Knapp and Child Support Registrar (Child support)

[2023] AATA 2937

Knapp and Child Support Registrar (Child support) [2023] AATA 2937 (18 August 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/MC025961

APPLICANT:  Ms Knapp

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Senior Member K Dordevic

DECISION DATE:  18 August 2023

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 significant prejudice to the other parent or wider public - 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.

1. The decision of the Tribunal and the reasons for the decision were delivered orally on 18 August 2023.

2. The following paragraphs are the reasons for the Tribunal’s decision.

Reasons for decision

1. This review concerns whether an extension of time should be granted to allow Ms Knapp to lodge an objection to a decision made by Services Australia ‒ Child Support (Child Support).

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

3. On 14 July 2022 [Mr A] lodged a departure application on the basis of Ms Knapp’s earning capacity. On 17 September 2022 Child Support determined that for the period 1 July 2022 to 30 June 2024 Ms Knapp’s adjusted taxable income is to be varied to $91,312, finding that this was the average income for an [occupation 1].

4. On 8 March 2023 Ms Knapp objected to that decision and on the same day she requested an extension of time in which to lodge her application. On 24 March 2023 her application for an extension of time was refused.

5. Ms Knapp lodged an application to this Tribunal on 18 April 2023, seeking a review of the decision to refuse her application for an extension of time in which to lodge her objection. She appeared by MS Teams audio on 18 August 2023. The Tribunal had regard to the documents supplied by Child Support (folios 1 to 245).

ISSUES

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

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

• whether Ms Knapp’s objection was lodged outside the statutory timeframe; and if so

• should she be granted an extension of time to object to the decision made on 17 September 2022?

CONSIDERATION

10.  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.

11.  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.

12.  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 Ms Knapp rested on her rights

14.  Ms Knapp’s testimony can be summarised as follows. Her mother died in May 2022 from COVID after a brief illness. Her parents had been married for over 50 years. Her father’s physical and emotional health very quickly declined; he was not eating or sleeping and required constant supervision as he expressed a desire to no longer live. She relocated from her home in [Town 1] some 75km away to care for him at his farm. 

15.  She agreed that the decision made by the senior case officer was sent to her father’s farm address, where she was living at the time. She simply cannot explain how she did not receive the notice. She is not aware of there being any issues with mail delivery to the farm. She also does not dispute the Child Support record which states that messages and text messages were sent to her; she cannot recall receiving them but, in any event, given the crisis situation and her caring responsibilities she would not have returned them anyway.

16.  It was only in November 2022 that she received notification of child support arrears owing that she initiated contact with Child Support. She was advised that the arrears were the consequence of the children’s care arrangements, which did not reflect the actual care. She was advised to lodge a care change application, which she did promptly on 7 and 28 December 2022.

17.  Following that, she received notice of the care decision dated 12 February 2023, which she did not receive until early March 2023, that she realised that her income had been varied to $91,312. She contacted Child Support to discuss the variation to her income and was advised to lodge an objection, which she did straight away.

18.  Ms Knapp provided a clear and coherent account of her reasons for delay. She impressed the Tribunal as a witness of credit. The Tribunal accepts that the departure decision was made in a period of mourning for Ms Knapp and her family. Furthermore, it coincided with a period where she held grave fears for her father’s mental health and was required to provide him with constant supervision. The Tribunal is satisfied that the months following her mother’s death were a period of crisis for Ms Knapp which significantly impacted on her capacity to attend to child support matters.

19.  The Tribunal also notes that the Child Support record provided does not contain any evidence relating to Ms Knapp’s contacts on 7 and 28 December 2023 regarding the care change, which is concerning. In the absence of this evidence the Tribunal accepts Ms Knapp’s testimony that she was advised that the child support arrears were caused by the children’s care arrangements and not the departure decision.

20.  After taking into account Ms Knapp’s testimony and considering Child Support’s records, the Tribunal concludes that Ms Knapp did not rest on her rights and has provided a reasonable and adequate explanation for the delay in lodging her objection.

The merits of Ms Knapp’s objection

21.  Ms Knapp testified that she was not engaged in paid work until commencing a role at [Employer 1] on a permanent part-time basis in November 2022, confirming that she was offered the role on 20 October 2022 but could not formally commence until security clearances were granted. She advised that her final payslips as at 30 June 2023 show that her gross income from this employer was $66,745.

22.  The departure application which she has objected to has varied her income to $91,312, on the basis of the average income of an [occupation 1] employed on a full-time basis.

23.  The Tribunal finds that Ms Knapp’s objection has merit.

Prejudice to [Mr A] and the wider public

24.  There is no evidence to suggest what, if any, prejudice [Mr A] would experience if an extension of time was granted. On balance, the Tribunal does not consider that there would be significant prejudice to [Mr A] if an extension of time was granted.

25.  The Tribunal is not satisfied that there would be prejudice to the wider public if the extension of time were granted, even though the granting of the extension may be contrary to community expectations regarding the finality and certainty of administrative decision-making.

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

26.  The Tribunal has considered the fairness in granting an extension of time as between Ms Knapp and other persons in a similar position. The Tribunal finds that it would be fair to grant an extension, largely because of the apparent merits of the application.

Whether it would be proper to grant an extension of time

27.  The Tribunal considers that in the circumstances of this case it is proper to grant Ms Knapp an extension of time.

Conclusion

1. In the circumstances, the Tribunal has decided to grant an extension of time to Ms Knapp.

DECISION

The decision under review is set aside and a decision substituted that Ms Knapp’s is granted an extension of time in which to lodge her objection to a decision made by Services Australia – Child Support on 17 September 2022.