Hayward and Child Support Registrar and Anor

[2004] AATA 1031

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1031

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2004/251

GENERAL ADMINISTRATIVE DIVISION		)
Re		MICHAEL HAYWARD

Applicant

And  CHILD SUPPORT REGISTRAR

Respondent

And             MARINDA HAYWARD

Party Joined

DECISION

Tribunal  Ms MJ Carstairs, Member

Date 1 October 2004

Place Brisbane

Decision The reviewable decision dated 23 March 2004 to grant an extension of time is affirmed.

..................[Sgd].......................

MJ Carstairs
  Member          

CATCHWORDS

CHILD SUPPORT – extension of time to lodge objection in relation to child support payments

Child Support Registration and Collection Act 1988 s3, 71D, 84A, 89, 91

Hunter River Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42

REASONS FOR DECISION

1 October 2004 Ms MJ Carstairs, Member

1.      This is an application by Michael Hayward for review of a decision made by the Child Support Registrar on 23 March 2004 to grant an extension of time to Marinda Hayward to lodge objections about decisions made about child support for Marinda and Michael’s child, Matthew Hayward. 

2.      At the hearing Mr Hayward represented himself, as did Ms Hayward who was joined as a party by order of the Tribunal dated 9 July 2004.  The respondent was represented by its advocate Ms P Aleema.

3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975, numbered T1 – T41, an exhibit marked A1, and the respondent’s statement of facts and contentions dated 6 September 2004.

BACKGROUND

4.      The factual background is set out in the respondent’s statement of facts and contentions.  The following is summarised from there.  A child support assessment is in place in respect of Matthew, and this is based upon substantially equally shared care between Mr Hayward and Ms Hayward.  As a result of this, Mr Hayward’s exempt income level for child support is increased and his child support percentage is reduced.  Mr Hayward’s child support payments are collected by the Child Support Agency and then disbursed to Ms Hayward.  Certain payments that a payer incurs to third parties (for example pre-school fees) may be credited against the payer’s child support (referred to as non-agency payments), but only where the Registrar is satisfied that both parties intended that these would be paid in satisfaction of the payer’s child support liability. 

5.      Several decisions have been made by or on behalf of the Registrar where non-agency payments have been credited against Mr Hayward’s child support liability.   In one decision made by the Child Support Agency, the crediting of non-agency payments was refused (T7).  Mr Hayward’s appeal about that decision was unsuccessful (T12).

6.      On 10 December 2003 (T32) Ms Hayward spoke to a Child Support Agency officer.  In that conversation, aspects of requesting a review of the decisions about crediting the pre-school fees against Mr Hayward’s child support liability were explained to Ms Hayward.  On 11 December 2003 (T33) Ms Hayward wrote requesting review of the decision to credit non-agency payments and asked that time be extended for her to do so.  On 9 February 2004 (T11) she again sought an extension of time to object to the decisions.  As a result of her second request the delegate made a favourable decision and granted the extension of time (T13).

7.      Ms Hayward had set out in T11 that she sought an extension to object to four decisions about non-agency payments.  The matter before the Tribunal is limited to one non-agency payment credited to Mr Hayward by a decision dated 21 May 2003 (T29, T30).   The extension of time is not being pursued for the other decisions referred to in T11 for the following reasons: one decision (T7, referred to above in para 5 of these reasons) had been in Ms Hayward’s favour; one decision did not require an extension of time as the objection was made within the time limit; and, at the hearing, Ms Hayward withdrew her application in regard to the third decision, one made on 6 March 2003 to credit $144 towards Mr Hayward’s child support liability.  In relation to this decision Ms Hayward now agreed that it referred to pre-school fees paid in 2003 when Mr Hayward and Ms Hayward had a different pattern of shared care.

CONSIDERATION OF THE ISSUES

8.      Under the Child Support Registration and Collection Act 1988 (the Act) decisions can be made to allow or refuse to credit non-agency payments. Review may be sought within 28 days: s84A of the Act. Section 89 provides that even though the 28 days has passed a person may apply to have the time extended, and s89(2) requires that the applicant must state full and detailed grounds for the application, referring to the reasons for the failure to lodge within time. Section 91 requires the Registrar to make a decision within sixty days, and provides for review of that decision by the Tribunal: s91(5).

9.      The relevant principles to be applied in an application to extend time have been considered in a number of Federal Court decisions and decisions of this Tribunal.  The respondent submitted, and the Tribunal agrees, that the principles are set out in Hunter River Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42. The principles were set out in the respondent’s statement of facts and contentions (paragraph 25) and the Tribunal had regard to those principles.

