Azagoury and Child Support Registrar (Child support)

[2025] ARTA 945

Azagoury and Child Support Registrar (Child support) [2025] ARTA 945 (17 April 2025)

Applicant:Ms Azagoury

Respondent:  Child Support Registrar

Tribunal Number:  2024/SC028988

Tribunal:General Member P Jensen

Place:Brisbane

Date of Decision:  17 April 2025

Decision:

The decision under review is set aside and, in substitution, Ms Azagoury’s application for an extension of time in which to object to a decision dated 2 May 2024 is granted.

CATCHWORDS

CHILD SUPPORT – refusal to grant an extension of time to object – Court declarations – date of commencement – procedural fairness – objection withdrawn – arguable merit – decision under review set aside and substituted

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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.

Statement of Reasons

1. On 2 May 2024, Services Australia – Child Support (“Child Support”) decided to register a child support case with effect from 15 October 2023. Ms Azagoury was notified of that decision via a letter dated 2 May 2024. She had a right to object to that decision. To do so within time, she 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”). She objected on 5 August 2024. There is no dispute that she objected out of time. She applied for an extension of time in which to object: section 82 of the Registration Act. Child Support refused the application. She promptly applied to the Tribunal for review of that decision. I heard the matter on 11 April 2025. Ms Azagoury attended the hearing via MS Teams – video. She was represented by Mrs Chanelle Dean, solicitor at Legal Aid New South Wales.

2. 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 at [10]:

   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 …

3. The relevant chronology can be summarised as follows.

4. On 1 June 2023, Ms Azagoury applied to register a child support case. She claimed that [Mr A] was the father of their child.

5. On 5 July 2023, Child Support refused Ms Azagoury’s application because she had not provided evidence that [Mr A] was the father.

6. [In] November 2023, Ms Azagoury commenced proceedings in the Federal Circuit and Family Court (“the Court”) seeking certain declarations including a declaration that [Mr A] was the father.

7. [In] March 2024 the Court made two declarations. It declared that [Mr A] was the father. It also declared that pursuant to section 106A of the Child Support (Assessment) Act 1989 (“the Assessment Act”), [Mr A] should be assessed in relation to the costs of the child, i.e. a child support case should be registered in respect of the child. The Court also stated that it “requests” Child Support to register the child support case “as far back as 15 October 2023.”

8. On 9 April 2024, Mrs Dean provided Child Support with a copy of the Court orders and request. She also provided written submissions to the effect that:

   ·     The Assessment Act required Child Support to register the child support case from the date on which Ms Azagoury lodged her application, i.e. 1 June 2023, and there was no discretion for it to do otherwise. She referred to legislation in support of that submission. She also referred to Departmental policy which was to the same effect.

   ·     Child Support was required to comply with Court orders. Child Support was not required to comply with the Court request, and it could not comply with a request if doing so would be contrary to law.

9. On 23 April 2024, Child Support registered the child support case with effect from 1 June 2023 and it notified both parents of its decision. On the same day it phoned Ms Azagoury and, with the assistance of an interpreter that it provided, it explained its decision to her.

10. On 24 April 2024, [Mr A’s] solicitor sent a letter to Child Support which concluded:

    We therefore request that the judicial notation and request be honoured and the child support amount be assessed as far back as 15 October 2023.

11. As Mrs Dean subsequently noted, [Mr A] disagreed with Child Support’s decision and the appropriate course would have been for him to object to the decision. An objections officer would have then heard from both parents before deciding whether to change the decision. Instead, on 2 May 2024, Child Support decided to change the decision and register the child support case with effect from 15 October 2023. Child Support did not give Ms Azagoury an opportunity to be heard on the matter before making its decision. Both parents were notified of the decision.

12. On 22 May 2024, Ms Azagoury objected to the decision dated 2 May 2024. Her objection was lodged within time.

13. On 26 June 2024, Child Support contacted Ms Azagoury directly. It did not arrange for an interpreter to be available to assist with the conversation. Child Support’s file note of the conversation includes the following:

    Based on the information in the court order written [in] March 2024 the reason we used the date of 15 October 2023 was due to the court order supplied by [Ms Azagoury] on 09 April 2024.

    [Ms Azagoury] advised objected as was told to do so by her lawyer.

    Explained that if [Ms Azagoury] chooses to continue with the objection the outcome will more than likely not change.

    Based on this information [Ms Azagoury] advised she will withdraw and is happy to leave it as the 15 October 2023.

14. As Mrs Dean subsequently noted, there is nothing in the file note to suggest that Child Support had engaged with her (Mrs Dean’s) written submissions dated 9 April 2024.

15. On 27 June 2024, Mrs Dean spoke to Child Support about Ms Azagoury’s child support case more generally. It did not inform her that Ms Azagoury had withdrawn her objection.

