Hirst and Child Support Registrar (Child support)

[2023] AATA 2667

Hirst and Child Support Registrar (Child support) [2023] AATA 2667 (11 July 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/MC025746

APPLICANT:  Mr Hirst

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Senior Member K Dordevic

DECISION DATE:  11 July 2023

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – refusal to grant an extension of time to object – adequate explanation for the delay – no merit – prejudice to other party and wider public – weighing all factors the extension of time was correctly refused – decision under review affirmed

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

2. Mr Hirst and [Ms A] are the parents of two children. There has been a child support assessment in place since 21 December 2020.

3. On 20 August 2022 [Ms A] applied to have the binding child support agreement (BCSA) accepted, registered and collected by Child Support. On 31 October 2022 Child Support applied the BCSA to the administrative assessment from 3 October 2022.

4. On 7 December 2022 Mr Hirst objected to that decision and on the same day he requested an extension of time in which to lodge his application. On 8 February 2023 his application for an extension of time was refused.

5. Mr Hirst lodged an application to this Tribunal on 7 March 2023, seeking a review of the decision to refuse his application for an extension of time in which to lodge his objection. Mr Hirst appeared by MS Teams audio on 21 June 2023; however, the hearing did not proceed as he had not received the relevant documents from Child Support.

6. The hearing was rescheduled upon Mr Hirst advising on 7 July 2023 that he had received a copy of the relevant documents and had time to consider these.

7. The hearing took place on 11 July 2023. Mr Hirst appeared by MS Teams audio. The Tribunal had regard to the documents supplied by Child Support (folios 1 to 449).

ISSUES

1. The relevant legislation is contained in the Child Support (Registration and Collection) Act 1988 (the Act) and the Child Support (Assessment) Act 1989 (the Assessment Act).

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

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

   ·     should he be granted an extension of time to object to the decision made on 31 October 2022?

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 a departure application. Section 81 of the Act requires that a person must lodge an objection to such a decision 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 extension of time, then grant or refuse that application and advise the person of the decision in writing. 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.

13.  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.

The reasons for the delay and whether Mr Hirst rested on his rights

14.  In his application to Child Support Mr Hirst stated that he was required to seek legal advice and was also ill, thereby missing the 28-day deadline. In his application to this Tribunal Mr Hirst referred to additional causes for delay, being work-related stress and being away for a period leading up to the Christmas holidays.[1] At hearing Mr Hirst explained that upon receiving the original decision he sought legal advice. He was also sick for a period with influenza symptoms and also gave consideration as to whether he wished to pursue the application, so risking further strain on his and [Ms A]’s co-parenting arrangement. It was all these factors that caused his delay in lodging the objection by a matter of days.

[1] At folio 7

15.  After taking into account Mr Hirst’s account and considering Child Support’s records, the Tribunal concludes that Mr Hirst did not rest on his rights and has provided a reasonable and adequate explanation for the delay in lodging his objection.

The merits of Mr Hirst’s objection

16. Part 6, Division 1A of the Assessment Act deals with consent arrangements which enable parents of a child to agree between themselves about the child support that is to be payable. Sections 88 and 89 of the Assessment Act in effect provide for an application to be made for acceptance by the Registrar of a child support agreement entered into between such parents. Section 81 of the Assessment Act defines a child support agreement as either a binding or a limited agreement.

17. Subsection 80C(1) of the Assessment Act states that a BCSA is binding on the parties if it is made in accordance with subsections 81(2) and 80C(2) of the Assessment Act, the latter which states:

For the purposes of subsection (1), an agreement is binding on the parties to the agreement if, and only if:

(a)  the agreement is in writing; and

(b)  the agreement is signed by the parties to the agreement; and

(c)  the agreement contains, in relation to each party to the agreement, a statement to the effect that the party to whom the statement relates has been provided, before the agreement was signed by him or her, as certified in an annexure to the agreement, with independent legal advice from a legal practitioner as to the following matters:

(i)  the effect of the agreement on the rights of that party;

(ii)  the advantages and disadvantages, at the time that the advice was provided, to the party of making the agreement; and

(d)  the annexure to the agreement contains a certificate signed by the person providing the independent legal advice stating that the advice was provided; and

(e) the agreement has not been terminated under section 80D; and

(f)  after the agreement is signed, either the original agreement or a copy of the agreement is given to each party.

