Greaves and Child Support Registrar (Child support)

[2024] AATA 1877

Greaves and Child Support Registrar (Child support) [2024] AATA 1877 (22 April 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/BC027300

APPLICANT:  Ms Greaves

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member S Letch

DECISION DATE:  22 April 2024

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Greaves is to be given an extension of time to object to the decision of 16 November 2023.

CATCHWORDS

CHILD SUPPORT – application for extension of time – very short delay – arguable case– extension of time granted – decision under review set aside

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 16 November 2023, Child Support made a decision to refuse to accept an estimate election made by Ms Greaves in respect of the 2023–24 financial year.  

2. Ms Greaves objected to the decision on 20 December 2023, just outside the 28-day period to object.

3. On 3 January 2024, Child Support refused to grant Ms Greaves an extension of time in which to make her objection to the decision of 16 November 2023.

4. On 5 January 2024, Ms Greaves applied to the Tribunal for further review. Ms Greaves, and her representative, [Representative A] of [Agency 1], participated in the Tribunal’s hearing by conference telephone.

CONSIDERATION

Background and legislative framework

1. A parent may object to a decision made by Child Support 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 section 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 (Gallo v Dawson) 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 Pty Ltd v Cohen (1984) 3 FCR 344, the Tribunal proposes to consider the matters identified in Gallo v Dawson under the following headings:

   ·      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. [Representative A] told the Tribunal he and Ms Greaves had been in continuous contact with Child Support. They followed advice from Child Support. It was only later that Child Support mentioned the 28-day time limit.

2. The delay here is very short. I am satisfied that Ms Greaves and [Representative A] made it known on a number of occasions that Ms Greaves disagreed with the assessment. I do not consider the short delay a weighty factor against giving an extension of time.

Merits of the objection

1. It is not the purpose of exercise for me to form a concluded view on the merits of substantive decision.

2. However, I am not convinced that the matter is as “black and white” as Child Support suggests. As Ms Greaves observes, the relevant test is based on income over a financial year, not “current income”. I am not at all convinced that the elements of section 63AA of the Child Support (Assessment) Act 1989 giving the Registrar the discretion to refuse an estimate election are satisfied in the circumstances of this case.

3. I do not consider that Ms Greaves has an inarguable case.

Potential prejudice to the other party

1. The delay here is very short, and the possible prejudice to the other parent is not a weighty factor.

Public interest considerations

1. The statute provides for a 28-day period for the lodgement of objections so that parents (and Child Support) 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 Child Support 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. This case involves a very short delay. I am not satisfied Ms Greaves has an inarguable case in relation to the estimate refusal by Child Support.

2. I consider the interests of justice require that Ms Greaves be given an extension of time to object to the original decision of 16 November 2023.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Greaves is to be given an extension of time to object to the decision of 16 November 2023.