Cagney and Child Support Registrar (Child support)

[2018] AATA 4003

Cagney and Child Support Registrar (Child support) [2018] AATA 4003 (22 August 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/SC014431 & 2018/SC014484

APPLICANT:  Mrs Cagney

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member S Brakespeare

DECISION DATE:  22 August 2018

DECISION:

The decisions under review are affirmed.

CATCHWORDS
Child support - Refusal of extension of time to object - No adequate reason for the delay - Substantive applications do not have sufficient merit to justify granting extension of time - Extension of time to object should be 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. This review is about whether Mrs Cagney should be granted extensions of time to lodge objections to decisions made by the Child Support Agency.

2. On 8 May 2018 Mrs Cagney lodged applications for an extension of time to lodge objections to original decisions made by officers of the Child Support Agency[1] on 6 December 2012 and 7 August 2015.  The effect of the original decisions was to accept applications from Mrs Cagney for the Child Support Agency to collect child support for her (agency collection), and to collect three months child support arrears each time. Mrs Cagney wished to object to the decisions on the basis of her contention that she should have been paid nine months arrears each time when she made the agency collection applications. 

   [1] That is, the Department of Human Services, Child Support.

3. On 21 May 2018 an officer of Child Support Agency refused to grant the extension of time applications (the extension of time decisions).

4. Mrs Cagney lodged an application for review of the extension of time decisions with the tribunal on 27 June 2018.

5. A hearing was held on 22 August 2018. Mrs Cagney gave evidence on affirmation to the tribunal by conference telephone. The Child Support Agency provided a bundle of documents to the tribunal and to Mrs Cagney (461 pages) in accordance with section 37 of the Administrative Appeals Tribunal Act 1975. Mrs Cagney also provided documents to the tribunal (folios A1 to A9), a copy of which will be forwarded to the Child Support Agency.

6. Relevant aspects of the evidence and material before the tribunal will be referred to in the tribunal’s consideration of the issues which it has to decide.

ISSUE

1. The statutory provisions relevant to this review are the Child Support (Registration and Collection) Act 1988 (the Act) and the Child Support (Assessment) Act 1989 (the Assessment Act).

2. The issue which arises in this case is whether Mrs Cagney  should be granted an extension of time to lodge an objection to either the decision of 6 December 2012 or the decision of 7 August 2015.

3. Section 80 of the Act provides that a person may lodge an objection in writing to the Child Support Agency to specified decisions made by the Child Support Agency.

4. Section 81 of the Act provides that an objection to a decision must be lodged by a person within 28 days after a notice of the decision is served on the person.

5. Section 82 of the Act provides, in cases where the lodgement period has passed, a person may send an objection along with an extension of time application requesting the Child Support Agency to treat the objection as having been duly lodged. The application must state fully and in detail the grounds of the application, including the circumstances concerning, and the reasons for, the failure by the person to lodge the objection in time.

6. Section 83 of the Act provides that the Child Support Agency must consider and either grant or refuse the application for an extension of time. If the application is granted then the person is taken to have lodged the objection in time.

7. Section 89 of the Act provides that an application may be made to the tribunal[2] for review of a decision made under section 83.

   [2] AAT first review.

8. The general starting position for extension of time applications is 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, for example, Martinsen v Secretary, Department of Family & Community Services [2004] FCA 297 per Spender J). In Hunter Valley Developments P/L v Cohen [1984] FCA 176, the Federal Court summarised the conditions to be considered before an extension of time will be granted, namely that:

   ·     there should be an acceptable explanation of the delay; and

   ·     it must be fair and equitable in the circumstances. 

9. In determining whether it is fair and equitable to extend time, the Court indicated that relevant considerations will include any prejudice to the parties and the merits of the substantive application. In Comcare v A’Hearn [1993] FCA 498, the Full Federal Court held that, while an acceptable explanation for any delay would usually be expected, this was not a necessary pre-condition to the grant of an extension of time. The tribunal takes the view that, in child support matters where one of the affected parties is the other parent, a failure to have an adequate reason for the delay would work against a finding that granting the extension of time would be fair and equitable.

Reason for delay

1. Mrs Cagney told the tribunal that the reason for the delay in lodging her objections is that she was not aware that she could receive more than three months arrears if she had special circumstances. The Child Support Agency failed to advise her of the fact. She only became aware that she might be entitled to nine months arrears in respect of each agency collection application when she contacted a lawyer about collecting outstanding amounts of child support. Mrs Cagney said that the child support case is now ended with the payer still owing her about $14,000 and the Child Support Agency was not doing anything to force him to pay the outstanding amount.

