Auberton and Child Support Registrar (Child support)

[2017] AATA 2958

Auberton and Child Support Registrar (Child support) [2017] AATA 2958 (7 December 2017)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2017/AC012448

APPLICANT:           Mrs Auberton

OTHER PARTY:           Child Support Registrar

TRIBUNAL:  Member K Dordevic

DATE DECISION MADE:           7 December 2017

DECISION:

The decision under review is affirmed.

CATCHWORDS

Child support – Refusal to grant extensions of time to object – Non-agency payments – Reasons for delay not reasonable – No merit – Decision under review affirmed

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.

STATEMENT OF REASONS

1. This review concerns whether an extension of time should be granted to allow Mrs Auberton to lodge an objection to a decision made by the Department of Human Services ‒ Child Support (the Department).

2. Mrs Auberton and Mr Auberton are parents of four children. There has been a child support assessment made by the Department since 17 December 2014. At all times the liability under the assessment has been registered for collection by the Department on behalf of the Child Support Registrar. At all times Mrs Auberton has been assessed as having sole care of the children.

3. On 16 March 2017 the Department credited Mr Auberton’s maintenance liability by $156 in recognition of a payment made to the joint loan account for the former family home on 14 March 2017. The Department’s record indicates that Mrs Auberton verbally advised that there was an agreement in place for mortgage payments to be made in lieu of child support, but that she no longer consented to these payments being credited to the maintenance liability. The Departmental officer noted that “now settlement has been done mortgage payments can’t be NAP’s unless she agrees”.

4. On 31 March Mr Auberton reported mortgage payments of $156 each, paid on 21 and 28 March 2017, and requested that they be credited to his maintenance liability. A letter was sent to Ms Auberton on the same date asking her to contact and confirm whether the information was correct.

5. On 4 April 2017 an objection officer verbally advised Mrs Auberton that her objection to the decision made on 16 March 2017 was disallowed. He also stated that the advice provided by the Departmental officer on 16 March 2017 was not correct, and that she would need to advise Mr Auberton that she no longer agreed to accept mortgage payments in lieu of child support. The objection officer also advised that as she had not advised Mr Auberton the application made by him on 31 March 2017 would be accepted. Mrs Auberton stated that she understood and that she would contact Mr Auberton by text that day and inform him that she no longer agreed.

6. On the same day an electronic letter was sent to Mrs Auberton advising that the Department credited payments of $312 against Mr Auberton’s maintenance liability. The letter advised she must lodge an objection to the decision within 28 days.

7. On 10 April 2017 Mrs Auberton again spoke to the objection officer who reiterated that the advice provided by the Departmental officer on 16 March 2017 was not correct.

8. On 12 April 2017 Mrs Auberton contacted the Department and advised that she was experiencing difficulties in accessing her letters though her myGov account. The Departmental officer advised that the letters would be sent to her by post. A message was then left on her answering machine confirming that the letters had been sent.

9. On 18 July 2017 Ms Auberton emailed the Department stating that she objected to decision to accept “two payments” after 16 March 2017 when she advised that there was no longer an agreement to credit mortgage payments.

10. An objection application dated 21 August 2017 was received by Child Support on 28 August 2017. She requested an extension of time in which to lodge the objection.

11. Mrs Auberton’s application for an extension of time was refused by the Department on 1 September 2017. She lodged an application with this tribunal on 6 September 2017 seeking a review of the decision to refuse her application for an extension of time in which to lodge her objection.

12. Mrs Auberton attended a hearing on 7 December 2017 by telephone. In addition to her oral evidence, the tribunal had regard to the documents supplied by the Department (folios 1 to 267).

CONSIDERATION

1. Subsection 80(1) of the Child Support (Registration and Collection) Act 1988 (the Act) provides that a party to a child support assessment can lodge an objection in writing to various decisions, including a decision to credit an amount against a person’s child support liability.

2. Section 81 of the Act requires that a person must lodge an objection to such a decision within 28 days after a notice of the decision is served on them.

3. Where the period for lodgement has ended, a person may send their objection to the Registrar along with an application requesting that the objection be treated as if it was lodged within the allowed time (section 82 of the Act). Section 83 of the Act provides that the Registrar must consider the application for extension of time, then grant or refuse that application and advise the person of the decision in writing. Section 89 of the Act allows the person who applied for the extension of time to apply to this tribunal for a review of that decision.

4. The tribunal considered the guiding principles for the exercise of the discretion to allow an extension of time as set out in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186. In that case the Federal Court said that an extension of time should not be granted unless it was proper to do so, noting that generally applications commenced outside of the prescribed time limit will not be considered. The Court held that a pre-condition for the discretion to be exercised favourably is that an applicant provides an acceptable explanation of the delay and that it is fair and equitable in the circumstances to extend the time.

5. A consideration of other relevant authorities establishes that when considering whether to allow an extension of time the tribunal should consider 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 that they will experience in providing evidence as a result of the delay;

   ·wider prejudice to the general public;

   ·fairness in granting an extension of time as between the applicant and other persons in a similar position; and

   ·whether it is proper to grant the extension of time.

