Turnbull and Child Support Registrar (Child support)

[2019] AATA 4881

Turnbull and Child Support Registrar (Child support) [2019] AATA 4881 (16 August 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC016630

APPLICANT:  Mr Turnbull

OTHER PARTY:  Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  16 August 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – refusal to grant an extension of time to object – no satisfactory explanation for the delay – arguable merit – weighing all factors the extension of time was correctly refused – 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 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. Mr Turnbull and [Ms A] are the parents of [Child]. A child support case was registered with the Department of Human Services – Child Support (“the CSA”) in April 2017.

2. The Child Support (Assessment) Act 1989 (“the Act”) provides for an administrative assessment of child support payable. It uses a formula which contains variables such as the parents’ adjusted taxable incomes and their percentages of care of the child. From 1 August 2017 to 31 October 2018 the administrative assessment was based on Mr Turnbull’s 2016-17 adjusted taxable income of $0, [Ms A]’s 2016-17 adjusted taxable income of $22,355, and each parent’s 50% care of [Child].

3. The Act also provides for a departure from the administrative assessment in certain circumstances. On 8 May 2018, [Ms A] lodged a departure application. On 31 May 2018 an original decision maker granted her application and varied Mr Turnbull’s adjusted taxable income to $56,000 per annum from 8 May 2018 to 31 October 2018 (“the first departure decision”). On the same day the CSA wrote to Mr Turnbull and notified him of that decision. He does not dispute receiving that notice in the ordinary course of the post, and I find accordingly. He had a right to object to that decision. To object within time, he needed to do so within 28 days of being notified of the decision: section 81 of the Child Support (Registration and Collection) Act 1988 (“the Registration Act”).

4. On 10 September 2018, Mr Turnbull objected to the first departure decision. He also applied for an extension of time in which to object (“the first extension of time application”) pursuant to section 82 of the Registration Act. On 18 September 2018 the CSA decided to refuse his first extension of time application. On the same day the CSA wrote to him and notified him of that decision. He had a right to apply for review of that decision by the Tribunal. To apply for review within time, he needed to apply to the Tribunal within 28 days of being notified of the decision.

5. On 20 February 2019, Mr Turnbull applied to the Tribunal for review of the decision to refuse his first extension of time application. He also applied for an extension of time in which to apply for review of the decision to refuse his first extension of time application. On 30 May 2019 this Tribunal, differently constituted, granted that application.

6. On 16 August 2019 I heard Mr Turnbull’s application for review of the decision to refuse his first extension of time application. He participated in the hearing by conference phone. He said he had not received the hearing papers in the matter but he was not opposed to proceeding with the hearing on the day, and that is what occurred.

7. The principles to be applied when deciding an extension of time application were summarised in Phillips v Australian Girls’ Choir and Another [2001] FMCA 109:

1.There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The "prescribed period" of 28 days is not to be ignored …

2.It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained … It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition …

3.…It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. …

4.Any prejudice to the respondent … is a material factor [which goes] against the grant of an extension.

5.The mere absence of prejudice is not enough to justify the grant of an extension. …

6.The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. …

7.Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion …

The merit of Mr Turnbull’s objection

1. The original decision maker’s reasons for varying Mr Turnbull’s adjusted taxable income to $56,000 per annum included the following:

   Attempts to contact Mr Turnbull in regards to the application have been unsuccessful.

   … Mr Turnbull’s employer confirmed he has been employed since 25 March 2017 and remains employed. The response indicated in the period 29 March 2017 to 23 May 2018 (60 weeks) he was paid a gross amount of $48,415.20.

   Department records indicate Mr Turnbull receives [income support payments] from Centrelink and for the period 24 January 2018 to 30 May 2018 (11 fortnights) received $6,321.90 in benefits and has been declaring income from employment …

2. That evidence suggested that Mr Turnbull received income of $56,901 per annum, and the original decision maker concluded that “I will set Mr Turnbull’s income at $56,000 to take into account any allowable deductions he may be able to claim.” As noted earlier, his income was only varied from 8 May 2018 to 31 October 2018.

