respect of the children, [Child 1] (born 2014) and [Child 2](born 2016), relying upon Reasons commonly referred to as Reasons 6 and 8A.

5. Mr Sales cross applied, relying upon Reasons commonly referred to as Reasons 5 and 8A.

6. On 30 October 2017 a Department decision-maker, [found] Reasons 6 and 8A in [Ms C’s]’ application established, but refused Mr Sales’ cross application, and decided that for the period 8 August 2017 to 31 January 2020, Mr Sales’ adjusted taxable income should be set at $336,000, that for the period 8 August 2017 to 31 December 2017, Mr Sales’ child support assessment should be increased by $3,451, and for the period 1 January 2018 to 31 January 2020, his assessment should be increased by $5,095.

7. The legislation relevant to this matter is contained in the Child Support (Registration and Collection) Act 1988 (the Registration Act). Section 81 of the Registration Act provides that an objection must be lodged within 28 days after notice of the decision is served on the person.

8. The Department’s records disclose that it sent a letter dated 20 November 2017 to Mr Sales enclosing a copy of [the decision maker’s] decision of 30 October 2017 (see page 391 of Exhibit 1). He would therefore have had until 29 December 2017 to lodge an objection. It is unclear when, if at all Mr Sales received that letter. There is no evidence of the decision of 30 October 2017 being sent by post or otherwise to Mr Sales on a date earlier than 20 November 2017.

9. On 24 November 2017, Mr Sales’ solicitors contacted the Department to enquire as to whether a decision in respect of [Ms C]’ change of assessment application had been made, and were advised that a decision had been made and a copy of that decision would be posted to Mr Sales’ solicitors (see page 422 of Exhibit 1).

10. Mr Sales’ solicitors state in their submissions that, in response to the telephone conversation referred to in the preceding paragraph, a copy of the Department’s decision of 30 October 2017 was received by them on or about 28 November 2017 (see page 17 of Exhibit 1).

11. On 7 December 2017, Mr Sales’ solicitors had a further telephone conversation with a Department officer, in the course of which the Department officer confirmed that the due date for lodging an objection to [the decision maker’s] decision of 30 October 2017 was 29 December 2017, and provided the solicitors with an email address and other Department particulars to which Mr Sales’ intended objection should be sent (see page 423 of Exhibit 1).

12. On 21 December 2017 at 2:48 PM, Mr Sales’ solicitors sent an email to the Department at the email address it had nominated attaching a completed objection in the prescribed form, signed by Mr Sales, and dated 14 December 2017, including detailed submissions with supporting documentation regarding his grounds of objection (see pages 31 to 76 of Exhibit 1).

13. The Department’s records reveal that it received that email and enclosures at 4:48:30 on Thursday, 21 December 2017 (see page 424 of Exhibit 1)

14. The Tribunal finds that the evidence is that Mr Sales’ objection to the Department’s decision of 30 October 2017, notice of which was purportedly sent to him on 20 November 2017, was lodged on 21 December 2017, within the prescribed time limit, and it was not necessary for him to seek an extension of time.

DECISION

The decision under review is set aside and the matter is sent back to the Child Support Registrar for reconsideration in accordance with the direction that Mr Sales’ objection be considered and determined.