Pettitt and Child Support Registrar (Child support)

[2019] AATA 2530

Pettitt and Child Support Registrar (Child support) [2019] AATA 2530 (13 June 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC016169

APPLICANT:  Mr Pettitt

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member F Hewson

DECISION DATE:  13 June 2019

DECISION:

The decision under review is set aside and Mr Pettitt’ application for an extension of time to object to the decision of 12 March 2018 to extend the child support assessment beyond the child’s 18^th birthday is granted.

CATCHWORDS

CHILD SUPPORT – refusal to grant an extension of time to object - no satisfactory explanation for the delay - arguable merit - weighing of factors - 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 removed 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 Pettitt and [Ms A] are the parents of a child, aged 18, in respect of whom there is a child support liability. This application for review is about whether Mr Pettitt should be given an extension of time to object to a decision, made on 12 March 2018, to extend the child support assessment beyond the child’s 18^th birthday.

2. Mr Pettitt’ application for an extension of time, lodged on 15 January 2019, was refused by an officer of the Department of Human Services – Child Support (the Department) on 18 March 2019.

3. On 22 March 2019 Mr Pettitt lodged an application for review of the refusal with this tribunal. The application was heard on 13 June 2019. Mr Pettitt spoke to the tribunal by conference telephone. The Child Support Registrar did not participate in the hearing. As well as the evidence of Mr Pettitt the tribunal also had regard to documents provided by the Department and to written submissions prepared by Mr Pettitt’ representative, [Mr B].

ISSUES

1. The relevant law in this case is in the Child Support (Registration and Collection) Act 1988; generally objections must be lodged within 28 days of the day on which notice of the decision is given (section 81).  An application outside that time can only proceed if the objector also applies for an extension of time in which to object and that application is granted (section 83). 

2. The issue in this case is whether in the particular circumstances of Mr Pettitt’ case it is appropriate to grant his request for an extension of time to object to the decision of 12 March 2018.

CONSIDERATION

1. The documents provided by the Department include the letter dated 12 March 2018 which advised Mr Pettitt that the Department had made a decision to extend the child support assessment past the child’s 18^th birthday.

2. I considered whether it is appropriate to grant Mr Pettitt’ application for an extension of time to lodge his objection.

3. In making my decision I am guided by the relevant provisions in the child support legislation and by decisions made by courts or tribunals. Those authorities 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 including:

   ·     The reasons for the delay and whether the applicant rested on their rights or took action to make the decision-maker aware that the decision was being contested;

   ·     Any prejudice to the other party including any difficulties that they will experience in providing evidence as a result of the delay;

   ·     Any wider prejudice to the general public;

   ·     Fairness in granting an extension of time as between the applicant and other persons in a similar position;

   ·     The merits of the substantive application;

   ·     Whether it is proper to grant the extension of time.

4. Mr Pettitt said the lodgement of his objection, which was about nine months outside the usual 28 day timeframe, was delayed because he was not aware that the Department’s decision to extend the child support assessment was incorrect. It was not until his partner sought advice about the child support assessment that he became aware of the issue, which prompted him to lodge his objection.

5. I accepted that Mr Pettitt was delayed in lodging his objection because he had no reason at the time the decision was made to believe the decision was incorrect. I was not persuaded, however, that this is a reasonable explanation for the delay in lodging the objection.

6. I also considered the merits of the application. Detailed submissions in relation to this aspect of Mr Pettitt’ application are contained in his written application to the tribunal, a copy of which has been given to the Department. It is argued, in summary, that the Department has misapplied section 151B of the Child Support (Assessment) Act 1989 (the Act) in deciding to extend the child support assessment beyond the child’s 18^th birthday. Specifically, it is argued that the meaning of the word “year” in the context of section 151B has been incorrectly interpreted, and the child support assessment incorrectly extended into the 2019 year.

7. Having weighed the available evidence, I concluded that there is merit in Mr Pettitt’ application, to the extent that cogent arguments in relation to the interpretation of section 151B have been presented and a decision in Mr Pettitt’ favour could be made in relation to his objection.

8. I also considered the prejudice to the other party to the child support case, to the Department and to the general public, should the extension of time be granted. I concluded that there would be prejudice to [Ms A] as she could, if the extension of time was granted, be assessed to owe overpayments of child support which she has, reasonably, relied upon as her correct entitlement.

9. I concluded that any prejudice to the Department or the general public in this case if the extension of time application was granted is balanced by the wider interest in the provisions of the Act being correctly interpreted and applied.

Conclusion

1. I carefully weighed the various factors which I had to consider. I concluded that while the explanation for the delay in this case is not reasonable and there is prejudice to [Ms A], the merits of the application and the public interest in the law being correctly interpreted and applied are such that an extension of time for Mr Pettitt to object to the decision of 12 March 2018 is appropriate.

DECISION

The decision under review is set aside and Mr Pettitt’ application for an extension of time to object to the decision of 12 March 2018 to extend the child support assessment beyond the child’s 18^th birthday is granted.