2. The tribunal notes that when Mrs Cagney applied for agency collect on 21 November 2012 she asked for arrears to be paid from 23 February 2012 being the start date of the case. When she was notified of the decision on 6 December 2012 she was advised that the arrears were to be paid from 21 August 2012. The tribunal is satisfied that the notice of December 2012 clearly indicated that arrears would only be collected from 21 August 2012. Mrs Cagney did not object to the decision and the tribunal finds that she has rested on her rights.

3. The tribunal is not satisfied that Mrs Cagney has an adequate reason for the delay in lodging an objection to the decision of 6 December 2012.

4. In respect of the agency collection application made on 20 July 2015 the file notes indicate that Mrs Cagney requested three months arrears. The tribunal finds that Mrs Cagney was advised on 7 August 2015 that her agency collection application had been accepted and that she would be paid three months arrears from 20 April 2015 to 19 July 2015. Mrs Cagney said that she was not aware that she could apply for a longer period and therefore she did not object. In the tribunal’s view it was up to the applicant to ascertain the period for which she could apply for arrears. The tribunal finds that Mrs Cagney has rested on her rights.

5. The tribunal is not satisfied that Mrs Cagney has an adequate reason for the delay in lodging an objection to the decision of 7 August 2015.

Prejudice to the other parent

1. The tribunal finds that the delay in lodging the objection to the decision of 6 December 2012 is approximately five and a half years and the delay in lodging the objection to the decision of 7 August 2015 is almost three years. The tribunal finds that such lengthy delays are likely to cause significant prejudice to the other parent.

2. Mrs Cagney said that her children’s entitlement to appropriate child support from their father should take precedence over any prejudice to him.

Merits of the substantive application

1. It is not a requirement in considering an extension application to come to a final view about the substantive application. Consideration should be given to whether the claim has sufficient merit to justify an extension of time.

2. Section 39A of the Act sets out the relevant arrears period when an agency collection application has been made. The maximum arrears period is nine months. If the application specifies an arrears period of three months or less then the application for arrears must be granted. If the period exceeds three months and there are exceptional circumstances the application for the longer period must be granted. If there are no exceptional circumstances then the maximum arrears period is three months.

3. The Child Support Guide makes the following comments in respect of exceptional circumstances (at 5.1.4):

   Whether circumstances are exceptional will depend on the facts in each particular case. The circumstances must be unusual in some way. They may be circumstances beyond the control of the payee that prevented them from applying for collection within a reasonable period. The Registrar will consider the effect of the particular circumstances on the payee and the extent to which they contributed to the payee's delay in applying for collection.

4. Mrs Cagney told the tribunal that the other parent was manipulative and threatening and would constantly put pressure on her to opt for private collection of child support.  He would cite cash flow problems with his business as a reason he did not want agency collection. He would promise to pay child support when things improved or he sold one of his properties but nothing ever eventuated from his promises.  

5. The tribunal notes that when the child support case was registered on 23 October 2012 Mrs Cagney specifically requested that the child support be collected privately. There is no evidence that she was coerced into making that decision. When she subsequently requested for the arrears to be collected from 23 February 2012 she stated that she had not been paid child support at all. She did not indicate at the time that the circumstances were unusual or exceptional.

6. Mrs Cagney opted for private collection in May 2014. When she applied for agency collection again in July 2015 she requested three months arrears on the basis the other party had not paid any child support since the previous year. She indicated at the time that there were no special circumstances.

7. The tribunal is not satisfied that there is a case for exceptional circumstances to be established in respect of either the application made on 21 November 2012 or the application made on 20 July 2015. In the tribunal’s view the fact that the other parent is not paying child support as assessed, or is acting in a manipulative way, does not constitute exceptional circumstances. The tribunal notes that correspondence sent by the other parent to Mrs Cagney’s lawyer indicates he has a belief that he paid child support in kind during the private collection periods. The tribunal also notes that there were a number of departure applications made by both parties during the period of the case indicating the parents were not in agreement about child support.  However, the tribunal is not satisfied that the conflict between the parties is of such a level that it could be considered exceptional. The tribunal does not find that the substantive applications have sufficient merit to justify granting extensions of time.

Prejudice to the general public

1. As Mrs Cagney does not have adequate reasons for delay and the substantive applications lack sufficient merit, the tribunal finds that granting the extensions of time   would prejudice the general public. The expectation is that in general, people should comply with the timeframes for objecting. Further, allowing a review to proceed where the chances of success are slim is not an appropriate use of taxpayer’s funds.

Conclusion

1. The tribunal finds that it is not proper to grant the extensions of time as Mrs Cagney does not have adequate reasons for the delays; the significant delays in lodging the objections give rise to prejudice for the other party; and the substantive applications lack sufficient merit.

DECISION

The decisions under review are affirmed.