The reasons for the delay and whether Mrs Auberton rested on her rights

1. Mrs Auberton stated that the primary reason for her delay in objecting to the decision was that she received incorrect advice from a Departmental officer on 16 March 2017 upon which she relied; she therefore thought that the Department would resolve the matter quickly and in her favour. It was put to Mrs Auberton that the objection officer advised her on 4 and 10 April 2017 that the advice was incorrect. The objection officer also stated that an objection decision regarding the mortgage payments 21 and 28 March 2017 would likely be affirmed; instead, the option of lodging a complaint was given, which she refused. In response Mrs Auberton merely reiterated that she was being penalised for the incorrect advice provided by a Departmental officer on 16 March 2017.

2. At hearing Mrs Auberton explained that she had trouble opening her myGov account, and therefore she was not served notice of the letter sent electronically on 4 April 2017. It was put to Mrs Auberton that she contacted the Department on 12 April 2017, advised that she was unable to access her online account, and the letter were then sent to her in the post. Ms Auberton advised that it was possible that she received the letter. The tribunal is satisfied that Mrs Auberton was sent notice of the 4 April 2017 decision by pre-paid post on 12 April 2017. Her objection, lodged on 28 August 2017, was received over three months outside the 28 day time frame.

3. The tribunal notes that Mrs Auberton emailed the Department on 18 July 2017 and advised that she wanted to object to the decision. She was advised on 5 August 2017 that she must lodge an objection in writing. The appropriate paperwork was sent to her on that day. Mrs Auberton signed the objection form on 21 August 2017 and it was received by the Department on 28 August 2017.  She was unable to satisfactorily explain the three month delay in lodging the objection.

4. Mrs Auberton lodged an application with this tribunal on 26 April 2017 regarding the objection decision which disallowed her objection to the decision to credit Mr Auberton’s $156 payment towards the mortgage on 14 March 2017 to his child support liability. Mrs Auberton submitted that she did not lodge the objection at an earlier time as assumed that the decision of 4 April 2017 would all be heard together with the decision on which she had sought review.  She went on to state that she withdrew that application as she understood her application had no merit. The tribunal is not persuaded that Mrs Auberton’s previous application to this tribunal contributed in any way to her delay in lodging her objection to the 4 April 2017 decision.

5. Overall, the tribunal is not persuaded that Mrs Auberton’s explanation for the delay in lodging her application was reasonable. Being aware of the statutory timeframes she rested on her rights.

The merits of Mrs Auberton’s objection

1. Mrs Auberton states that there was an agreement in place to credit mortgage payments made by Mr Auberton, but that this ceased from the date of their property settlement, being 9 March 2017. It is not in dispute that Mrs Auberton did not communicate to Mr Auberton that she would no longer accept the payments in lieu of child support prior to 31 March 2017. She explained that as she no longer lived in the property and settlement had been finalised she assumed that the payments could no longer be credited and she was not aware that she needed to advise Mr Auberton that she no longer agreed.

2. Section 71A of the Child Support (Registration & Collection) Act 1988 (the Act) is directly relevant to this application and allows a payee or a payer to apply to the Child Support Registrar for a payment made as having being made to the Registrar, and so credited against the amounts payable under an enforceable liability.

3. Certain requirements must be met before the Registrar can credit payments under section 71A. These are:

   ·The payments must have been actually made;

   ·The payments must have been made by a payer during a period when the maintenance liability was enforceable by the Department;

   ·Payments to the third party must have been made in complete or partial satisfaction of a debt owed by the payee, the payer or both the payee and payer; and

   ·Both the payee and the payer must have intended that these payments were paid in complete or partial satisfaction of a child support debt due to the Department.

4. It is not in dispute that the first three requirements are satisfied. Mrs Auberton contends that the final one is not, as on 16 March 2017 she advised a Departmental officer that she no intended the mortgage payments being in lieu of child support. It is also not in dispute that Mrs Auberton did not communicate this to Mr Auberton prior to 31 March 2017.

5. Mr Auberton was not aware that Mrs Auberton no longer intended that mortgage payments were in satisfaction of child support payable under the liability; the tribunal accepts that when making the mortgage payments on 21 and 28 March 2017 he was not aware that she no longer agreed. Furthermore, there is no evidence to suggest that Mrs Auberton was not partially responsible for mortgage repayments on these dates as it is unclear when the property settlement was finalised. Therefore, the payments can be credited under section 71A of the Act.

6. The tribunal finds that Mrs Auberton’s substantive objection in relation to the crediting of the mortgage payments has no merit.

Prejudice to Mr Auberton and the wider public

1. This matter concerns the crediting of $312 to Mr Auberton’s child support liability. The tribunal does not consider that there would be significant prejudice to Mr Auberton if Mrs Auberton is granted an extension of time. However, the tribunal considers that there would be prejudice to the wider public as Mrs Auberton’s objection has no merit. A decision to grant Mrs Auberton an extension of time in which to lodge her objection would be fruitless and would lead to unnecessary administrative costs.

Fairness in granting an extension of time as between the applicant and other persons in a similar position

1. The tribunal finds that it would not be fair to others to grant Mrs Auberton an extension of time. This is largely because her application has no merit.

Whether it would be proper to grant an extension of time

1. The tribunal considers that in the circumstances of this case it would not be proper to grant Mrs Auberton an extension of time to object to the Department's decision of 4 April 2017. The most persuasive factor for the tribunal in refusing Mrs Auberton’s application for an extension of time is that her application has no merit, although the tribunal notes that she also rested on her rights and did not provide satisfactory reasons for the delay.

DECISION

The decision under review is affirmed.