Lynch and Deputy Child Support Registrar - [2002] AATA 1297

DECISION AND REASONS FOR DECISION [2002] AATA 1297

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2002/457
GENERAL ADMINISTRATIVE DIVISION
  Re:         DONNA LYNCH
  Applicant

And:DEPUTY CHILD SUPPORT REGISTRAR
Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             13 December 2002
Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman
Member

CHILD SUPPORT - objection to decision to credit non-agency payment - application for extension of time
Child Support (Registration and Collection) Act 1988 s84A, s89

REASONS FOR DECISION

13 December 2002 G.D. Friedman, Member

This is an application by Donna Lynch (the applicant) for review of a decision of a delegate of the Deputy Child Support Registrar (the respondent) dated 28 March 2002 to refuse to grant an extension of time in relation to the applicant's objection to a decision by the respondent to credit a non-agency payment in her child support assessment.
At the hearing of this matter, by telephone on 9 December 2002, the applicant represented herself and Mr P. Berrigan, Regional Manager, Objections, Child Support Agency, Perth, represented the respondent.
The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T33).
BACKGROUND
The applicant had been receiving child support collected by the Child Support Agency (CSA). On 30 August 2000 she informed the CSA by telephone that she was due to receive $1061.72 (the tax payment) in child support from the father of her children (the father) by way of tax refund cheque payable to him, and she wished to discontinue collection by the CSA as the father had agreed to pay child support directly to her. In response to this request the CSA discontinued collecting child support and credited the amount (known as a non-agency payment) of $1061.72.
The payments promised by the father did not eventuate. On 23 October 2000 the applicant requested the CSA to resume collection of child support. On 25 January 2002 Centrelink decided to raise a debt for the period from 1 July 2000 to 30 June 2001 for overpayment of family tax benefit because the estimate of child support was incorrect. On 27 March 2002 the applicant lodged a written request with the respondent for an extension of time relating to her objection to the recording of a non-agency payment in her child support assessment. On 28 March 2002 a delegate of the respondent refused the application for an extension of time on the basis that there were no exceptional circumstances that prevented the objection from being lodged within the 28-day time limit.
On 16 April 2002 an authorised officer of Centrelink affirmed the decision to seek recovery of $718.24. On 7 May 2002 the applicant lodged an application with the Social Security Appeals Tribunal (SSAT) against the decision of the Centrelink authorised review officer. On 17 June 2002 the SSAT set aside the decision and found that the applicant had incurred a debt of $650.73, but that the debt should be waived in full.
EVIDENCE
The applicant gave oral evidence that in her letter seeking an extension of time she stated:
Firstly, I must acknowledge my part in this misunderstanding in regards to the non-agency payment – not received – dated approximately 30 August 2000. I apologise sincerely for my part in any of these unforseen circumstances.
She said that she was not aware until about June or July 2001 that the respondent had recorded the tax payment as having being received by her when Centrelink raised a debt for overpayment of family tax benefit. She stated that she moved from Western Australia to Victoria in 2001 and after several months she returned to Western Australia before moving permanently to Victoria in 2002. She told the Tribunal that in addition to the stresses involved in the interstate changes of residence and the care of young children, there were a number of other personal issues, including ongoing difficulties in receiving child support payments from the father. She said that for these reasons she did not explore sufficiently her options to object to the decision of the respondent.
The applicant explained that her attention was also taken up with matters involving negotiations with Centrelink regarding overpayment of social security benefits, so that she was unable to focus on issues such as objecting to decisions of the respondent. She acknowledged that her application for extension of time was about eighteen months out of time, but she reiterated that in her telephone conversation with the respondent on 22 August 2000 she did not state that she had received the tax payment.
Among the documents provided by the respondent to the Tribunal was a record of a telephone call from the applicant on 23 October 2000 in which she explained that she had not received the tax payment promised by the father, and asked for collection of child support to resume from 30 August 2000.
CONSIDERATION OF THE ISSUES
The relevant sections of the Child Support (Registration and Collection) Act 1988 (the Act) are:
Objections against credits under sections 71 and 71A
84A. (1) If:
(a)the Registrar, under section 71, 71A or 71C, credits an amount received by payee against the liability of the payer to the Commonwealth; and
(b)the payee is dissatisfied with the decision;
the payee may, within 28 days after service on him or her of notice of the decision, lodge with the Registrar an objection in writing against the decision.
84A. (2) The objection must state fully and in detail the grounds relied on.
Applications for extension of time
89. (1) Where the period for the lodgment by a person of an objection under this Division has ended, the person may, even though the period has ended, send the objection to the Registrar together with an application in writing requesting the Registrar to treat the objection as having been duly lodged.
89. (2) The application shall state fully and in detail the grounds of the application, including the circumstances concerning, and the reasons for, the failure by the person to lodge the objection as required by this Division.
Mr Berrigan referred the Tribunal to paragraphs 37 to 39 of the Child Support Policy Guideline 1999.02 which set out the following factors that need to be considered by the respondent in determining whether the discretion to grant the extension of time should be exercised in favour of the applicant: the length of the further time sought; the merits of the case; the possible detriment to the applicant if the extension of time is not granted; the possible detriment to the other parent if the extension of time is not granted; and any administrative difficulties in reconsidering the decision.
Mr Berrigan submitted that the applicant was seeking an extension of more than eighteen months to lodge her objection. He noted that after such a long time the respondent would have a greatly diminished capacity to resolve the matter, and that the respondent's actions in recording the non-agency payment were reasonable in the circumstances at the time, particularly in view of the applicant's apology in her letter dated 27 March 2002 in which she sought the extension of time. He said that there may be detriment to the father if the extension is granted because the father might incur an additional debt. Mr Berrigan also submitted that there was little merit in the objection sought to be raised by the applicant.
In reaching its decision the Tribunal takes into account the oral and written evidence and submissions made at the hearing.
The Tribunal accepts that the applicant made a genuine effort to recall her conversations with the delegate of the respondent to the best of her ability, and that she is adamant that on 22 August 2000 she did not inform the CSA that she had received the tax payment from the father. The Tribunal also accepts that the applicant experienced personal difficulties, including changes of residence and problems with the collection of child support from the father.
However, the Tribunal accepts the submission by Mr Berrigan that the length of time sought by the applicant to extend the time to lodge the application is considerable, and that the actions by the CSA to record the non-agency payment on 22 August 2000 were reasonable in view of the request by the applicant that collection of child support by the CSA should cease. Therefore, the Tribunal finds that the objection itself does not have significant merit. The Tribunal also accepts that there may be detriment to the father if the extension of time is granted after such a long period, and there may be administrative difficulties in reconsidering a decision made in August 2000.
The Tribunal finds that the applicant ought to have been aware of the requirements of lodging an objection when she contacted the respondent on 23 October 2000 or when contacted by Centrelink in June or July 2001 at the latest, and that she failed to make enquiries or take appropriate action. The Tribunal notes that the SSAT waived, in full, her debt to Centrelink arising from overpayment of family tax benefit, and finds that refusing to grant the extension of time would not cause substantial injustice to the applicant.
For these reasons the Tribunal finds, on balance, that the discretion to extend the time to lodge an objection should not be exercised on this occasion.
DECISION
The Tribunal affirms the decision under review.
I certify that the nineteen [19] preceding paragraphs are a true copy of the reasons for the decision of:
G.D.Friedman, Member
(sgd)       Olympia Sarrinikolaou
              Clerk
Date of hearing:  9 December 2002
Date of decision:  13 December 2002
Advocate for applicant:               Self-represented
Advocate for respondent:            Mr P. Berrigan, Child Support Agency