Bhatti and Child Support Registrar (Child support)

[2020] AATA 4783

Bhatti and Child Support Registrar (Child support) [2020] AATA 4783 (24 September 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/MC019713

APPLICANT:  Mr Bhatti

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member J Longo

DECISION DATE:  24 September 2020

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that the time to object to the decision of the Child Support Registrar is extended.

CATCHWORDS

CHILD SUPPORT – refusal to grant an extension of time to object – refusal to credit non-agency payments - reasonable explanation for the delay in lodging the objection late – some prospects of objection succeeding and therefore there is arguable merit – the extension of time should be granted – 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 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. On 23 January 2020, Mr Bhatti made an application for $1,500 in non-agency payments to be credited against his child support liability. On 7 February 2020 the Child Support Registrar’s delegate made a decision to refuse to credit the non-agency payments.

2. On 3 June 2020 Mr Bhatti objected in writing to the decision to refuse to accept his non-agency payments. Mr Bhatti indicated in his correspondence that he wished for the decision to be reviewed and provided reasons for not lodging within 28 days of receiving the original decision. A delegate of the Registrar refused the application for extension of time on 27 June 2020 and on 24 August 2020 Mr Bhatti applied to this tribunal for review of the decision regarding his application for an extension of time. The tribunal spoke to Mr Bhatti on 24 September 2020.

CONSIDERATION

1. The law relating to a person’s right to seek review of a decision of the Registrar of the Child Support Agency is contained in the Child Support (Registration and Collection) Act 1988 (the Act). Section 81 of the Act requires that a person must lodge an objection to a decision of the Registrar within 28 days after a notice of the decision is served on them.

2. Where the period for lodgement has ended, the person may send the objection to the Registrar along with an application requesting that the objection be treated as if it was duly lodged, that is, that it was lodged within the allowed time (section 82 of the Act). Section 83 then provides that the Registrar must consider the application for extension of time, 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.

3. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, the High Court, in dealing with an extension of time case and the general concept of time limitation periods, noted that while an extension of time is the exception to the general rule, there are legislative provisions which in the circumstances of the facts of an individual case, may indicate that justice is served by the general rule being overruled.

4. In making its decision, the tribunal has considered the guiding principles for the exercise of a discretion to allow an extension of time as set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (Hunter Valley Developments). 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 in general, applications or proceedings commenced outside of a prescribed time limit will not be considered. The Court also said that there must be an acceptable explanation for the delay and that it must be fair and equitable in the circumstances to extend time.

5. The Administrative Appeals Tribunal has applied the principles set out in the Hunter Valley Developments case in Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42 (Mulheron). The authorities, Hunter Valley Developments and Mulheron, establish that when considering whether to exercise the discretion to allow an extension of time, a decision-maker should consider and balance a range of factors. The tribunal has taken these factors into account in determining whether the extension of time should be granted.

6. Mr Bhatti stated to the tribunal that he was homeless from 10 October 2019 and was living between his brother’s and sister’s homes as he could not afford to rent another property as he was paying all of the expenses for the home where Ms Bhatti was residing with his daughter. Mr Bhatti stated that he was having difficulty with receiving and accessing his mail from the Agency. He stated that he was having these difficulties to the Agency in his objection to the decision. Mr Bhatti stated that he received correspondence stating that he had arrears and that he spoke to the Agency about his inability to pay these amounts due to his payment of the expenses relating to the property where Ms Bhatti was residing and also due to payments being made to Ms Bhatti as per a consent order made at the Federal Circuit Court.

7. The tribunal has had the benefit of the notes of the Agency’s discussions with Mr Bhatti. It is clear that the delegate of the Registrar acknowledged that evidence of non-agency payments needed to be provided and that he was advised that he needed to object to the decision refusing the non-agency payments. It would be plausible, given this information, that Mr Bhatti was aware that he was required to lodge an objection; however, at the time of the discussion, Mr Bhatti was also discussing his income and changes in his income. This, in the tribunal’s view, led to confusion and, coupled with Mr Bhatti’s lack of awareness that he had been advised of the decision to refuse the non-agency payments,, and that this correspondence contained information about the process of seeking review by the Agency, led to the delay in lodging his application. Mr Bhatti also stated that the change in his income was due to becoming unemployed, as a result of a back injury sustained in the workplace in February 2020, at the time of the decision to refuse the non-agency payments.

10.The tribunal has determined that Mr Bhatti was not fully advised of his rights of review and has provided an acceptable explanation for the delay, given he was not aware of his review rights. There are notes which indicate that Mr Bhatti had further discussed his payments to Ms Bhatti subsequent to the decision to refuse the non-agency payments in February 2020. The tribunal is satisfied that Mr Bhatti did not rest on his rights and sought review once he became aware of the requirements.

11.The tribunal also considered the merits of Mr Bhatti’s objection to the decision. Mr Bhatti has stated that he was making payments directly to Ms Bhatti and also paying expenses related to the property in which she was residing. While a substantive review of the decision has not been conducted, the tribunal has considered whether there was an arguable case in the circumstances of determining whether to extend the time to lodge an objection. The tribunal notes that the types of payments indicated by Mr Bhatti can be considered as non-agency payments and therefore the tribunal is satisfied that the issues in dispute have some merit, in that there is an arguable case.

12.The tribunal is also satisfied that it would be fair and equitable in the circumstances to extend the time to lodge an objection, given there is an acceptable explanation for the delay and that Mr Bhatti was in contact with the Registrar’s delegate about reviewing the decision. Similarly, the tribunal does not consider that there would be any prejudice to the other party, or generally, in extending the period for an objection. The tribunal is of the view that the relevant information for an objection to be determined is still available. Mr Bhatti requested a review out of time. He has provided an adequate explanation for the delay and the tribunal is of the view that there is an arguable case and that it is fair and equitable to extend the time. In the circumstances, the tribunal has decided to extend the time to lodge an objection.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that the time to object to the decision of the Child Support Registrar is extended.