Pippen and Child Support Registrar (Child support)

[2021] AATA 1284

Pippen and Child Support Registrar (Child support) [2021] AATA 1284 (26 March 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC020570

APPLICANT:  Ms Pippen

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member S Brakespeare

DECISION DATE:  26 March 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – application for extension of time to object – no satisfactory explanation for the delay – no merit – prejudice to other party – extension of time refused

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. On 4 January 2021 an officer of the Child Support Agency refused to grant Ms Pippen’s application for an extension of time to lodge an objection to an original decision made by an officer of the Child Support Agency on 18 February 2020. The original decision was a decision to accept Ms Pippen’s application for ongoing collection of child support payments from 28 January 2020 and to collect an outstanding amount of $200 relating to the arrears period 3 January 2020 to 27 January 2020. Ms Pippen lodged her objection and extension of time application with the Child Support Agency on 4 November 2020.

2. Ms Pippen lodged an application for a review of the extension of time refusal decision with the tribunal. A hearing was held on 26 March 2021. Ms Pippen gave evidence on affirmation to the via conference telephone. The Child Support Agency provided the tribunal and Ms Pippen with a bundle of papers relevant to the review (100 pages).

3. Relevant aspects of the evidence and material before the tribunal will be referred to in the tribunal’s consideration of the issues which it has to decide.

ISSUES

1. The statutory provisions relevant to this review are found in the Child Support (Registration and Collection) Act 1988 (the Act).

2. The issue which arises in this case is whether the application for an extension of time to lodge an objection should be granted.

CONSIDERATION

1. Section 80 of the Act provides that a person may lodge an objection in writing to the Child Support Agency to specified decisions made by the Child Support Agency.

2. Section 81 of the Act provides that an objection to a decision must be lodged by a person within 28 days after a notice of the decision is served on the person.

3. Section 82 of the Act provides, in cases where the lodgement period has passed, a person may send an objection along with an extension of time application requesting the Child Support Agency to treat the objection as having been duly lodged. The application must 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 in time.

4. Section 83 of the Act provides that the Child Support Agency must consider and either grant or refuse the application for an extension of time. If the application is granted then the person is taken to have lodged the objection.

5. Section 89 of the Act provides that an application may be made to the tribunal[1] for review of a decision made under section 83.

   [1] AAT first review

6. The general starting position for extension of time applications is 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, for example, Martinsen v Secretary, Department of Family & Community Services [2004] FCA 297 per Spender J). In Hunter Valley Developments P/L v Cohen (1984) 3 FCR 344, the Federal Court summarised the conditions to be considered before an extension of time will be granted, namely that:

   ·     there should be an acceptable explanation of the delay; and

   ·     it must be fair and equitable in the circumstances.

7. In determining whether it is fair and equitable to extend time, the Court indicated that relevant considerations will include any prejudice to the parties and the merits of the substantive application. In Comcare v A’Hearn [1993] FCA 498, the Full Federal Court held that, while an acceptable explanation for any delay would usually be expected, this was not a necessary pre-condition to the grant of an extension of time. The tribunal takes the view that, in child support matters where one of the affected parties is the other parent, a failure to have an adequate reason for the delay would work against a finding that granting the extension of time would be fair and equitable.

8. The tribunal will now consider the facts in this case against the matters to which consideration should be given.

Reasons for delay

1. Ms Pippen told the tribunal that in the first 6 months of the child support case the other parent, [Mr A], did not pay her any child support as he did not have enough money to survive on. He promised to pay her back when his financial situation improved. Ms Pippen then found [Mr A] a cheaper place to live and his financial situation improved. He started becoming difficult about the child support which is why she than applied for agency collect.  Once she started getting regular payments through the Child Support Agency [Mr A] reneged on his agreement to pay her the 6 months’ arrears. He has recently received 2 lump sum superannuation payments but has not paid her the arrears.

2. The tribunal finds Ms Pippen made no attempt to challenge the decision within the period allowed for objecting and the delay was for a considerable period of time. The tribunal finds that Ms Pippen has rested on her rights. She does not have an adequate reason for the delay.

Merits of the substantive matter

1. The tribunal is not required to consider the substantive decision in depth. It only has to be satisfied that there is a sufficient chance of a successful outcome from a review.

2. The provisions in respect of an election to have the Child Support Agency to collect the ongoing child support liability and 3 months arrears are set out in section 28A of the Act. The arrears period can exceed 3 months (but not more than 9 months) if there are exceptional circumstances. The tribunal notes that when Ms Pippen made her election to have the child support collected she advised the Child Support Agency that [Mr A] owed her $200 and at the time [Mr A] agreed that was the case.

3. Ms Pippen has provided no evidence to support her current assertion that she was owed 6 months arrears and the assertion is contrary to what she and [Mr A] advised the Child Support Agency at the time  the original decision was made. There is also no evidence of exceptional circumstances.

4. The tribunal finds that it is unlikely that the substantive decision would be changed. The substantive matter therefore has little merit.

Prejudice to the other party

1. Given the length of the delay the tribunal is satisfied that there would be prejudice to [Mr A] if the extension of time was granted.

Conclusion

1. The tribunal finds that it would not be fair and equitable to grant the extension of time as Ms Pippen did not have an adequate reason for the delay, the other party is likely to suffer prejudice if the extension of time were granted, and the substantive matter lacks merit.

DECISION

The decision under review is affirmed.