18.  Section 92 sets out when the Registrar must accept an application for acceptance of a BCSA. Relevant to this matter, if the Registrar is satisfied that an application has been properly made, the Registrar must accept the agreement. T

19. Section 84 of the Assessment Act sets out the provisions that may be included in agreements. Subsection 84(1) provides that an agreement is only a child support agreement if it includes one or more of the kinds of provisions in paragraphs 84(1)(a)–(g) in relation to the payment of child support; for example, for payment of child support in the form of periodic amounts, otherwise than in the form of periodic amounts, as a lump sum or in the form of other payments/benefits. Subsection 84(3) provides that if an agreement contains provisions of a type not set out in subsection 84(1), those provisions do not have effect for the purpose of the Assessment Act.

20.  In this matter Mr Hirst contends that the BCSA was “never completed with the legal advice signed off by myself as I did not agree to the BCSA”.[2] In his objection application Mr Hirst declared “the BCSA was never made legally binding as I declined to sign the legal advice statement as I was not in agreement with the document. As such the agreement is neither binding or legally enforceable”.[3] The father did not advance this particular argument at hearing. Indeed, it would be difficult for him to do so, given that his (current) lawyer relies on the terms of the agreement as dictating his child support liability.[4]

[2] At folio 7

[3] At folio 228

[4] At folios 35 and 36 in correspondence dated 15 November 2022

21.  At hearing Mr Hirst confirmed that it was his signature that appeared on pages 1 to 13 of the document entitled “Binding Child Support Agreement”[5]. In respect of the Section 80C Certificate at page 10 of the agreement[6] the father confirmed that he was represented by [Mr B], lawyer. He went on to state that he signed the agreement prior to the receipt of legal advice. The reason for that was that he was applying for finance and needed the BCSA to further his finance application. He only received the legal advice as to the advantages and disadvantages of the agreement after the agreement was entered into. In particular, he does not recall “ever” having a conversation with [Mr B] regarding the BCSA and specifically the effect on his rights, and its advantages and disadvantages. However, he conceded that he did receive written advice from [Mr B] addressing these issues. Nevertheless, he does not agree with the notation to the Certificate that states that he understood the nature and effect of the document and the risks in signing it.[7] He simply did not have a proper understanding of the implications of the BCSA, and in particular that he would be liable to pay child support but that [Ms A] would be “exempt” from paying him child support. He went on to explain that some weeks prior to receiving the written legal advice he was recovering from intensive cancer treatment and his capacity to understand the implications of the BCSA was significantly impacted: he was “not over the advice” and the legal advice he received was “unclear”. He has since lodged a complaint with [Mr B]’s practice and no longer retains his services.

[5] At folios 19 to 34 of the Child Support documents

[6] At folio 30

[7] At folio 30

22. Child Support accepts that the BCSA meets the legislative requirements for registration as outlined in paragraphs 80C(2)(a) to (f) of the Assessment Act outlined above. In the Tribunal’s view there would be no basis for refusing to accept the agreement. Specifically, the Tribunal finds that the agreement was signed by [Mr B], lawyer, who certified that he provided legal advice to Mr Hirst in accordance with paragraph 80C(2)(c) of the Assessment Act, and that Mr Hirst signed that page.[8]

[8] At folio 30

23. In relation to an application to register a BCSA, the Child Support Guide indicates that an application can be made verbally or in writing. Subsection 34B(2) of the Assessment Act states that the child support period starts on the day on which the application was made to the Registrar for acceptance of the agreement, unless the application is made within 28 days after the day on which the agreement was signed. The Tribunal accepts that [Ms A] sought to have the BCSA registered on 3 October 2022.

24. Section 80D of the Assessment Act provides that there are only three ways in which a BCSA can be terminated. There is no evidence before the Tribunal to indicate that the BCSA has been terminated.

25.  It is for all the above reasons that the Tribunal finds that Mr Hirst’s objection has no merit.

Prejudice to [Ms A] and the wider public

26.  The Tribunal does consider that there would be significant prejudice to Ms Hirst if an extension of time was granted. This is largely because Mr Hirst’s application has no apparent merit.   

27.  The Tribunal is satisfied that there would be prejudice to the wider public if the extension of time were granted, as it may lead to unnecessary administrative costs and would be contrary to community expectations regarding the finality and certainty of administrative decision-making.

Whether it would be proper to grant an extension of time

28.  The Tribunal considers that in the circumstances of this case it would not be proper to grant Mr Hirst an extension of time.

Conclusion

29.  Mr Hirst requested a review out of time. Whilst Mr Hirst has provided an adequate explanation for his delay in lodging his extension of time application, there is no apparent merit to his case. In allowing an extension there would be considerable prejudice to [Ms A] and the wider public. Weighing up all the relevant factors, the Tribunal is not persuaded that it is fair and equitable to extend the permissible time in which he can lodge his application.  In the circumstances, the Tribunal has decided to refuse to grant an extension of time to Mr Hirst.

DECISION

The decision under review is affirmed.