Isaacson and Child Support Registrar (Child support)

[2020] AATA 2042

Isaacson and Child Support Registrar (Child support) [2020] AATA 2042 (23 April 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/MC018269

APPLICANT:  Mr Isaacson

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member J Longo

DECISION DATE:  23 April 2020

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the time to object to the decision of the Child Support Registrar is extended.

CATCHWORDS

CHILD SUPPORT – refusal to grant an extension of time to object – reasonable explanation for the delay in lodging the objection late – some prospects of objection succeeding and therefore there is arguable merit – no prejudice to the other parent – the extension of time should have been 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 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 19 September 2019, the Child Support Registrar (the Registrar) made a decision to collect ongoing child support payments from Mr Isaacson from 26 June 2019 as well as the outstanding child support for the period of 26 June 2019 to 15 September 2019.

2. On 19 December 2019, Mr Isaacson objected to the decision. Mr Isaacson indicated in his correspondence that he wished for the decision to be reviewed and provided reasons for not lodging within 28 days of receiving the original decision.

3. A delegate of the Registrar refused the application for an extension of time on 7 January 2020 and on 22 January 2020 Mr Isaacson applied to the Administrative Appeals Tribunal (the tribunal) for review of this decision. On 23 April 2020, the tribunal spoke to Mr Isaacson who gave sworn evidence.

CONSIDERATION

1. The law relating to a person’s right to seek review of a decision of the Registrar is contained in the Child Support (Registration and Collection) Act 1988 (the Act). Section 81 of the Act requires that a person must lodge an objection to a decision of the Registrar within 28 days after a notice of the decision is served on them.

2. Where the period for lodgement has ended, the person may send the objection to the Registrar along with an application requesting that the objection be treated as if it was duly lodged, that is, that it was lodged within the allowed time (section 82 of the Act). Section 83 then provides that the Registrar must consider the application for extension of time, 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.

3. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, the High Court, in dealing with an extension of time case 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 apply, and depending on the facts and circumstances of an individual case, may indicate that justice is served by the general rule being overruled.

4. In making its decision, the tribunal has considered the guiding principles for the exercise of a discretion to allow an extension of time as set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (Hunter Valley Developments). 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 in general, applications or proceedings commenced outside of a prescribed time limit will not be considered. The Court also said that there must be an acceptable explanation for the delay and that it must be fair and equitable in the circumstances to extend time.

5. The Administrative Appeals Tribunal has applied the principles set out in the Hunter Valley Developments case in Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42 (Mulheron). The authorities, Hunter Valley Developments and Mulheron, establish that when considering whether to exercise the discretion to allow an extension of time, a decision-maker should consider and balance a range of factors. The tribunal has taken these factors into account in determining whether the extension of time should be granted.

6. Mr Isaacson stated that he sought a review of the decision on 30 September 2019. He stated that he did not receive the decision on 19 September 2019 but he spoke to child support about the decision and was told about the decision. He stated that he sent an email with evidence for child support to consider. When he queried this information, he was told that the email address was incorrect. Mr Isaacson stated that he sent this information again on 1 November 2019 and then again on 19 December 2019 with an objection form.

10.It is clear, based on the papers provided by the Registrar and Mr Isaacson’s oral evidence, that Mr Isaacson sought review of the decision on several occasions. But for the email having the wrong address, Mr Isaacson’s first correspondence, attached to the email on 1 November 2019, would have been within the 28-day time limit for objecting to the decision. Further, child support did not accept Mr Isaacson’s objection on 1 November 2019, even though the email clearly stated that he was objecting to the decision. His objection was accepted on 19 December 2019. The tribunal notes that Mr Isaacson did not delay in seeking review of the decision and it is clear that he made the decision maker aware that he disagreed with the decision. The request would have been received within the time limit if Mr Isaacson had not sent the email to the incorrect email address. The tribunal accepts that Mr Isaacson had a reasonable excuse for the delay in his application for review.

11.The tribunal also considered the merits of Mr Isaacson’s objection to the decision. Mr Isaacson has stated that the decision made by the Registrar’s delegate did not take into account that he was paying for other items in lieu of child support and therefore had no unpaid amounts. While a substantive review of the decision has not been conducted, the tribunal has considered whether there was an arguable case in the circumstances of determining whether to extend the time to lodge an objection. The issues raised by Mr Isaacson have merit, in that there is an arguable case. The tribunal notes that the decision was made by the Registrar’s delegate without Mr Isaacson providing this information. The tribunal notes that the information relevant to this matter is readily available and therefore there would be no prejudice if an extension of time were granted.

12.The tribunal considered whether it would be fair or equitable in the circumstances to extend the time to lodge an objection. As Mr Isaacson made several attempts to request an objection, the tribunal is persuaded that in the present matter, it would be fair to grant an extension. In the circumstances, the tribunal has decided to extend the time to lodge an objection.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the time to object to the decision of the Child Support Registrar is extended.