Bacon and Child Support Registrar (Child support)

[2020] AATA 5561

Bacon and Child Support Registrar (Child support) [2020] AATA 5561 (5 November 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/BC019794

APPLICANT:  Mrs Bacon

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member S Letch

DECISION DATE:  5 November 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – application for extension of time – departure determination – no satisfactory explanation for the lengthy delay – some merit – prejudice to the other parent due to long delay – extension of time refused

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

BACKGROUND

1. Mrs Bacon has been assessed by the Child Support Agency (CSA) as liable to pay child support. On 24 August 2020, the CSA decided to refuse to extend the time in which Mrs Bacon could object (her objection was made on 6 July 2020) to an original decision of 2 March 2018 concerning a “change of assessment”.

2. On 4 September 2020, Mrs Bacon applied to the Tribunal for further review. Mrs Bacon participated in the Tribunal’s hearing by conference telephone.

CONSIDERATION

Background and legislative framework

1. A parent may object to a decision made by the CSA pursuant to section 80 of 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.

2. Section 82 of the Registration Act relevantly provides that a person may apply for an extension of time in which to lodge an objection and that the application must state fully and in detail the grounds for the application, including the circumstances concerning, and the reasons for, the failure by the person to lodge the objection within the 28-day time period prescribed. The Registration Act does not set out criteria for consideration when considering an application for an extension of time within which to object. However, the Child Support Guide (the Guide) contains useful guidelines at chapter 4.1.5. In summary, the Guide suggests that it is ultimately a question as to whether the interests of justice favour the granting or refusal of the application in the particular circumstances. Factors to be considered are the reason for the delay, the merits of the objection, whether the person has rested on their rights and any potential prejudice to the other party or the public.

3. The established cases indicate that the starting position is the prima facie rule that proceedings commenced outside a statutory period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). However, the primary concern “is to do that which will enable justice to be done between the parties” (see Martinsen v Secretary, Department of Family & Community Services [2004] FCA 297 per Spender J). Spender J quoted McHugh J in Gallo v Dawson (1990) 64 ALJR 459 as follows:

   In order to determine whether the rules [imposing time limits] will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time ...

   When the application is for an extension of time …it is always necessary to consider the prospects of the applicant succeeding in the appeal …

4. In line with Wilcox J’s survey of cases in Hunter Valley Developments P/L v Cohen (1984) 3 FCR 344, the Tribunal proposes to consider the matters identified in Gallo v Dawson under the following heads:

   ·      the explanation for the delay;

   ·      the merits of the substantial application;

   ·      any prejudice to the other party including any prejudice in defending the proceedings occasioned by the delay; and

   ·      any public interest considerations that might flow from a successful application including “the unsettling of other people” (Ralkon v Aboriginal Development Commission(1982) 43 ALR 535 at 550) or of “established practices” (Douglas v Allen (1984) 1 FCR 287).

Explanation for the delay

1. The delay in this case is very lengthy and would require exceptional circumstances to entertain an extension being granted.

2. The CSA materials reveal Mrs Bacon was clearly advised of her right to object within 28 days; a file note (folio 734 of the CSA materials) reveals she was verbally advised of the outcome and her right to take the matter further. It was recorded that she was “not happy with the outcome”; however, she took the matter no further.

3. Mrs Bacon told the Tribunal that she considers the wages of the other party have been under-assessed; she also says that the other party had always intended to cover the school fees and it is not fair that she be assessed to make a contribution. At the time of the original decision, she thought she had the “right to change what had been occurring for the last ten years”; it was not until the other party made another application that she received some independent advice and was told something different. Mrs Bacon said that she has objected to a recent decision concerning a fresh change of assessment application by the other party.

4. It seems to the Tribunal Mrs Bacon made an assessment not to challenge the decision at the relevant time; she has since formed a different view. She effectively “rested on her rights”; she was not prevented from exercising her rights by any factors beyond her control.

5. Consistent with the case law in this area, the Tribunal does not consider she has a reasonable explanation for what is a very lengthy delay.

Merits of the objection

1. There is no point granting an extension if an objection is unlikely to succeed.

2. The Tribunal observes that the test for Mrs Bacon to be assessed as liable for a contribution to school fees is whether she and the other parent expected the children to be educated privately. There seems no serious dispute that both parents held such an expectation. However, the decision of March 2018 deals with other aspects of the assessment – the relatively broad discretion afforded to decision-makers in change of assessment matters means it cannot be said an objection, if permitted to proceed, would be devoid of possible merit.

Potential prejudice

1. The delay here is very lengthy. The Tribunal is most concerned with the prejudice to the other party who has been entitled to rely, and budget, upon the original decision. This factor weighs very heavily against an extension being given.

Public interest considerations

1. The statute provides for a 28-day period for the lodgement of objections so that parents (and the CSA) can act with certainty as to the outcome when the objection period has elapsed. The public has an interest in reviews of decisions made by the CSA being performed in a timely fashion and in a manner that ensures all applicants are treated fairly and equally. Accordingly, an extension of the time for objection, even a brief one, is not to be automatically granted.

Conclusion

1. Mrs Bacon does not have a reasonable explanation for the lengthy delay. The Tribunal is particularly concerned about the prejudice to the other party who has been entitled to rely on the original decision.

2. Mrs Bacon, of course, retains the right to exercise her objection and other appeal rights in respect of the recent change of assessment decision; the CSA will not be bound by determinations or findings of fact by earlier CSA decision-makers, and is required to consider each change of assessment application afresh, and upon its own merits.

3. The Tribunal is satisfied that the interests of justice require that the extension application be refused.

DECISION

The decision under review is affirmed.