Beamish and Child Support Registrar and Molloy (Party Joined)

[2008] AATA 586

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 586

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No V 200600326

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		MELANIE BEAMISH

Applicant

And CHILD SUPPORT REGISTRAR

Respondent

And           MARK MOLLOY

Party Joined

DECISION

Tribunal Regina Perton, Member

Date8 July 2008

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) Regina Perton

Member

CHILD SUPPORT – refusal of extension of time to seek review by Child Support Registrar – change of legislation regarding review of child support decisions ‑ whether Child Support Registrar still retains power to review – whether any prospects of success at review ‑ decision affirmed.

Child Support (Assessment) Act 1989 ss 98X, 98Z, 98ZD, 98ZE, 106A

Child Support Legislation Amendment (Reform of the Child Support Scheme New Formula and Other Measures) Act 2006  s 77(6)

Child Support (Registration and Collection) Act 1988 s 80(5)

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Peczalski v Comcare (1999) 58 ALD 697

REASONS FOR DECISION

8 July 2008 Regina Perton, Member    

1.       Melanie Beamish and Mark Molloy are the parents of a daughter born on 19 October 2004.  Their relationship ended before their daughter’s birth.   Miss Beamish telephoned the Child Support Agency (CSA) on 4 February 2005 to apply for an assessment of child support payable by the child’s father.  A delegate of the Child Support Registrar (the Registrar) refused the application because Miss Beamish was unable to provide any proof that Mr Molloy was the child’s father.  At that time, Mr Molloy had not been registered as the father on the birth certificate nor had there been any DNA testing, court order or other documentation confirming the child’s paternity.

2.       The CSA wrote to Miss Beamish on 4 February 2005 and informed her that she could lodge an objection against the decision to refuse her application.  Miss Beamish lodged an application for review, which was received by the CSA on 11 April 2005.  On 23 April 2005, the CSA informed her that her application for review was outside the prescribed time limits but that she could lodge an application for extension of time in which to lodge an objection.  The CSA received that application on 9 May 2005.  On 16 May 2005, the application for extension of time was refused.  The CSA wrote to Miss Beamish on that day informing her that she had a right to seek review of its decision through this Tribunal. 

3.       On 6 January 2006, Miss Beamish lodged a fresh application for a child support assessment.  This application was successful.  In her application, she asked that the assessment be backdated to 4 February 2005.  The CSA informed Miss Beamish on 17 January 2006 that the agency did not have the legislative power to backdate the payment beyond the date of the successful application i.e. 6 January 2006; and that her only option would be to seek review of the refusal of an extension of time with the Tribunal. 

4.       On 26 April 2006, Miss Beamish lodged an application for review with the Tribunal.  After being informed by the Tribunal that her application for review had been lodged outside the prescribed time limits, on 3 May 2006 Miss Beamish lodged an application for extension of time to apply to the Tribunal for review.  The CSA objected to the extension of time on a number of bases including that it had made Miss Beamish aware of her review rights almost a year earlier.  On 28 September 2006, the Tribunal granted Miss Beamish an extension of time to lodge her application for review with the Tribunal.  On 29 August 2006, the Tribunal joined Mr Molloy as a party to the proceedings, despite Miss Beamish’s objection. 

Issue

5.       The issue for the Tribunal is whether it should set aside the CSA’s decision of 17 May 2005, not to grant Miss Beamish an extension of time to seek review beyond the usual 28 day limit, following the CSA’s decision on 4 February 2005 to refuse an assessment of child support on the basis of insufficient evidence of parentage.

Legislative framework

6. At the time that Miss Beamish sought an extension of time to review the CSA’s decision of 4 February 2005, s 98X of the Child Support (Assessment) Act 1989 (the Act) allowed a person to lodge an objection to a decision made under the Act. Section 98Z provided a time limit of 28 days to lodge an objection. Section 98ZD allowed for an objection to be lodged out of time if an application for extension of time was made. Section 98ZE allowed for consideration of the application for extension of time and the right to lodge an application for review with the Tribunal if the extension of time was refused.

7.       The Child Support Legislation Amendment (Reform of the Child Support Scheme New Formula and Other Measures) Act 2006 (the Amendment Act) which commenced on 1 January 2007, amended the review provisions of the Act.  Section 77(6) of the Amendment Act allowed for the proceedings before the Tribunal to continue.  There are transitional provisions which allow the Registrar to continue to deal with certain matters lodged before the commencement of the amendments.  However, the transitional provisions setting out the Registrar’s powers appear to exclude the Registrar from making decisions about parentage disputes lodged before 1 January 2007. 

Should an extension of time be given?

8.       In considering whether to grant an extension of time, the Tribunal needs to consider more than just the reasons why an applicant lodged his or her application for review out of time.  Factors relevant to the exercise of discretion include the explanation of the delay, the conduct of the person seeking the extension of time, prejudice to the other parties and the merits of the application (Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; Peczalski v Comcare (1999) 58 ALD 697).

9.       While the parties in this matter raised a number of factors for and against the extension of time, of the kind set out in Hunter Valley, the aspect of most concern in this matter is whether there is any prospect of a successful outcome if the Tribunal were to extend the time for lodgement of the objection.  The main barrier to a successful outcome is that the transitional provisions in the Act no longer appear to allow the CSA to reconsider Miss Beamish’s original application.

