Haber and Child Support Registrar (Child support)

[2020] AATA 1406

Haber and Child Support Registrar (Child support) [2020] AATA 1406 (20 April 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/PC018244

APPLICANT:  Ms Haber

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member W Budiselik

DECISION DATE:  20 April 2020

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that an extension of time is to be granted to the applicant so she can object to the Department’s decisions made on 24 December 2018.

CATCHWORDS

CHILD SUPPORT – refusal to grant an extension of time to object – satisfactory explanation for the delay – arguable merit – minimal prejudice to other party – weighing all factors the extension of time should be allowed – 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. Ms Haber (the mother) and [Mr A] (the father) are the parents of three children (born on 5 December 1998, 25 May 2001 and 20 March 2006, respectively). A child support case commenced on 18 February 2015. The father pays the mother child support via Agency collect in accordance with a binding child support agreement entered into by the parents on 21 June 2016.

2. On 24 December 2018, the Department of Human Services – Child Support (the Department) provided the applicant with correspondence which a) set out it had accepted her binding child support agreement and b) provided particulars of forthcoming child support assessments.

3. The tribunal notes that previously, for example on 26 July 2017, the Department provided correspondence to the applicant advising her it had accepted her binding child support agreement made on 1 July 2016.

4. The correspondence of 24 December 2018 set out the applicant’s review rights including that the applicant could ask for a review of the Department’s decisions within 28 days of receiving the correspondence.

5. On 29 November 2019, the applicant lodged an objection to the ‘contents of the Department’s correspondence’ dated 24 December 2018. At the same time, the applicant sought an extension of time within which to lodge her objection application.

6. On 20 December 2019, the Department refused the applicant an extension of time within which to lodge her objection.

7. On 17 January 2020, the applicant lodged an application for a review of the Department’s decision to refuse an extension of time within which to lodge her objection. On 20 April 2020, the tribunal conducted a hearing into the application. The applicant participated in the hearing over the phone. She was represented by [Ms B] from [Law firm]. Prior to the hearing the Department provided the tribunal with a bundle of documents taken from its files (folioed 1–116).

ISSUES

1. The statutory provisions relevant to this review are contained in 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 or not to grant the applicant’s request for an extension of time to lodge an objection to the decisions of 24 December 2018.

CONSIDERATION

1. Part VII of the Act is about the procedures related to internal (i.e. within the Department) objections made for certain decisions. Section 80 of the Act provides that a person may lodge with the Registrar an objection in writing to particular decisions. Section 81 is about time limits on lodging objections and provides that a person has 28 days in which to lodge an objection after a notice of the decision is served on them. Section 82 provides for a person to apply for an extension of time to lodge an objection after the 28-day period has elapsed. Section 83 requires the Department to either grant or refuse an extension of time application and serve notice in writing of the decision. If the Department refuses the extension of time application, the person applying may apply to the tribunal for review (item 1 of the table in subsection 89(1) of the Act).

2. Given the applicant lodged her objection more than 28 days after she received relevant correspondence, the tribunal is satisfied an extension of time is required for the objection to be considered.

3. The tribunal is required to consider whether or not it is reasonable or proper for an extension of time to be granted to the applicant to lodge her objection to the decision.

4. A consideration of relevant authorities establishes that when considering matters relating to 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 they will experience in providing evidence as a result of the delay;

   ·         any prejudice to the general public; and

   ·         fairness in granting an extension of time.

Reasons for the delay

1. The tribunal notes in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, the High Court in dealing with an extension of time 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 a particular case, may indicate that justice is served by the general rule being overturned.

2. The Department’s correspondence to the applicant dated 24 December 2018 set out:

   You can ask for a review of the decision (we call this an objection) within 28 days from the date you receive this letter. For more information about how to object go to our website humanservices.gov.au/reviewsandappeals.

16.Four pieces of correspondence were sent to the applicant by the Department on 24 December 2018. The applicant provided the correspondence she received. Information about the particulars of the child support assessment is blacked out (see folios 40 and 42). This made the correspondence difficult to understand because the periods to which the assessments apply are not shown. A file note dated 15 January 2020, records the applicant’s representative advised the Department part of the notice was redacted. The file note does not record a response to the information about the redaction.

17.The other correspondence provided to the applicant on 24 December 2018 (see folios 39 and 41) is apparently contradictory.

18.The tribunal notes the applicant did not argue she had read the correspondence. She said she relied on her knowledge that the child support agreement entered into with the father had been accepted, and this agreement dictated the amount of payment she would receive. The tribunal accepted the applicant’s submissions that, if she had read the Department’s correspondence, there was nothing in it which would have alerted her to the fact that the Department was no longer collecting child support from the father in accordance with the previously accepted child care agreement.

19.The tribunal notes that after the applicant became aware of the changed collection in August 2019, she contacted the Department on 5 September 2019 and was provided with advice about the new way her payment was calculated. The applicant then went overseas, and her legal representative attempted to pursue the issue with the Department. However, because the legal representative was not listed as her representative there was an additional delay to the applicant’s objection lodgement.

20.It was also evident from the hearing that the decision being objected to (expressed by the applicant as the correspondence provided on 24 December 2018) and interpreted by the Department as the Department’s decision to accept the binding agreement did not make sense to the applicant, given the binding agreement had previously been accepted.

1. The tribunal is satisfied in this case there are good reasons why the applicant did not lodge an objection to the Department’s decision within 28 days of the receipt of correspondence sent to her on 24 December 2018.

Merits of the application

1. In considering the merits of the case, it is not appropriate for the tribunal to form a conclusive view in extension of time proceedings. Rather, the tribunal needs to consider whether the applicant has an arguable case.

2. The reason why the collection rate changed after the child born in 2001 turned 18 years of age was because of an amendment to the Assessment Act which took effect on 1 July 2018 (section 86A).

3. The applicant’s legal representative explained to the tribunal that her firm had drawn up the binding child support agreement and she was satisfied she could argue that in its case section 86A of the Assessment Act should not apply. The applicant’s representative explained she understood the purpose of the section and the tribunal concluded she would make an arguable case for a reconsideration of its application.

4. The tribunal also noted in the hearing that given there were three children identified in the agreement, it is possible section 86A of the Assessment Act has not been correctly applied.

5. The tribunal is satisfied based on the applicant’s representative’s argument and on its own analysis that a case can be made which will require the Department to consider whether section 86A of the Assessment Act should be applied and whether it has been correctly applied in this case.

Prejudice to the other party and the wider public

1. The tribunal did not identify prejudice to the father or to the wider public if the extension of time was granted.

2. The terms of the agreement made in 2016 are clear and it is evident that had the legislation not been amended on 1 July 2018, which brought about a change to the way agreements are treated and if the father had complied with the agreement he would have paid an agreed amount of child support of $450 per week until 20 March 2024 (the effect of the Department’s decision is that the child support liability is halved from 25 May 2019 to 20 March 2024).

3. The applicant’s representative argued there was a potential benefit to the community if the applicant’s objection was heard, because it would test the application of a legislative provision which has not yet been tested.

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

1. The Department notifies parties that they can lodge an objection to a decision and that the parties have 28 days within which to lodge the objection. In this case when it provided this notification it provided the applicant with unclear information about the decision and the applicant had good reasons for believing the information provided to her was not going to interfere with the child support agreement already accepted by the Department.

2. The tribunal concluded there were reasons why an exception to the prescribed time limit should be made in this case. It did not conclude it would be unfair to others to grant the applicant an extension of time so that her objection should be heard.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that an extension of time is to be granted to the applicant so she can object to the Department’s decisions made on 24 December 2018.