10.     Ms Aleema acknowledged that the advice of child support officers to Ms Hayward in May 2003 when she telephoned about the decisions made to credit the non-agency payments would have left Ms Hayward without much hope that her objections could succeed.   Ms Aleema submitted that Ms Hayward had not rested on her rights once she knew that the decisions made by the Child Support Agency to credit non-agency payment might not be correct.  She said that the practical effect of now refusing her request for extension would be to prevent the Child Support Agency reconsidering its decisions and would further preclude both parties from appealing to a Court under the Act, as this appeal right is limited to cases where the Registrar has considered an objection. 

11. With reference to the possible merits of the substantial application, Ms Aleema pointed out that the Registrar’s powers under s71D of the Act are discretionary and noted the decision made in December 2003 to refuse Mr Hayward’s application to credit a non-agency payment. She said that while she did not wish to make submissions for or against either of Mr or Ms Hayward, one object of the Act set out in s3(1) was to ensure that children receive from their parents the financial support that the parents are liable to provide. She submitted that justice required that the Child Support Agency be able to correct what appeared to be an incorrect decision.

12.     Mr Hayward submitted that the grant of an extension of time would unsettle the determinations that have been made and he pointed out that the original decision-maker had noted that he carefully observed his child support responsibilities and was in credit.  He said that the original decision-maker had taken account of the fact that if Ms Hayward were granted time to lodge an objection and the objection resulted in a decision in her favour, Mr Hayward would be liable to pay an amount of arrears.  The original decision-maker found that granting an extension of time to Ms Hayward would create substantial hardship to Mr Hayward.  Mr Hayward submitted further that he has suffered hardship arising from the stress and the demands upon his time engendered by Ms Hayward’s appeal.

13.     Ms Hayward acknowledged that her application for an extension of time has caused stress and hardship to Mr Hayward.  She referred to her telephone call to the Child Support Agency in May 2003 to ask about the non-agency payments being credited and said that she had telephoned when she received the decision as she prefers to deal with matters directly with the agencies officers by telephone.  She said that she relied on the correctness of the advice given to her then (T30) and it was not until she was given other advice by the Child Support Agency in December 2003 (T32) that she learned that she could object to the decisions.   

14.     The Tribunal applied the principles set out by the Federal Court in Hunter River Valley Developments.  Looking at these in turn, the Tribunal was satisfied that the applicant has provided a reasonable explanation for her delay.  The Tribunal accepts the submission that Ms Hayward was misled by the discussions by telephone with the Child Support Agency when she received the letter about the decision for which she seeks the extension of time.  From the file note of the telephone conversation it appears that she was assured that the Child Support Agency’s treatment of the non-agency payment was correct and the Tribunal accepts that this discouraged her from taking the matter further at that time.   The Tribunal accepts the submission of the respondent that their advice to her was incorrect.

15.     In regard to whether the respondent or Mr Hayward will be unduly prejudiced if the extension of time is granted, the Tribunal took into account that Mr Hayward potentially may be adversely affected.  However the Tribunal accepts the respondent’s submission that there have been inconsistent decisions made by the Child Support Agency on essentially identical matters in this case, and that the decision which Ms Hayward seeks to challenge appears to have applied the legislation and policy incorrectly.  The Tribunal accepts the respondent’s submission that allowing the extension of time ensures that both Mr Hayward and Ms Hayward ultimately have access to a review by the Child Support Registrar and to the Family Court of Australia on the substantive matter.

16.     The Tribunal accepts that the merits of a matter need not be looked at in a substantive way for purposes of an extension of time application but accepts that on the face of the decisions made there is a clear case to have the decision to credit the non-agency payment looked at again where there was no agreement between the parties that these payments can be credited that way.

17.     The Tribunal was satisfied that the explanation for the delay is adequate and that Ms Hayward did not rest on her rights.  There is an arguable case and Ms Hayward should have the opportunity of putting it.  In the interest of fairness the Child Support Registrar should be given the opportunity of making an appropriate decision taking into account both Ms Hayward’s objections and any material that Mr Hayward submits in relation to the decision.

18.     For these reasons the Tribunal affirms the decision under review, that is, the extension of time to lodge an objection to the Registrar’s decision should be granted to Ms Hayward.   The time is extended to 9 February 2004.

DECISION

19.     The reviewable decision dated 23 March 2004 to grant an extension of time is affirmed.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Ms MJ Carstairs, Member

Signed:         Denise Burton
  Administrative Assistant

Date/s of Hearing  22 September 2004 (Lismore)
Date of Decision  1 October 2004 (Brisbane)
The Applicant appeared in person
The Party Joined appeared in person       
For the Respondent                  Ms P Aleema