3. The hearing papers include details of Mr Turnbull’s earnings and his declarations to Centrelink of his earnings, which include the following:

Week            Actual           Actual            Fortnight         Declared         Declared

ending           earnings         hrs worked      ending           earnings          hrs worked

28/02/18         $312.00          13

07/03/18         $801.90          30.5               06/03/18         $280.00          12

14/03/18         $1,227.72       43

21/03/18         $1,089.90       42.5               20/03/18         $380.00          18

28/03/18         $841.86          31

04/04/18         $987.72          33                03/04/18         $380.00          18

11/04/18         $865.86          32

18/04/18         $816.00          34                17/04/18         $360.00          18

25/04/18         $913.86          34                

02/05/18         $672.00          6.5                01/05/18         $360.00          18

1. At the hearing, Mr Turnbull stated that his declared earnings were less than his actual earnings because he had made loan repayments on an unrelated business loan in respect of a business that he no longer operated, and he had deducted those repayments from his actual earnings when declaring his earnings to Centrelink. If that were the case, it would not explain why he under-declared his hours of work.

2. On 27 July 2018, [Ms A] lodged another departure application. She sought a variation to Mr Turnbull’s adjusted taxable income from 1 November 2018. On 8 November 2018 an original decision maker granted her application and varied Mr Turnbull’s adjusted taxable income to $58,000 per annum and [Ms A]’s adjusted taxable income to $40,000 per annum from 1 November 2018 to 31 October 2019 (“the second departure decision”). The original decision maker’s reasons for making that decision included the following:

   A number of unsuccessful attempts were made to contact Mr Turnbull to discuss his response and cross-application in detail. … [Mr Turnbull’s] employer’s accountants advised that Mr Turnbull continues to be employed and is earning a total income at the rate of approximately $47,200 per annum. … I am satisfied on the evidence that Mr Turnbull continues to receive Centrelink benefits … Mr Turnbull also has a business bank account. The business is described as [business]. Statements for this account are available for the period 28 May 2018 to 11 September 2018 and as at the final date, the only deposits into the account have been by way of transfer from Mr Turnbull’s other accounts. … I have examined Mr Turnbull’s 2017-18 income tax return. In that year he recorded total income from employment of $43,495, a lump sum payment of $12,299 and government payments of $7,098 — a total of $62,892. The supplementary section of Mr Turnbull’s income tax return shows a zero income for his business direct selling [product] and a business loss of $42,800. …

   [Ms A] maintained that the [product] business was in her name and operating under her ABN and she does not know how Mr Turnbull was able to claim a tax deduction in relation to the business. … Unfortunately, I have been unable to speak to Mr [Turnbull] in order to discuss his last income tax return or his other financial circumstances. …

   I am satisfied on the evidence from her employer that [Ms A] is engaged as an accounts clerk and is currently earning an income at the rate of around $35,711 per annum. [She also receives income support payments.]

3. On 5 September 2018, Mr Turnbull completed a Statement of Financial Circumstances. He stated that he had two savings accounts, with $3 in his personal account and $370 in an account that he held as trustee of [Child]. In fact, he had more than $4,000 in his personal account, and, prior to withdrawing $3,000 on 4 September 2018, he had more than $7,000 in his personal account from 3 August 2018. At the hearing, Mr Turnbull was unable to explain why he had provided false information to the CSA.

4. In February 2019, Mr Turnbull lodged a departure application. He stated that he had been made redundant in November 2018.

5. On 26 July 2019, Mr Turnbull belatedly objected to the second departure decision. Presumably he also applied for an extension of time in which to object to that decision. It appears that that application has not yet been decided.

6. On 29 July 2019 an original decision maker granted Mr Turnbull’s departure application. The original decision maker varied Mr Turnbull’s adjusted taxable income to $0 from 20 April 2019 to 20 May 2019, and required Mr Turnbull to pay the minimum annual rate of child support payable from 21 May 2019 to 31 October 2019.

7. Paragraph 98C(1)(b) of the Act relevantly provides that a departure decision may be made in respect of a departure application if:

   (i)... one, or more than one, of the grounds for departure referred to in [subsection 117(2)] exists; and

   (ii)... it would be:

   (A)just and equitable as regards the child, the liable parent, and the carer entitled to child support; and

   (B)otherwise proper;

   to make a particular determination under this Part; …

8. The substance of Mr Turnbull’s submissions appears to be that, in the special circumstances of the case, he was required to make loan repayments that reduced his capacity to pay child support or reduced his income and financial resource: sub-subparagraph 117(2)(a)(iii)(A) and subparagraph 117(2)(c)(ia) of the Act, commonly referred to as Reasons 7 and 8. There also appears to be some evidence to suggest that [Ms A]’s income and financial resources were not fairly reflected for child support purposes in her 2016-17 adjusted taxable income of $22,355 which was being used in the administrative assessment. On a preliminary assessment of the evidence, there appears to be merit in Mr Turnbull’s objection, which is a factor that weighs in favour of granting the extension of time application.

