Schlabach and Child Support Registrar (Child support)

[2025] ARTA 508

Schlabach and Child Support Registrar (Child support) [2025] ARTA 508 (18 February 2025)

Applicant:Ms Schlabach

Respondent:  Child Support Registrar

Tribunal Numbers:   2024/SC028975 & 2024/SC029036

Tribunal:General Member P Jensen

Place:Brisbane

Date of Decisions:  18 February 2025

Decisions:

Ms Schlabach’s applications for extensions of time in which to apply for review of objections officer’s decisions dated 16 June 2023 are refused.

CATCHWORDS

CHILD SUPPORT – applications for extensions of time to apply to tribunal – father’s applications to have payments credited as prescribed non-agency payments allowed in part after objections – no requirement for intention by both parents – mother’s applications for review and extensions of time – arguable case but no satisfactory explanation for long delay – applications 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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.

Statement of Reasons

1. Ms Schlabach and [Mr A] are the parents of two children. A child support case was registered with Services Australia – Child Support (“Child Support”) from 21 July 2021. [Mr A] was assessed as the parent who was liable to pay child support. His child support payable was registered for collection by Child Support, i.e. it was a liability that he owed to Child Support, and not to Ms Schlabach. He could discharge that liability by making payments directly to Child Support. He could also make payments to third parties and, if certain requirements were satisfied, the payments could be credited against his liability to Child Support. Such payments are commonly called non-agency payments.

2. On 5 March 2023, [Mr A] applied to have 18 rental payments, each of $3,910.71, credited as non-agency payments, and he also applied to have payments in respect of the children’s psychological treatment credited as non-agency payments.

3. Section 71A of the Child Support (Registration and Collection) Act 1988 (“the Registration Act”) allows a payment to be credited as a non-agency payment if certain requirements are satisfied. One of the requirements is that both parents intended the payment to be credited as a non-agency payment. Ms Schlabach informed Child Support that she had not intended for any of [Mr A]’s payments to be credited as non-agency payments. On 7 March 2023 an original decision-maker decided to not credit any of the payments as non-agency payments under section 71A of the Registration Act. The original decision-maker did not consider whether the payments could be credited under section 71C of the Registration Act. Both parents were notified of the original decision-maker’s decisions. In respect of each decision, both parents had a right to object to the decision. To do so within time, they needed to do so within 28 days of being notified of the decision. [Mr A] promptly objected to both decisions. He submitted that the payments should have been credited under section 71C of the Registration Act.

4. Section 71C of the Registration Act also contains a number of requirements, including requirements in respect of the parents’ recorded care of the children and a requirement that the payment fell within one of a number of prescribed categories of payments. To distinguish payments credited under section 71A from payments credited under section 71C, payments credited under section 71C are commonly called prescribed non‑agency payments. Importantly, the requirements for a prescribed non-agency payment do not include a requirement that both parents intended the payment to be credited.

5. On 16 June 2023 an objections officer allowed [Mr A]’s two objections. In respect of the rental payments, the objections officer decided to credit payments totalling $29,330.40 as prescribed non-agency payments. In respect of the psychology fees, the objections officer decided to credit payments totalling $7,115.00 as prescribed non‑agency payments.

6. On 16 June 2023, Ms Schlabach was electronically notified of the objections officer’s decisions. She had a right to apply for further review. To do so within time, she needed to do so within 28 days of being notified of the decisions: section 29 of the Administrative Appeals Tribunal Act 1975. Child Support’s covering letter informed Ms Schlabach of her right to object and the need to do so within 28 days.

7. On 14 October 2024 the Administrative Appeals Tribunal was replaced by the Administrative Review Tribunal (“the Tribunal”). On 5 December 2024, Ms Schlabach applied to the Tribunal for review of the objections officer’s decisions and for extensions of time in which to apply for review: sections 18 and 19 of the Administrative Review Tribunal Act 2024.

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

   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 …

9. Ms Schlabach stated in her written applications:

   I have been extremely unwell, with ptsd due to DV from my marriage to the other party. Child support showed me via my app, only a few weeks ago, that they approved non-agency payments on 3/5/2023 due to agreement that I agreed to the payments being in lieu of child support. I never agreed to the non-agency payments, and it was only after I recently complained to child support that they said there was probably a mistake made approving the non-agency payments. […]

10. On 25 July 2023, Child Support accepted Ms Schlabach’s estimate of her 2023–24 adjusted taxable income. It appears that she had dealings with Child Support after the objections officer had made their decisions. Ms Schlabach did not provide any medical evidence in support of her applications to the Tribunal, but I am satisfied that her medical conditions did not prevent her from promptly taking steps to seek further review (which, at the time, would have meant lodging applications for review with the Administrative Appeals Tribunal).

11. As noted earlier, Child Support decided on 5 March 2023 to not credit the payments that [Mr A] had applied to have credited. Child Support accepted Ms Schlabach’s evidence that she had not agreed to the payments being credited. On objection, an objections officer decided to credit some payments despite the fact that Ms Schlabach had not agreed to the payments being credited. With respect, Ms Schlabach is mistaken in her belief that payments were credited because Child Support concluded that she had agreed to them being credited.

12. According to Child Support’s records, the requirements of section 71C of the Registration Act were satisfied in respect of the payments that the objections officer decided to credit. However, in addition to being satisfied that the mandatory requirements were satisfied, the objections officer also needed to consider whether a payment “ought not be credited”: section 71D of the Registration Act. The objections officer concluded that “[i]n light of the information and evidence received”, certain payments were to be credited as prescribed non-agency payments. The objections officer did not specifically refer to the discretion in section 71D. It is arguable that the objections officer did not properly consider section 71D. Further, even if the objections officer did properly consider section 71D, a different decision-maker on further review might reasonably reach a different conclusion as to how the broad discretion in section 71D should be exercised. Ms Schlabach has arguable cases in respect of her substantive applications for review. Such conclusions can often be reached when applications for review involve the broad discretion in section 71D.

13. However, Ms Schlabach’s applications for review are approximately one and a half years out of time. She has not provided a satisfactory explanation for her delay. It would not be reasonable in all the circumstances to grant Ms Schlabach’s extension of time applications after such a long delay: section 19 of the Administrative Review Tribunal Act 2024.

DECISION

Ms Schlabach’s applications for extensions of time in which to apply for review of objections officer’s decisions dated 16 June 2023 are refused.