Savage and Child Support Registrar and Anor

[2002] AATA 334

DECISION AND REASONS FOR DECISION [2002] AATA 334

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/189

GENERAL ADMINISTRATIVE DIVISION        )          
           Re      JULIE SAVAGE     
  Applicant

And    CHILD SUPPORT REGISTRAR
  Respondent

And            WILLIAM JEDEDIAH
  ELDERKIN

Party Joined

DECISION

Tribunal       Mr. D.W. Muller, Senior Member

Date8 April 2002

PlaceBrisbane

DecisionThe Tribunal affirms the decision under review.

..............(Signed)................................
  D.W. MULLER
  SENIOR MEMBER

CATCHWORDS
CHILD SUPPORT – extension of time to lodge objection
Child Support (Assessment) Act 1989 – s. 98X, 98Z, 98ZD, 98ZE

REASONS FOR DECISION

Mr. D.W. Muller, Senior Member             

1. The applicant, Julie Savage, is the former spouse of William Jedediah Elderkin, the party joined.

2. Mr. Elderkin is a citizen of the United States of America.

3. The underlying dispute concerns the payment by Mr. Elderkin of child support to Ms. Savage.  Ms. Savage seeks to have the assessment made by a court in the United States of America.  Mr. Elderkin seeks to have the assessment made by the Australian authorities.  Ms. Savage seeks to prevent the Australian authorities from dealing with the matter.

4. Ms. Savage sought review of a decision by the Child Support Registrar (CSR) to grant an extension of time to Mr. Elderkin, within which to file an objection to a decision to refuse to accept an application by him for a child support assessment on the basis that he was not a resident of Australia when he made the application.

5. The relevant history of the matter so far as this review is concerned may be summarised as follows:

   (i)In November 2000, Mr. Elderkin filed an application with the CSR for a child support assessment.

   (ii)On 3 May 2001, Ms. Savage lodged an "end form" with the CSR.  She informed the CSR that Mr. Elderkin was not a resident of Australia when he made the application.

   (iii)On 29 May 2001, the CSR decided that Mr. Elderkin was not eligible for a child support assessment on the ground that he was not a resident of Australia on the day of his application.

   (iv)In or about early June 2001, the CSR informed Mr. Elderkin that he was ineligible for a child support assessment, but did not inform him of the reasons for the decision.

   (v)Mr. Elderkin was first made aware of the reason for the decision to declare him ineligible when he spoke by telephone to a representative of the CSR on 19 November 2001.

   (vi)On 26 November 2001, Mr. Elderkin's solicitor filed an objection to the decision of the CSR on 29 May 2001 to refuse to accept his application for a child support assessment, on the basis that he was not a resident of Australia when he made the application.

   (vii)On 4 February 2002, the CSR granted Mr. Elderkin an extension of time within which to lodge his objection, on the basis that he did not receive notification of the decision to refuse his application and that he acted promptly in lodging his objection after being so advised on 19 November 2001.

6. The Child Support (Assessment) Act 1989, provides for an objection procedure and Administrative Appeals Tribunal review of certain decisions.  The provisions of the Act relevant to this review are:

   "98X

   (1)A person may lodge with the Registrar an objection in writing to any of the following decisions of the Registrar:

   ….

   (b)to refuse to accept an application for administrative assessment

   under subsection 30(2);

   98ZTime limits on lodging objection

   General rule

   (1)An objection to a decision under this Part must be lodged by a person within 28 days after service of notice of the decision on the person

   98ZD Application for extension of time

   (1)If the period for lodging an objection under this Part has ended, a person may lodge the objection with the Registrar, together with written application asking the Registrar to consider the objection in spite of the ending of the period.

   (2)The application must state the reasons for the person's failure to lodge the objection within the period required by this Part.

   98ZE  Consideration of applications for extension of time for lodging objections

   (1)If a person applies to the Registrar under section 98ZD in relation to an objection, the Registrar must:

   (a)consider the application;  and

   (b)either grant or refuse the application within 60 days after the application was lodged;  and

   (c)if the Registrar grants the application – deal with the objection under section 98ZC.

   (2)If the Registrar does not make a decision on the application within 60 days after the application was lodged, the Registrar is taken to have refused the application at the end of that period.

   (3)The Registrar must give written notice of the decision granting or refusing the application to the person who made the application.

   (4)The notice must include a statement to the effect that, if the person is aggrieved by the decision, application may, subject to the Administrative Appeals Tribunal Act 1975, be made to the AAT for review of the decision. Except where subsection 28(4) of that Act applies, the notice must also include a statement to the effect that the person may request a statement under section 28 of that Act.

   (5)A contravention of subsection (3) or (4) in relation to a decision does not affect the validity of the decision.

   (6)If an application under subsection 98ZD(1) is granted, the person who made the application is, for the purposes of this Act, taken to have duly lodged the objection to which the application relates.

   (7)A person aggrieved by a decision under subsection (1) may apply to the AAT for review of the decision.

   (8)In subsection (7), decision has the same meaning as in the Administrative Appeals Tribunal Act 1975."

1. It was submitted on behalf of Ms. Savage that the objection of Mr. Elderkin has no merit, that the decision of the CSR on 29 May 2001 was correct, that Mr. Elderkin's objection would inevitably be determined against him and that therefore it was not in the interests of justice to allow him an extension of time within which to pursue his objection.

2. It is certainly true that the substantive merits of a case can be one of the factors considered in determining whether or not to grant an extension of time.  However, the Tribunal notes that in the circumstances of this case, the AAT has no jurisdiction to ultimately entertain a review of the merits.  That is a function of the Family Court.  Under the circumstances the Tribunal declines the invitation to canvass the question as to whether or not Mr. Elderkin was or was not a resident of Australia when he made the application for assessment.

3. The Tribunal is of the view that because Mr. Elderkin acted promptly, and certainly within 28 days, to lodge his objection when he discovered the reason for the rejection of his application, he should be granted the extension of time within which to lodge his objection.

I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D.W. Muller, Senior Member

Signed:         .....................................................................................
           B. Hitchcock, Personal Assistant

Date/s of Hearing  8 April 2002
Date of Decision  8 April 2002
Counsel for the Applicant        Mr. Sacre
Respondent  Mr. King