Potts and Child Support Registrar (Child support)

[2023] AATA 847

Potts and Child Support Registrar (Child support) [2023] AATA 847 (10 March 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/BC025006

APPLICANT:  Mr Potts

OTHER PARTY:  Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  10 March 2023

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – refusal to grant an extension of time to object - weighing all factors the extension of time was correctly refused - decision under review affirmed

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

1. Mr Potts and [Ms A] are the parents of [Child 1], [Child 2] and [Child 3]. For convenience, and with Mr Potts’ consent, I will refer to the parents by their given names. Mr Potts and [Ms A] divorced in or around 2012. [Ms B] has a child, [Child 4], from an earlier relationship. Mr Potts and [Ms B] are the parents of [Child 5]. Mr Potts and [Ms B] divorced in or around 2016.

2. On 30 May 2022, [Ms B] applied for administrative assessment of child support in respect of her care for [Child 2] (i.e. she applied for a child support case in respect of [Child 2].) On 6 June 2022 the Child Support Agency (“the CSA”) decided to accept her application. Mr Potts was notified of that decision via a letter dated 6 June 2022. He had a right to object to that decision. Section 81 of the Child Support (Registration and Collection) Act 1988 relevantly provides that an objection “must be lodged by a person within 28 days after a notice of the decision is served on the person.” Mr Potts objected on 11 October 2022. There is no dispute that his objection was out of time. He also applied for an extension of time in which to object. The CSA decided to refuse his extension of time application. He applied to the Tribunal for review of that decision. I heard the matter on 10 March 2023. Mr Potts gave sworn evidence via MS Teams.

3. The general principles to be applied when deciding an extension of time application were summarised in Phillips v Australian Girls’ Choir and Another [2001] FMCA 109 at [10]:

   1.There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The "prescribed period" of 28 days is not to be ignored …

   2.It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained … It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition …

   3.…It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. …

   4.Any prejudice to the respondent … is a material factor [which goes] against the grant of an extension.

   5.The mere absence of prejudice is not enough to justify the grant of an extension. …

   6.The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. …

   7.Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion …

4. Section 25A of the Child Support (Assessment) Act 1989 (“the Assessment Act”) states when a non‑parent carer such as [Ms B] can apply for administrative assessment of child support for a child. Section 25A contains a number of requirements. The only requirement in dispute is whether [Ms B] was an “eligible carer”: paragraph 25A(a). That term is defined in section 7B of the Assessment Act which relevantly states:

   Meaning of eligible carer

   (1)In this Act, eligible carer, in relation to a child, means a person who has at least shared care of the child.

(2)Despite subsection (1), if:

(a)a person cares for a child; and

(b)the person is neither a parent nor a legal guardian of the child; and

(c)a parent or legal guardian of the child has indicated that he or she does not consent to the person caring for the child;

then the person is not an eligible carer in relation to the child unless it would be unreasonable in the circumstances for a parent or legal guardian of the child to care for the child.

…

1. There is no dispute that [Ms B] was providing full-time care for [Child 2] when she applied to register a child support case. [Ms B] was providing at least “shared care” as that term is defined in section 5 of the Assessment Act. [Ms B] satisfied the general definition of eligible carer in subsection 7B(1) of the Assessment Act.

2. Mr Potts effectively submitted that the requirements of subsection 7B(2) were satisfied and therefore, despite subsection 7B(1), [Ms B] was not an eligible carer. In particular, he stated that he and [Ms A] did not consent to [Ms B] caring for [Child 2]: paragraph 7B(2)(c). A consent order suggests otherwise, but it is not necessary to consider that matter further.

3. Subsection 7B(2) has three requirements. I will focus on the second requirement. On 4 May 2022, in proceedings in which [Ms B], [Ms A], Mr Potts and an Independent Children’s Lawyer were the parties, the Federal Circuit and Family Court made orders which relevantly stated:

   THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER:

   Parental Responsibility

   1. That [Ms B], [Ms A] and [Mr Potts] have equal shared parental responsibility for [Child 2].

   …

   Care Arrangements

   …

   5.That [Child 2] shall live with and spend time with any of the parties in accordance with her wishes.

   …

4. There is no dispute that [Child 2] chose to live with [Ms B] on a full-time basis. Mr Potts noted that the orders do not expressly state that [Ms B] is [Child 2]’s legal guardian. The term “legal guardian” is not defined in the child support legislation. Mr Potts did not refer me to any relevant legal authority on the issue. I suggested that the granting of shared parental responsibility to [Ms B] might equate to her being a legal guardian. Mr Potts acknowledged the force of that suggestion and he did not propose an alternative conclusion.  

5. In 2007 the Human Rights and Equal Opportunity Commission published a report entitled National Inquiry into Discrimination against People of Same-Sex Relationships: Financial and Work-Related Entitlements and Benefits.[1] The inquiry was conducted by Mr von Doussa QC and Mr Innes AM, President and Human Rights Commissioner respectively of the Commission. On the definition of “eligible carer” in section 7B of the Assessment Act, they observed at 12.4.2:

   There is no definition of ‘legal guardian’ in the Child Support (Assessment) Act 1989 (Cth). ‘Guardianship’ is a term that has not been used for some years in the Family Law Act 1975 (Cth), where it was replaced by the concept of ‘parental responsibility’. By implication, it seems likely that a person with parenting orders granting them sole or shared parental responsibility under the Family Law Act 1975 (Cth) would be taken as a ‘legal guardian’ for the purposes of the Child Support (Assessment) Act 1989 (Cth). See Family Law Act 1975 (Cth), ss 61B, 61D, 64B(1).

   [1]>

   I respectfully agree with that observation. Mr Potts’ objection has very poor prospects of success.

6. Mr Potts acknowledged that the CSA’s letter dated 6 June 2022 informed him of the need to lodge any objection within 28 days of being notified of the original decision. He explained that he had been focused on related court proceedings (while also attending to his full-time employment and part-time care for some of his children). Mr Potts’ position is understandable, but the lodging of an objection is a simple process and there is no filing fee. In any event, even if Mr Potts had provided a compelling reason for his delay, the preferable decision would still have been to refuse his extension of time application given the very poor prospects of success of his objection. The CSA made the preferable decision.

DECISION

The decision under review is affirmed.