16. On 4 July 2024, Mrs Dean spoke to Child Support about Ms Azagoury’s case. Again, it did not inform her that Ms Azagoury had withdrawn her objection.

17. On 17 July 2024, Mrs Dean spoke to Child Support. Its file note of the conversation includes the following:

    - it does not appear that an interpreter was used on the call with [Ms Azagoury] > Child Support called [Ms Azagoury]

    - advised this objection is able to be re-lodged with [Extension Of Time] requested > where a different outcome is able to be reached (if there is merit), the EOT would likely be accepted

    - [Ms Azagoury] or the objections officer may not have understood the situation

18. On 5 August 2024, Ms Azagoury lodged an objection and an application for an extension of time in which to object.

19. A complaint was lodged in respect of what occurred on 26 June 2024. On 26 August 2024, Mrs Dean contacted Child Support about the complaint and it noted:

    REP had a question in regards to an objection being lodged and outcome of a complaint she lodged.

    Advised REP that since the complaint was [a] behavioural complaint, we do not provide outcomes as they are managed internally.

    REP wanted to know if objection could be backdated as she believes [Ms Azagoury] was “forced” to withdraw her objection and was spoken to without an interpreter.

20. What was said on 26 June 2024 is obviously relevant to the current proceedings. It is not clear why Child Support did not provide a copy of the audio file to the Tribunal, or, if the investigation of the complaint had produced a summary of the audio recording, then a copy of that summary: section 23 of the Administrative Review Tribunal Act 2024. If I had considered it necessary, I would have directed it to do so.

21. On 18 November 2024, Child Support refused Ms Azagoury’s application for an extension of time in which to object. Its key findings for that decision were:

    The Court also requested that The Child Support Agency only assess the father in respect of the said child’s child support costs as far back as 15 October 2023.

    Upon review, we cannot be satisfied that an alternative decision would be made. Therefore, there was no merit to the objection. On face value, we had no arguable case.

22. As Mrs Dean subsequently noted, it appears that Child Support once again made a decision without engaging with her written submissions dated 9 April 2024.

23. On 9 December 2024, Ms Azagoury applied to the Tribunal for review of the extension of time decision. Mrs Dean provided detailed written submissions. She placed particular reliance on the Full Court of the Family Court’s decision in Calafiore and Netia [2019] FamCAFC 132, which dealt with a decision by a Judge to make a declaration pursuant to section 106A of the Assessment Act. The Full Court of the Family Court noted at [36], per Kent J, with Tree and Hogan JJ concurring:

    Her Honour indicates, correctly, that she does not have the power to order when the father pays child support from. However, her Honour also states that it is a matter for the CSA as to when to assess the child support payable by the father. However, as is established above, the statutory framework is determinative of that issue; there is no discretion on the part of the CSA to do anything other than take the assessment application as granted from the date that it was made […]

24. An extension of time application is not the appropriate forum in which to undertake a detailed analysis of the applicable law. Further, I am mindful that [Mr A] is not a party to the current proceedings. However, on a cursory view of the matter, Ms Azagoury has an arguable case.

25. Child Support phoned Ms Azagoury on 26 June 2024 to discuss her first objection. It did not contact Mrs Dean and ask her to seek her client’s instructions on the matter. It did not arrange for an interpreter to be available during its phone conversation with Ms Azagoury. It advised Ms Azagoury that her objection had poor prospects of success. It did not offer to include Mrs Dean in the phone conversation. It did not invite Ms Azagoury to discuss the matter with Mrs Dean before deciding whether to withdraw her objection. It appears that it had not engaged with Mrs Dean’s written submissions on the matter. To state the obvious, Child Support provided an opinion on Ms Azagoury’s prospects of success in circumstances where Child Support was also the decision-maker. It is hardly surprising that Ms Azagoury decided to withdraw her objection.

26. Given the history of the matter, the preferrable decision is to grant Ms Azagoury’s application for an extension of time in which to object. I have been critical of Child Support’s failure to hear from Ms Azagoury before deciding on 2 May 2024 to change the date from which the child support case was registered. One might query why I am granting Ms Azagoury’s extension of time application without hearing from [Mr A]. The answer is that I am not deciding the substantive issue; I am merely deciding whether an objections officer should decide the substantive issue after hearing from both parents. My decision will return the parents to the position they would have been in if [Mr A] had followed (and Child Support had required him to follow) the appropriate course for seeking review of the decision dated 23 April 2024 to register the child support case with effect from 1 June 2023.

DECISION

The decision under review is set aside and, in substitution, Ms Azagoury’s application for an extension of time in which to object to a decision dated 2 May 2024 is granted.