Kuhn and Child Support Registrar
[2001] AATA 423
•28 March 2001
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DECISION AND REASONS FOR DECISION [2001] AATA 423
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/1071
GENERAL ADMINISTRATIVE DIVISION )
Re DENISE MARIE KUHN
Applicant
And CHILD SUPPORT REGISTRAR
Respondent
DECISION
Tribunal Mr. D.W. Muller, Senior Member
Date28 March 2001
Place Lismore
.............(Signed)...................
D.W. MULLER
SENIOR MEMBER
CATCHWORDS
CHILD SUPPORT – Application for extension of time within which to lodge objection to refusal of application for administrative assessment
Child Support (Assessment) Act 1989: s.27, 29(2)(c), 98X(1)(b), 98Z, 98ZD, 106(1)
REQUEST FOR WRITTEN REASONS FOR DECISION
Mr. D.W. Muller, Senior Member
This was an application for review of a decision made by the respondent on 20 September 2000 which refused the applicant's request for an extension of time to lodge an objection to a decision of the respondent dated 14 June 2000.
On 24 May 2000, the applicant gave birth to a male child, C.
In the weeks leading up to the birth of C, and in the weeks following the birth, negotiations took place between the applicant, her family, the alleged father of the child (Mr. X) and the parents of Mr. X, about child support for the child. Mr. X did not admit to paternity of the child and refused to offer financial support.
On 7 June 2000, the applicant attempted to initiate proceedings whereby Mr. X would be declared the father of the child and would be ordered to pay child support to the applicant.
Those parts of the Child Support (Assessment) Act 1989 (the Act) which are relevant to this review, provide as follows:
(i)An application for administrative assessment of child support must be made to the Registrar in the manner specified by the Registrar (s.27).
(ii)Before the Registrar can accept the application, the Registrar must be satisfied that the relevant party is a parent of the child. Sub-section 29(2) sets out the various criteria to be applied to be so satisfied. The criterion applicable in this case is 29(2)(c):
"that, whether before or after the commencement of this Act, a federal court, a court of a State or Territory or a court of a prescribed overseas jurisdiction has:
(i) found expressly that the person is a parent of the child."
(iii)If the Registrar is not satisfied that the relevant person is a parent of the child, within the prescribed criteria, the Registrar is bound to refuse the application.
(iv)An unsuccessful applicant may lodge with the Registrar an objection to the decision to refuse to accept an application for administrative assessment (s.98X(1)(b)). The time limit on lodging an objection is 28 days after service of notice of decision (s.98Z). An extension of time may be allowed (s.98ZD).
(v)If the objection is unsuccessful, the applicant may apply to a court having jurisdiction under the Act for a declaration that the applicant was entitled to administrative assessment of child support for the child payable by the person from whom the application sought payment of child support (s.106(1).
(vi)However, application may not be made to a court under s.106(1) unless the applicant has first been through the objection process s.106(1A).
"A person may not apply to a court under subsection (1) unless:
(a)the person has objected under section 98X to the Registrar's refusal to accept the application for administrative assessment; and
(b)the Registrar has either disallowed the objection or has allowed it only in part."
Thus, the path which the applicant had to follow to be successful was:
(i)Make an application to the Registrar in the appropriate manner.
(ii)Have the application rejected.
(iii)Object to the refusal within 28 days of receiving the refusal.
(iv)Have the objection decision go against her.
(v)Apply to a court of competent jurisdiction.
(vi)Obtain the relevant orders of the court.
The application made by the applicant on 7 June 2000 was unsigned and incomplete. An officer of the Child Support Agency (CSA) telephoned to advise the applicant that she should put in a new application. The officer sent the applicant mother an application form. The officer also told the applicant that her application would be refused unless she had acceptable proof that Mr. X was the father of C, but that the Family Court could only order DNA testing, or make an order that Mr. X was the father of C, if she went through the procedure laid down in the Act.
On 13 June 2000 the CSA received an application duly completed and signed by the applicant.
On 14 June 2000 the Regional Child Support Registrar (RCSR) refused to accept the applicant's application of child support payable by Mr. X for C as she was not satisfied that Mr. X was C's father.
The decision of the RCSR was sent to the applicant on 14 June 2000. The RCSR also advised the applicant that she could formally object to the decision within 28 days of receiving the decision.
On 14 September 2000, the applicant's solicitor telephoned the CSA to obtain a copy of the CSA's letter dated 14 June 2000.
On 18 September 2000 the applicant objected to the RCSR's decision to refuse her application for administrative assessment. She also applied for an extension of time within which to object.
On 18 September 2000, the applicant also made a new application for administrative assessment of child support payable by Mr. X for C.
On 20 September 2000 the applicant was advised that her request for an extension of time to lodge the objection to the decision of 14 June 2000, was denied. The basis of the decision to refuse an extension of time was that the application would inevitably be refused because of the lack of evidence of paternity.
The applicant has subsequently followed through with her new claim which she initiated on 18 September 2000 (see paragraph 13 above). Mr. X was tested in January 2001 and found to be the father of C.
The only point of this exercise is that if the application for extension of time is successful, Mr. X may have to pay child support from 13 June 2000, instead of from 18 September 2000. Although this is by no means a certainty.
The applicant submitted that the reasons she did not contact the respondent within 28 days of the decision was that firstly, she was incapacitated for some time after the birth of C, due to complications with the birth. She gave birth by caesarean section, had an infection following this and was unwell for over a month. There were also problems with her newborn child being ill, and a period of strained relations between the applicant and Mr. X.
The applicant claimed that her problems were emotionally traumatic at the time that she made her initial application with the respondent. She believes this was compounded because she is a single mother with no transport and lives a considerable distance from the nearest office of the respondent. She also claims the letter she received from the respondent on 14 June 2000 was misleading and unclear. She submitted that this letter did not clearly set out the consequences if she failed to object within the 28 day period.
The respondent submitted that the decision to refuse an extension of time was correct at the time it was made because the application would have inevitably been refused due to the lack of evidence of paternity available to the Registrar.
Prima facie time limits should be adhered to or otherwise there is no point in having them. When extensions of time are allowed, it is usual in assessing whether or not discretion should be exercised in favour of the extension, to canvass the reasons why there has been a delay, the merits of the case and the possible detriment suffered by either party.
In this case the merits of the substantive application are almost irrelevant. If an extension had been granted on 20 September 2000, the substantive application would have failed. Nevertheless, the applicant had to go through that pre-requisite process to achieve her aim of getting a court order for DNA testing. She has in fact subsequently achieved her aim.
I accept that the applicant did not sit on her hands during the period in question. She let Mr. X know that she was pursuing child support. She was also attempting a reconciliation with him.
The Tribunal was informed by the advocate for the respondent that the difference in child support payments dating from 18 September 2000 as against those dating from 13 June 2000, could be as high as $1,000. Mr. X is apparently a 23 year old storeman at a supermarket.
The applicant has been receiving social security benefits and has not been in financial trouble. If this application is not successful, she will suffer almost no detriment.
Mr. X was never made a party to these proceedings. He probably should have been because he stands to suffer a significant detriment if this application is successful and if that results in a back dating of child support.
On balance, I believe that the interests of justice will be best served by affirming the decision on 18 September 2000 to refuse an extension of time.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D.W. Muller, Senior Member
Signed: .....................................................................................
R. Hayes, AssociateDate/s of Hearing 28 March 2001
Date of Decision 28 March 2001
Request for written reasons 18 May 2001
Applicant Ms. Dillon-Smith
Respondent Ms. Cuthbert, departmental advocate
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