Archdale and Child Support Registrar (Child support)

[2024] AATA 795

Archdale and Child Support Registrar (Child support) [2024] AATA 795 (20 February 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/PC027022

APPLICANT:  Mr Archdale

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  20 February 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – application for extension of time - no satisfactory explanation for the delay – 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

BACKGROUND

1. Mr Archdale and Mrs Archdale are the parents of [Child 1] (born June 2011), [Child 2] (born November 2014) and [Child 3] (born June 2016).

2. On 20 February 2019 Services Australia – Child Support (Child Support) made the decision to accept a child support application from Mrs Archdale for [Child 1], [Child 2] and [Child 3].  Initially the parents had a private arrangement in place for the collection of child support.

3. On 13 June 2023 Mr Archdale objected to this decision and as his objection was not made within the prescribed period he applied for an extension of time on the same date.

4. On 23 October 2023 Child Support made the decision to refuse the request for an extension of time and on 8 November 2023 Mr Archdale sought a review of the refusal decision by the Administrative Appeals Tribunal (the Tribunal).

5. The Tribunal conducted a hearing into the application on 20 February 2024.  Mr Archdale appeared before the Tribunal and gave evidence on affirmation.  Child Support provided the Tribunal and the parties with papers relevant to the matter (362 pages).  At hearing Mr Archdale provided additional evidence in support of his case (A1–A152).

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (the Act) and the Child Support (Assessment) Act 1989 (the Assessment Act).

2. The issue which arises in this case is whether or not to grant the request made by Mr Archdale for an extension of time to lodge an objection to the decision made by Child Support on 20 February 2019 (the original decision).

CONSIDERATION

1. Part VII of the Act is about the procedures related to objections made for certain decisions. Section 81 is about time limits on lodging objections and provides that a person has 28 days in which to lodge an objection after a notice of the decision is served on them. Section 82 provides for a person to apply for an extension of time to lodge an objection after the 28-day period has elapsed. Section 83 requires Child Support to either grant or refuse an extension of time application and serve notice in writing of the decision.

2. In the event Child Support refuses the extension of time application, the person applying may apply to the Tribunal for a review (item 1 of the table in subsection 89(1) of the Act).

3. The Tribunal finds, based on the evidence provided, that Mr Archdale was advised about the outcome of the original decision by post in a letter from Child Support dated 20 February 2019.  Under provisions of the Acts Interpretation Act 1901 and the Evidence Act 1995, he was therefore taken to be served with written notice of this decision by 8 March 2019.  Given Mr Archdale lodged his objection more than 28 days after he was served with notice, the Tribunal is satisfied an extension of time is necessary.

4. The Tribunal is required to consider whether or not it is reasonable or proper for an extension of time to be granted to Mr Archdale to lodge his objection to the decision made on 20 February 2019. From other decisions, which provide guidance to the Tribunal on this matter, it is clear that generally the statutory time limit of 28 days is to be enforced unless there are acceptable reasons for departing from this prescribed timeframe.

5. A review of relevant court decisions establishes that when considering matters relating to an extension of time, the Tribunal should take into account and balance a range of factors. These factors are a guide and are not exhaustive, but generally include:

   ·     the reasons for the delay and whether the applicant rested on their rights;

   ·     the merits of the substantive application;

   ·     any prejudice to the other party including any difficulties they will experience in providing evidence as a result of the delay;

   ·     any prejudice to the general public; and

   ·     fairness in granting an extension of time.

Reasons for the delay

1. The Tribunal finds that Mr Archdale’s application for an extension of time on 13 June 2023 in relation to the decision of 20 February 2019, of which he was notified by post, is approximately 1,529 days out of time.

2. In seeking an extension of time Mr Archdale told the Tribunal the parents separated in April 2019 and not January 2019 as Mrs Archdale had told Child Support.  Mr Archdale said he would have objected sooner but had never been told he could dispute the decision to accept the application Mrs Archdale had made for a child support assessment.

3. Mr Archdale said it was partly his fault as Mrs Archdale had convinced him to support the application.

4. The Tribunal notes in evidence that Child Support contacted Mr Archdale on 20 February 2019 to discuss the registration process for the child support assessment application lodged by Mrs Archdale.  The record of that conversation does not indicate Mr Archdale disputed the application or raised any concerns about the date of separation.

5. Mr Archdale added that he found Child Support very difficult to deal with and avoided contacting them because the child support system was so confusing.  Mr Archdale said when he did speak to Child Support he was usually given conflicting information.

6. The Tribunal notes in evidence that Mr Archdale spoke to Child Support on numerous occasions between the date of the application for a child support assessment and the date he objected but did not raise concerns about the application nor seek advice about how to object.  This includes conversations with a child support officer on 15 July 2019 in relation to an application for collection made by Mrs Archdale, on 19 August 2020 in relation to assessment notices he had received, on 8 October 2020 about an estimate of income, on 3 December 2020 about a change in care, on 8 January 2021 in relation to his child support payments, on 21 June 2021 about an estimate of income, on 23 September 2021 about a change of assessment, on 29 October 2021 about his income and on 9 February 2022 about a change of assessment.

