Ethington and Child Support Registrar (Child support)

[2021] AATA 3698

Ethington and Child Support Registrar (Child support) [2021] AATA 3698 (21 July 2021)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2021/BC021610

APPLICANT:  Ms Ethington

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                21 July 2021

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that Ms Ethington is granted an extension of time in which to lodge her objection to a decision made on 6 July 2010.

CATCHWORDS

CHILD SUPPORT – refusal to grant an extension of time to object – acceptance of application for child support assessment - 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 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.

STATEMENT OF REASONS

1. This review concerns whether an extension of time should be granted to allow an objection to a decision made by Services Australia ‒ Child Support.

2. Ms Ethington (the mother) and [Mr A] (the father) are parents of two children. On 6 July 2010 Child Support registered the child support assessment from 10 June 2010.  

3. On 25 April 2021 the mother objected to the decision to register the administrative assessment from 10 June 2010 and not before. On the same day the mother requested an extension of time in which to lodge her application. On 12 May 2021 her application for an extension of time was refused.

4. The mother lodged an application to this tribunal on 12 May 2021. The mother elected not to give evidence. Her request that her father, Mr Ethington, make written and oral submissions on her behalf was approved. Mr Ethington attended a hearing on 21 July 2021 by MS Teams audio. His wife, Mrs Ethington, was also present to assist Mr Ethington’s hearing. In addition to his oral evidence, the tribunal had regard to the documents supplied by Child Support (folios 1 to 360) and by Mr Ethington (folios A1 to A5).

ISSUES

1. The relevant legislation is contained in the Child Support (Registration and Collection) Act 1988 (the Act).

2. The issues to be decided by the tribunal are:

   ·     whether the mother’s objection was lodged outside the statutory time frame; and if so

   ·     should she be granted an extension of time to object to the 6 July 2010 decision?

CONSIDERATION

1. Subsection 80(1) of the Act provides that a party to a child support assessment must lodge an objection in writing to various decisions, including a decision relating to the particulars of the assessment. Section 81 of the Act requires that a person must lodge an objection within 28 days after a notice of the decision is served on them.

2. Where the period for lodgement has ended, a person may send their objection to the Registrar along with an application requesting that the objection be treated as if it was lodged within the allowed time (section 82 of the Act). Section 83 of the Act provides that the Registrar must consider the application for an extension of time, then grant or refuse that application. Section 89 of the Act allows the person who applied for the extension of time to apply to this tribunal for a review of that decision.

3. The tribunal considered the guiding principles for the exercise of the discretion to allow an extension of time as set out in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176. 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 generally applications commenced outside of the prescribed time limit will not be considered. A consideration of other relevant authorities establishes that when considering whether to allow an extension of time the tribunal should consider and balance a range of factors. These factors are a guide and are not exhaustive, but generally include:

   ·     the reasons for the delay and whether the applicant rested on their rights;

   ·     the merits of the substantive application;

   ·     any prejudice to the other party including any difficulties that they will experience in providing evidence as a result of the delay;

   ·     wider prejudice to the general public;

   ·     fairness in granting an extension of time as between the applicant and other persons in a similar position; and

   ·     whether it is proper to grant the extension of time.

4. The tribunal makes the following findings in relation to this matter:

   i.On 9 July 2008 the mother wrote to Child Support advising that she was a resident of [Country 1] and asking that the case be registered. On 15 July 2008 Child Support responded, advising that she was required to lodge her application with the relevant [Country 1] authorities;

   ii.On 24 February 2009 the mother replied in writing stating that she had contacted the relevant authority and, due to the rules and regulations of the [Country 1] authorities, asked that Child Support liaise directly with the authority;

   iii.On 20 November 2009 Child Support responded in writing and stated that the legislation required that, for parents who reside in [Country 1], the application must be received from the [Country 1] authorities;

   iv.On 4 December 2009, by judgement [number] of [a specified court], [Country 1] (at folios 80 to 84 and translated at folios 99 to 111) the father was ordered to pay €500 for each child per month and €400 per month as a “compensatory pension” (for a three-year period only);

   v.On 25 March 2010 the [Country 1] authority authored a notice (at folios 70 to 74 and translated at folios 359 to 360) stating that the father was liable to pay the mother €3,903.23 in child support from 9 December 2009 to 31 March 2010;

   vi.On 10 June 2010 Child Support received the notice from the relevant [Country 1] authority, requesting that the case be registered;

   vii.On 6 July 2010 Child Support registered the ongoing liability arising under the court orders from 10 June 2010 and not before;

   viii.On 14 July 2010 the mother wrote to Child Support and asked for advice as to how she could enforce the court order from 4 December 2009, when the court order was made. Child Support responded on 4 August 2010 advising that the court order can only be registered from the date it was received. It went on to advise that arrears could be collected if a court-certified statement of arrears was received;

   ix.On 2 September 2010 the mother wrote again and advised that she has been advised by the [Country 1] authorities that the certificate requested by Child Support does not exist (at folio 25). Child Support asserts that this correspondence was never received. The mother also contacted Child Support about the collection of arrears and ongoing payments on 23 December 2010, 15 May 2011 and 9 June 2011.

   x.On 19 February 2021 the mother wrote to Child Support seeking collection of child support and spousal maintenance for the period 4 December 2009 to 9 June 2010; and

   xi.On 25 April 2021 the mother lodged an objection to the decision made on 6 July 2010. 

