Bayer and Child Support Registrar (Child support)

[2020] AATA 1747

Bayer and Child Support Registrar (Child support) [2020] AATA 1747 (16 April 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC018131

APPLICANT:  Mr Bayer

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member S Letch

DECISION DATE:  16 April 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – refusal to grant an extension of time to object – no reasonable explanation for the long delay in lodging the objection – not devoid of merit – 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 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. Mr Bayer has been assessed by the Child Support Agency (CSA) to pay child support to [Ms A]. On 27 August 2018, the CSA made a “change of assessment” decision reducing Mr Bayer’s rate of child support from 27 May 2018, and not an earlier date.  

2. Mr Bayer objected to the decision on 26 November 2019, well outside the 28 day period in which to bring an objection.

3. On 18 December 2019, the CSA decided to refuse to extend the time in which Mr Bayer could object. On 29 December 2019, Mr Bayer applied to the Tribunal for review.

4. Mr Bayer 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. Mr Bayer told the Tribunal that at the time of the original decision, he did not take the matter any further as he did not have access to any further evidence, or access to [Ms A]’s income records. He said the CSA “refused to create an overpayment (for [Ms A]) at the time”. Since, as a result of a reconciliation exercise, his liability has been retrospectively increased. In short, he regards this situation as unfair.

2. The Tribunal understood Mr Bayer’s point. He elected not to exercise his rights, in part because of his assessment of the strength of the available evidence. However, inescapably, he was clearly advised of his objection rights; he had the opportunity, if he disagreed with the decision, to take the matter further at the time. Disagreement with a later (unrelated) decision does not provide a compelling basis excusing a lengthy delay.

3. The absence of a compelling explanation for what is a lengthy delay weighs against an extension being granted.

Merits of the objection

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

2. In light of the broad width of the discretion available to decision-makers in these types of matters, it could not be said that an objection, if permitted to proceed, would be devoid of possible merit.

Potential prejudice

1. The delay here is very significant. The other parent was entitled to rely, and budget, upon the original decision. This factor must weigh heavily against granting an extension.

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. Whilst understanding Mr Bayer regards the overall result in child support assessment unfair, that is not the test to be applied here. The Tribunal is not satisfied Mr Bayer has a reasonable explanation for electing to “rest on his rights”. The delay here is not a short one. The Tribunal is also particularly concerned about the possible prejudice to the other party given the length of the delay. 

2. In all the circumstances, the Tribunal considers the interests of justice are served by bringing finality to the decision of August 2018 and refusing to allow an extension of time for Mr Bayer to bring an objection.

3. As the Tribunal has reached the same conclusion as the CSA, the decision under review will be affirmed.

DECISION

The decision under review is affirmed.