Delay

1. As noted earlier, the CSA wrote to Mr Turnbull on 31 May 2018 and notified him of the first departure decision. It also informed him that:

   You can ask us to review the decision (we call this an objection) within 28 days from the date you receive this letter. For more information about how to object go to our website humanservices.gov.au/reviewsandappeals

2. On the same day the CSA phoned Mr Turnbull and noted, in part:

   - Contacted Mr Turnbull to advise him of the [departure] decision.

   - I advised Mr Turnbull I have made a decision based on the information available from his employer and Centrelink.

   - [Mr Turnbull disagreed with the decision.]

   - I advised Mr Turnbull again, he failed to respond therefore the decision has been finalised and he would be required to lodge an objection to the decision.

   …

   - Mr Turnbull stated what if he lodges his income and it is $20,000 and I advised my decision remains in place until 31/10/2018 and asked how would his income for 2017-18 be $20,000 when his average weekly income is $806.

   - I advised Mr Turnbull of the liability he is now assessed to pay and [Mr Turnbull] advised he would not pay and I advised him that CSA could request deductions from his employer and Mr Turnbull stated that I will not touch his wages or he will see me in Federal Court.

   - During conversation Mr Turnbull advised me that he would find my address. I asked [Mr Turnbull] is he threatening me and he advised he wasn’t. When I further questioned Mr Turnbull as to why he would want my address if he wasn’t threatening me he didn’t elaborate. …

3. Later during the same day, Mr Turnbull phoned the CSA and it noted, in part:

   He advised that due to illness and being in and out of hospital he had not responded to the initial [departure application] letters as there was a point where he wasn’t sure if he was going to live.

   I advised that he has the option to object to the [departure] decision. During this objection, he could also raise the issue of [Ms A’s] income being incorrect.

4. On 1 June 2018 the CSA sent assessment notices to Mr Turnbull which informed him of his rate of child support payable pursuant to the first departure decision.

5. On 28 June 2018, Mr Turnbull contacted the CSA and it noted, in part:

   PP Mr Turnbull called in upset as to why CS commenced deductions from wages without contacting him.

   …

   Advised Mr Turnbull his liability is $159.25 per month.

   Mr Turnbull be [sic] agitated stating that is not true, his child support is $120 per month.

   …

   Warned Mr Turnbull if he continues to be aggressive the call with be terminated.

   Mr Turnbull stated are you that dumb and stupid you can’t use a calculator, do you have a calculator.

   Call was terminated.

6. On 9 July 2018 the CSA sent assessment notices to Mr Turnbull which informed him of his rate of child support payable pursuant to the first departure decision.

7. On 11 July 2018, Mr Turnbull contacted the CSA and it noted, in part:

   Mr Turnbull advised he has completed a [departure application process] in the past and felt that the decision was incorrect.

   I reflected to Mr Turnbull the objection rights regarding this and his option with most CSA decisions to object in writing within 28 days.

   Mr Turnbull advised that on speaking with [decision maker] and another [service officer] at the time he was told he was not able to object as the decision had been made.

   I directed Mr Turnbull in future to review his notifications which will indicate objections rights and also advised regarding CS Guide information available on DHS website.

8. I consider it unlikely that a CSA employee would incorrectly state that a person could not object to a departure decision, and I consider it very unlikely that two CSA employees would give the same incorrect information.

9. The Child Support Guide includes information about applying for an extension of time in which to object.

10. On 26 July 2018, Mr Turnbull contacted the CSA and it noted, in part:

    [Mr Turnbull] said that he has lodged his tax return for 17/18 and wanted assessment back dated to reflect this.

    Explained to [Mr Turnbull] that assessment won’t be backdated due to [the departure decision].

    …

    [Mr Turnbull] said again he wants the assessment to be backdated. Advised [Mr Turnbull] that the assessment won’t backdate. If [Mr Turnbull] did not agree to [departure decision] he can object to decision.

    [Mr Turnbull] said that he has asked for objection form twice, which he has not received. [Mr Turnbull] said he can’t object as he is outside of 28 days. Explained he can ask for extension of time.

    Again I told [Mr Turnbull] that I won’t be changing assessment.

