Larsen and Child Support Registrar (Child support)

[2020] AATA 903

Larsen and Child Support Registrar (Child support) [2020] AATA 903 (16 March 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC018091

APPLICANT:  Mr Larsen

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member S Letch

DECISION DATE:  16 March 2020

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Larsen is granted an extension of time to object to the decision of 30 April 2019.

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. Mr Larsen has been assessed by the Child Support Agency (CSA) to pay child support to [Ms A]. On 30 April 2019, the CSA wrote to Mr Larsen to advise him that it had accepted [Ms A’s] application for a “change of assessment”.   

2. According to the CSA, Mr Larsen did not object to the decision until 25 November 2019. On 5 December 2019, the CSA refused Mr Larsen’s application for an extension of time to bring an objection.

3. On 20 December 2019, Mr Larsen applied for review of that refusal; he participated in the Tribunal’s hearing by conference telephone.

CONSIDERATION

Background and legislative framework

1. A parent may object to a decision made by the CSA pursuant to section 80 of the Child Support (Registration and Collection) Act 1988 (the Registration Act). Section 81 of the Registration Act provides that an objection must be lodged within 28 days after notice of the decision is served on the person.

2. Section 82 of the Registration Act relevantly provides that a person may apply for an extension of time in which to lodge an objection and that the application must state fully and in detail the grounds for the application, including the circumstances concerning, and the reasons for, the failure by the person to lodge the objection within the 28-day time period prescribed. The Registration Act does not set out criteria for consideration when considering an application for an extension of time within which to object. However, the Child Support Guide (the Guide) contains useful guidelines at chapter 4.1.5. In summary, the Guide suggests that it is ultimately a question as to whether the interests of justice favour the granting or refusal of the application in the particular circumstances. Factors to be considered are the reason for the delay, the merits of the objection, whether the person has rested on their rights and any potential prejudice to the other party or the public.

3. The established cases indicate that the starting position is the prima facie rule that proceedings commenced outside a statutory period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at [416]). However, the primary concern “is to do that which will enable justice to be done between the parties” (see Martinsen v Secretary, Department of Family & Community Services [2004] FCA 297 per Spender J). Spender J quoted McHugh J in Gallo v Dawson (1990) 64 ALJR 459 as follows:

   In order to determine whether the rules [imposing time limits] will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time ...

   When the application is for an extension of time …it is always necessary to consider the prospects of the applicant succeeding in the appeal …

4. In line with Wilcox J’s survey of cases in Hunter Valley Developments P/L v Cohen (1984) 3 FCR 344, the Tribunal proposes to consider the matters identified in Gallo v Dawson under the following headings:

   ·      the explanation for the delay;

   ·      the merits of the substantial application;

   ·      any prejudice to the other party including any prejudice in defending the proceedings occasioned by the delay; and

   ·      any public interest considerations that might flow from a successful application including “the unsettling of other people” (Ralkon v Aboriginal Development Commission(1982) 43 ALR 535 at [550]) or of “established practices” (Douglas v Allen (1984) 1 FCR 287).

Explanation for the delay

1. An examination of the CSA records reveals this was not a case of Mr Larsen “sitting on his hands”. He told the Tribunal he had numerous calls on 7 May 2019, 13 May 2019 (folio 109 of the CSA materials), and 31 July 2019, amongst others. He wrote to the CSA in a letter dated 11 August 2019. On 22 October 2019, in a conversation with [Person B], he was advised that the other parent had, in fact, objected to the decision within the 28-day time period; due to an administrative oversight, the CSA had not taken any action on it. Mr Larsen said [Person B] advised him it would be easier if he withdrew his objection and application for an extension to object, and that the matter could proceed on that basis. He was told there would be no disadvantage or risk to him by following that course. He was not advised that if the other parent withdrew, he would have “no leg to stand on”.

2. In light of the CSA’s apparent mismanagement of the matter, and the fact that Mr Larsen continued to raise his objection to the assessment of his income, the Tribunal considers he has a reasonable explanation for the delay in making his formal objection. 

Merits of the objection

1. There is no point granting an extension if an objection is unlikely to succeed.

2. Mr Larsen raises a number of arguments which might suggest he has some prospects for a different decision to be made. The Tribunal observes that the very nature of these decisions, and the wide discretion afforded to decision-makers, means it cannot be said an objection, if permitted to proceed, would be devoid of possible merit.

Potential prejudice

1. The other parent withdrew an objection to the decision some time after 22 October 2019; from that time, the other party was entitled to regard the matter at an end. Mr Larsen acted shortly after; in the Tribunal’s assessment, this factor does not weigh particularly heavily against granting an extension.

Public interest considerations

1. The statute provides for a 28-day period for the lodgement of objections so that parents (and the CSA) can act with certainty as to the outcome when the objection period has elapsed. The public has an interest in reviews of decisions made by the CSA being performed in a timely fashion and in a manner that ensures all applicants are treated fairly and equally. Accordingly, an extension of the time for objection, even a brief one, is not to be automatically granted.

Conclusion

1. The Tribunal is satisfied Mr Larsen has a reasonable explanation for the delay. His application, if permitted to proceed, is not without some prospects for success. The possible prejudice to the other party is limited here.

2. In all the circumstances, the Tribunal considers the interests of justice are best served by granting an extension of time for Mr Larsen to bring an objection.

3. As the Tribunal has reached a different conclusion to the CSA, the decision under review will be set aside.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Larsen is granted an extension of time to object to the decision of 30 April 2019.