7. Despite frequent contact with Child Support, Mr Archdale did not dispute the start date of the child support application until he objected on 13 June 2023.  The Tribunal is not satisfied that Mr Archdale has provided a reasonable explanation for the lengthy delay in applying for a review of the original decision.  The Tribunal finds Mr Archdale rested on his rights.

Merits of the objection

1. Mr Archdale told the Tribunal the parents were living together in [Town 1] until Mrs Archdale moved more than 600 km away to [Town 2] with the children in January 2019.  He said this was in time for the start of the school year.  Mr Archdale said he stayed behind in [Town 1] to undertake repairs to the family home so it could be placed on the rental market.  Mr Archdale said the parents remained in a relationship until April 2019.

2. Mr Archdale said as the parents were still together he was paying the rent on the property in [Town 2] as well as other expenses.  Mr Archdale said Mrs Archdale had admitted in an affidavit in relation to a family violence matter that the parents did not separate until April 2019.

3. An application for a child support assessment must be accepted if Child Support is satisfied the application is properly made (subsection 30(1) of the Assessment Act). An application is properly made if it complies with sections 24, 25, 25A and 27 of the Assessment Act.

4. Section 25 of the Act states that a parent can apply for a child support assessment for a child if they are not living with the other parent of the child as their partner on a genuine domestic basis. The factors to be considered in establishing whether or not parents are living together as partners on a genuine domestic basis are outlined in the ‘Social Security Guide’ at 2.2.5.30:

   ·     financial aspects of the relationship

   ·     nature of the household

   ·     social aspects of the relationship

   ·     presence or absence of a sexual relationship, and

   ·     nature of the commitment.

5. Mr Archdale has explained that Mrs Archdale moved with the children from [Town 1] to [Town 2] in January 2019 and he stayed in [Town 1].  Mr Archdale has said the parents remained in a relationship until April 2019.

6. It is possible Mr Archdale and Mrs Archdale did not separate until April 2019, however, Mr Archdale has not provided any detailed evidence to support his contention.  Although Mr Archdale indicated that Mrs Archdale had confirmed the date of separation as April 2019 in an affidavit, he did not provide the Tribunal with a copy of this affidavit.

7. The test of merit has alternatively been expressed as whether, were it to proceed, the application for review “would have good prospects of success” (Smith and Commissioner of Patents [2012] AATA 60 at [29]–[31]).

8. Based on the evidence provided the Tribunal finds the objection made by Mr Archdale would not have good prospects of success.  The Tribunal finds his application has little merit.

Potential prejudice to Mrs Archdale and the wider public

1. The Tribunal must also consider the potential prejudice to Mrs Archdale and the wider public.  Mrs Archdale should ordinarily be able to rely on the child support assessment once the period for objection has passed.  The application made by Mr Archdale is more than four years out of time but the Tribunal is satisfied Mrs Archdale would be able to provide evidence in relation to her application for a child support assessment which is relevant to the objection.

2. Time limits for the review of administrative decisions should be observed as strictly as possible in order to assist the proper administration of government agencies.  There is also a public expectation that there be a degree of certainty in relation to time limits but the law also allows for extensions of time.  In this case, the Tribunal believes there would be limited prejudice to the general public if an extension of time to lodge an objection was granted.

Fairness in granting an extension of time as between Mr Archdale and other persons in similar positions

1. Child Support notifies parties that they can object to decisions and most people comply within the relevant timeframe.  It is clear the statutory time limit is to be enforced unless there are acceptable reasons for the delay. The Tribunal is not satisfied with the explanation Mr Archdale has given for the delay in submitting his objection and there is little merit to the objection.  The Tribunal is not satisfied his circumstances are sufficiently different to that of other applicants in a similar position such that an extension of time is warranted. The Tribunal finds that it would be unfair to others to grant Mr Archdale an extension of time in view of the statutory timeframe which applies and the unsatisfactory explanation for the delay in objecting to the original decision.

CONCLUSION

1. Mr Archdale has not provided a satisfactory explanation for the delay in applying for review of the original decision and the Tribunal could find little merit to his application.  This weighs heavily against the granting of an extension of time. There is unlikely to be prejudice to Mrs Archdale or the general public should an extension of time be granted, however, the Tribunal is of the view it would be unfair to allow Mr Archdale an extension of time given his circumstances are not sufficiently different to that of other applicants in a similar position.

2. Having carefully considered the various factors which it must take into account, the Tribunal finds it would not be proper for the extension of time in which to lodge an objection to be granted.  The application is, therefore, refused.

DECISION

The decision under review is affirmed.