    [Mr Turnbull] said that he will be seeking legal advise [sic] and will be taking child support to the High Court. … [Mr Turnbull] said that he is going to summon myself and every one else he has spoken to to appear in court.

    …

    Again [Mr Turnbull] stated that he wanted assessment backdated. I told [Mr Turnbull] that I have printed off objection form and sent [it] to him.

11. Later that day Mr Turnbull phoned the CSA to make a complaint, and the CSA noted, in part:

    Mr Turnbull advised since [the date of the departure decision] he has asked for an objection form twice, which he has not received. Explained I will send a form today and will call him in a week’s time to follow up to ensure he received the form. Discussed extension of time as he is objecting after 28 days.

12. On 11 August 2018 the CSA noted:

    Complaint not upheld.

    Call reviewed and [service officer] was helpful and provided correct information. [Service officer] followed through with promise to send out objections form.

    Attempted to call Mr Turnbull as per request on 26th of July 2018 to see if he received the objection form that was posted 26 July 2018, phone rang through unable to leave message.

13. On 24 August 2018 the CSA sent assessment notices to Mr Turnbull which informed him of his rate of child support payable pursuant to the first departure decision.

14. On 10 September 2018, Mr Turnbull lodged his objection. It is worth noting that objecting to a departure decision is a very simple process. The Child Support Guide, to which Mr Turnbull was referred generally on 31 May 2018 and specifically on 11 July 2018, states at 4.1.4:

    An objection must be in writing from a person who may object to the decision … The Registrar cannot act on a verbal request to reconsider the original decision. A written objection can be lodged by mail, email or in person.

    It is not necessary for the person to use the word “objection” in their written objection, but they must ask the Registrar to reconsider the original decision.

15. At the hearing Mr Turnbull reiterated that the CSA had stated several times that it would send an objection form to him, but it had not done so. I noted that he lodged his objection on 10 September 2018 and I asked him when he received the form. He said he recalled receiving it around 4 September, which was his birthday, and “I said ‘happy birthday to me, I finally get to object.’” I noted that he signed the form and dated it “31/07/2018”. He said “it might have been an earlier one that went through.” He had never previously asserted that he lodged more than one objection, and if he had previously lodged an objection, he would not have said around 4 September 2018 that “I finally get to object.” His evidence on that issue is obviously false.

16. I consider the CSA’s file notes to be the best evidence of the conversations that occurred between Mr Turnbull and the CSA from time to time. When the first departure decision was made, the CSA promptly informed Mr Turnbull via a letter and two phone calls that he had a right to object to the decision. Instead of lodging an objection, his initial response was to try and intimidate the original decision maker in an attempt to have him take a course of action that he had stated was not open to him. (That was clearly Mr Turnbull’s intention, even though he was unable to admit it when questioned by the original decision maker). Over the following months, Mr Turnbull continued to assert that the first departure decision was incorrect, and the CSA continued to inform him of the steps he needed to take if he wished to have the decision reviewed, and he continued to not take those steps. I find that he chose to rest on his rights for several months rather than take those simple steps. That factor strongly weighs against the granting of the first extension of time application.

Prejudice to [Ms A]

1. If the application were granted, an objections officer would proceed to consider the parents’ incomes and financial resources in respect of mid-2018. It is not unusual for decision makers to consider a parent’s income and financial circumstances in respect of a year or so earlier. On the available evidence, if Mr Turnbull’s first extension of time application were granted, it would not cause significant prejudice to [Ms A]. That is a factor that weighs in favour of granting Mr Turnbull’s first extension of time application.

Public interest

1. Parliament has seen fit to set a 28-day time limit for the lodgement of objections so that parents (and the CSA) can act with reasonable certainty in respect of a formal decision once the objection period has elapsed. The public has an interest in reviews of CSA decisions being performed in a timely fashion and in a manner that ensures that all parties are treated fairly and equally. Granting Mr Turnbull’s first extension of time application would result in an objections officer reviewing a departure decision that was made more than a year ago. Those observations weigh in favour of refusing Mr Turnbull’s first extension of time application. 

Conclusion

1. While there appears to be merit in Mr Turnbull’s objection, and [Ms A] would not be prejudiced if his first extension of time application were granted, his election to rest on his rights and not formally seek review of the first departure decision for several months so strongly weighs against the granting of his first extension of time application that refusing that application is the preferable decision.

DECISION

The decision under review is affirmed.