10.     In a letter to the Tribunal, dated 21 March 2007, Ms N McCartin of the CSA wrote about the impact of the transitional arrangements in the Act which commenced on 1 January 2007.  Her comments included the following:

… The amendments in question are in respect of the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988 that took effect from 1 January 2007. Pursuant to one of the amendments, an applicant cannot lodge an objection to a decision of the Child Support Registrar refusing to accept an application for an administrative assessment where one of the reasons for the decision was that the Child Support Registrar was not satisfied that the person from whom child support was sought was a parent of the child (subsection 80(5) of the Child Support (Registration and Collection) Act 1988). In such a case, the amendments provide that a person can apply to court under section 106A of the Child Support (Assessment) Act 1989 for a declaration that the person is entitled to an administrative assessment.

Miss Beamish seeks review of the Child Support Registrar's decision refusing her request for an extension of time in which to object to the earlier decision of the Child Support Registrar refusing to accept her application for an administrative assessment. One of the reasons for the decision to refuse to accept the application for an administrative assessment was that the Child Support Registrar was not satisfied that the person from whom child support was sought was a parent of the child.  The effect of the application provisions of the legislative amendments is that provision is made for pending tribunal proceedings (such as Miss Beamish's application which commenced prior to 1 January 2007) to be completed.  However, the application provisions also provide that if were the Tribunal to decide to grant the extension of time to the applicant, the objection would then be lodged under the legislation as amended…. This outcome, however, appears anomalous as the legislation as amended states that an objection cannot be lodged where the issue in question is parentage (as outlined above).  I therefore sought advice on the operation of these provisions of the consequence is that even if Miss Beamish is successful in the application for review of the extension of time decision, there is no legislative basis for the Child Support Agency to then consider Miss Beamish's objection, rendering her application for Tribunal review as effectively futile.

The advice I have obtained confirmed that if Miss Beamish were to be successful in her application before the Tribunal, the Child Support Agency has no legislative basis on which to then consider and determine the objection.

I regret that the situation has arisen and surmise that it is likely that when the amendments and transitional provisions were drafted and enacted late last year the particular situation that Miss Beamish finds herself in, was not contemplated.  However, the application provisions are clear and therefore there is no legislative basis for the Child Support Agency to ultimately make an objection decision in these circumstances.

In light of the above, the appropriate avenue available to Miss Beamish to resolve this matter is to now make an application to court under section 106A of the Child Support (Assessment) Act 1989 for a declaration that she is entitled to an administrative assessment of child support (in respect of her initial application).

…

11.     Kathleen Ng of Victoria Legal Aid, acting on behalf of Miss Beamish, responded to the Tribunal on 22 May 2007:

… Should the matter be referred back to the Child Support Agency for consideration, then the agency is able to make its decision and provide reasons.

If in due course, Ms Beamish's application is required to proceed to court, she would need to satisfy the court that it has the jurisdiction to hear the matter and she would also require leave for the application to be filed out of time.

If the transitional provisions in the Child Support Legislation (Reform of the Child Support Scheme - New Formula and Other Measures) Act 2006 have caused difficulties for applicant such as Ms Beamish’s, it is hoped that they are referred to the Department of Families Community Services and Indigenous Affairs.  In this regard, it is noted that the Consolidation Bill currently before Parliament was meant to clarify and refine the amendments and to address anomalies.

…

12. At the final hearing of this matter on 7 May 2008, all the parties agreed that there had not been any further amendments made to the transitional provisions in the Act which would be helpful to Miss Beamish. Miss Beamish’s counsel submitted that the Tribunal should nonetheless set aside the CSA’s decision and then allow the Registrar to make a decision that he/she has no power to make a determination about the matter. Armed with a letter to that effect, Miss Beamish would then have grounds to take the matter to court pursuant to s 106A of the Act. Ms C Ryan, also representing the CSA, submitted that the Tribunal should not grant the extension of time as, effectively, there could be no reconsideration by the CSA and therefore any such grant by the Tribunal would be an exercise in futility. She stated that Miss Beamish should make an application to the court directly rather than the CSA dealing with the matter again.

13.     The Tribunal accepts Ms Ryan’s submission.  It does not believe that there is any point in granting an extension of time where it is unlikely or impossible for Miss Beamish to obtain an outcome that will result in the back payment she is seeking.  It is futile to refer the matter back to the CSA when the result will be that the Registrar informs Miss Beamish that the CSA no longer has the power to consider her application because her original application was about a parentage dispute.  Therefore, the Tribunal affirms the CSA’s decision not to grant an extension of time.

Decision

14.     The Tribunal affirms the decision under review.

I certify that the fourteen [14] preceding paragraphs are a true copy of the reasons for the decision herein of

Regina Perton, Member

Signed:           Olympia Sarrinikolaou

Clerk              

Dates of hearing:  3 March 2008 and 7 May 2008
Date of decision:  8 July 2008
Counsel for applicant:                   Ms B Tulloch
Solicitor for applicant:                   Victoria Legal Aid
Advocate for respondent:            Ms C Ryan

Advocate for party joined             Self‑represented