The reasons for the delay and whether the mother rested on her rights

1. There is no evidence to suggest that the mother suffered an illness or natural disaster that prevented her from lodging a timely objection to the decision. Mr Ethington explained at hearing that the mother did object to the decision on at least four occasions, as outlined in her correspondence to Child Support from July 2010 to June 2011. He too attempted to contact Child Support, but they refused to speak to him. The mother called Child Support directly on many occasions to raise the issue of arrears as well as other issues. It was only after they lodged a complaint with a Commonwealth minister in February 2021 were they advised to lodge an objection to the original decision. They did so immediately. Mr Ethington confirmed that the letter sent to the mother on 6 July 2010 outlined how a person can object to the decision; he cannot recall if he had a look at the website for an actual form.

2. The tribunal is satisfied that the mother emailed Child Support on 14 July 2010 and advised that there were apparent errors in the registration of the liability, including the failure to register the arrears. She asked that the record be amended to correct these errors. In the tribunal’s view, an experienced Child Support case officer would have recognised this as an objection to the original decision, though not in the approved form. The mother again raised her objections to the decision in the email dated 2 September 2010. Child Support asserts that this was never received, though it is apparent that it was sent to the correct address.

3. The record suggests that the mother or her representative then contacted Child Support annually between 2012 until she returned to Australia in 2018, and that these contacts were primarily concerned with the collection of the child support liability. The mother then lodged a complaint with a Commonwealth minister in February 2021.

4. On balance, the tribunal is satisfied that the mother did have adequate reasons for the delay in lodging her objection and did not rest on her rights.

The merits of the mother’s objection

1. On 6 July 2010 Child Support registered the ongoing liability arising under the court orders from 10 June 2010. The mother’s objection is concerned with the refusal to register an amount of arrears that had accrued under the [Country 1] court order.

2. Subsection 25(1A) of the Act states:

   (1A) If:

   (a)  the payee is a resident of a reciprocating jurisdiction; and

   (b)  the registrable maintenance liability is a registrable overseas maintenance liability that arises under an order made by, or registered in, a court of the reciprocating jurisdiction;

   an application for the registration of the liability:

   (c)  made by the payee and given to the Registrar by an overseas authority of the reciprocating jurisdiction; or

(d)  made by such an overseas authority on behalf of the payee;

is taken to be an application under subsection (1) if the Registrar is satisfied that it is appropriate to do so.

1. Section 18A of the Act states that a liability includes arrears:

   (1)  A liability is a registrable overseas maintenance liability if it is:

   (a) a liability of a parent or step-parent of a child to pay a periodic amount for the maintenance of the child; and

   (b) an overseas maintenance liability.

   …

(4) A liability is a registrable overseas maintenance liability if it is an amount that is in arrears under a liability mentioned in subsection (1) or (2) or paragraph (3)(a).

1. The tribunal concludes that if granted an extension of time in which to lodge her objection, it is likely that Child Support would determine that the mother’s objection has merit.

Prejudice to [Mr A] and the wider public

1. The tribunal took into account that there would be prejudice to the father if an extension of time in which to lodge an objection is granted. Child Support determined that if the mother’s application is successful, a relatively modest debt would be raised ($4,000). The mother submits that the actual arrears would be in the vicinity of $11,500. The tribunal’s own calculations reveal that the mother’s calculation of arrears being in the vicinity of $11,500 AUD is correct. Clearly, this is a significant sum of money. However, in a context where the father is already in arrears of more than $192,300 the tribunal is not satisfied that collection of his liability during the period 9 December 2009 to 9 June 2010 would cause him significant hardship.

2. The tribunal is not persuaded that there is significant prejudice to the wider public should the mother’s application be granted.

Fairness in granting an extension of time as between the applicant and other persons in a similar position

1. On balance, the tribunal finds that it would be fair to others to grant the mother an extension of time. This is primarily because her objection has merit and she did not rest on her rights.

Whether it would be proper to grant an extension of time

1. The tribunal considers that in the circumstances of this case it would be proper to grant the mother an extension of time to object to Child Support’s decision of 6 July 2010.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that Ms Ethington is granted an extension of time in which to lodge her objection to a decision made on 6 July 2010.