Soldan and Child Support Registrar - [2002] AATA 302

DECISION AND REASONS FOR DECISION [2002] AATA 302

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2001/354

GENERAL ADMINISTRATIVE DIVISION       )
           Re      STEVEN SOLDAN
  Applicant
           And    CHILD SUPPORT REGISTRAR
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date2 May 2002
PlaceAdelaide

Decision      Pursuant to section 43 of the Administrative Appeals Act 1975, the Tribunal affirms the decision under review.
  (Signed)
  J.A. KIOSOGLOUS

(Senior Member)

CATCHWORDS
CHILD SUPPORT - application for extension of time within which to lodge objection to refusal of application for administrative assessment.
Child Support (Assessment) Act 1989: ss. 98X, 98Z, 98ZC, 98ZD, 98ZE

REASONS FOR DECISION

2 May 2002 Senior Member J.A. Kiosoglous MBE

This was an application for review by Mr Steven Soldan ("the applicant") for review of a decision of the respondent dated 16 June 2001 (T7/28) to consider an objection by Ms Jane Morann lodged outside of the 28 day time limit as provided by section 98Z of the Child Support (Assessment) Act 1989 ("the Act").
The Tribunal received into evidence the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T9), together with four exhibits, one lodged by the applicant (Exhibit A1) and three by the respondent (Exhibits R1-R3). In addition, the Tribunal heard evidence from the applicant, and the respondent called Ms Jane Robyn Morann and Mr Martyn James Christopher, an employee of the Child Support Agency, to give evidence on its behalf. The applicant represented himself and the respondent was represented by Ms Nerida Ware, of counsel.
The applicant at the outset and throughout the hearing attempted to include issues not relevant to this hearing and was repeatedly informed that this Tribunal would only concern itself with the issue before it. In issue is whether or not the respondent should consider Ms Jane Morann's written application asking the respondent to consider her objections lodged in relation to the decision of the respondent dated 2 May 2001, despite it being lodged outside of the 28 day time limit stipulated in section 98Z of the Act.
The applicant and Ms Morann were well-known to each other having lived together in a de facto relationship from 1992 until finally ceasing to do so in August 1999. A son, Aleck, was born as a result of the relationship. Aleck is now approximately nine and a half years of age.
On 2 March 2001, Ms Morann lodged a "form 101" requesting the respondent to make an administrative assessment of child support for Aleck, a child who was partially in her care and partially in the care of the applicant. The respondent considered this and on 2 May 2001 (T4/12) notified Ms Morann by letter of the respondent's child support assessment for the period 1 March 2001 to 31 May 2002 ("the assessment"). Similarly, the applicant was also advised (T3/9).
Ms Morann was unhappy with the administrative assessment made and hence exercised her right to object. Sub-section 98X(1)(c) of the Act enables a person to lodge an objection as to the particulars of an administrative assessment. However, sub-section 98Z(1) of the Act requires such an objection to be lodged within 28 days after service of notice of the decision.
The Tribunal was informed that Ms Morann telephoned the respondent on 14 May 2001 and sought clarification of the assessment. She did not lodge her objection in relation to the assessment until 14 June 2001 being some thirteen days outside of the 28-day time limit stipulated.
In the letter of objection Ms Morann also included an explanation regarding her confusion over the assessment and asked for the respondent to take that into account with respect of her failure to comply with the 28-day time limit. The respondent accepted this as being an application by her pursuant to section 98ZD of the Act, requesting an extension of time within which to lodge the objection.
The respondent determined on 16 June 2001 (T7/28) that it would grant the extension of time to consider her objection notwithstanding it had been lodged after 28 days from the service of the notice. It then proceeded to advise the applicant by letter dated 26 June 2001 (T8/29) that Ms Morann had lodged an objection to the Child Support Registrar's decision of 2 May 2001. However, the respondent's letter to the applicant not only set out the basis for Ms Morann's objection but it also incorrectly recorded the objection to another matter relating to the applicant and being case number 435024 in lieu of the correct case number 1161921. In so doing the respondent also incorrectly referred to the assessment of child support which was being objected to as the period 12 July 2000 to 11 October 2001, the correct period being 1 March 2001 to 31 May 2002.
The respondent corrected this by letter dated 15 August 2001 (T9/30-31) addressed to the applicant wherein it correctly advised him that Ms Morann had only lodged an objection in relation to case number 1161921 which related to the period 1 March 2001 to 31 May 2002. He was advised that he had 28 days in which to respond to the respondent to the objection. In this same letter he was further advised that Ms Morann had been granted by the Child Support Registrar an extension of time within which to lodge her objection. As to this he was advised that if he disagreed with the granting of the extension of time by the respondent he could seek a review of this decision by the Administrative Appeals Tribunal ("AAT").
The applicant lodged his application with the AAT on 20 September 2001 (T1/3-4) seeking a review of the Child Support Registrar's decision of 15 August 2001 relating to the granting of the extension of time to lodge the objection by Ms Morann. The date on which he lodged his application with the AAT was outside of the prescribed 28-day time limit. Hence together with the application for review he lodged an application for extension of time within to lodge this application. The AAT issued a direction on 24 September 2001 (T1/5) granting the applicant an extension of time to 20 September 2001 for the making of an application for review of the respondent's decision.
As previously stated the applicant in giving his evidence referred, inter alia, to matters not relevant before this Tribunal. The Tribunal addresses those matters directly relevant to the matter before it. This was a very simple matter and could have been resolved without proceeding to hearing. However, the applicant was determined to proceed notwithstanding the circumstances. In fact it was pointed out to the applicant that the very same right he sought and obtained by way of an extension of time from this Tribunal he chooses to deny Ms Morann before the Child Support Registrar. Notwithstanding that this was pointed out to the applicant, it had no impact on him.
The Tribunal is satisfied and so finds that the Child Support Registrar acted within the powers granted to him by the Act and correctly allowed Ms Morann the extension of time. Furthermore, there is no provision in the legislation which directs the Registrar to communicate with other interested parties and advising them of the intention to grant the said extension of time.
The Tribunal also noted with interest that the applicant was advised by the respondent that he was able to seek a review by the respondent of the respondent's decision of 15 August 2001. This is quite well outside the 28 day limit and yet the respondent has indicated that if the applicant did seek a review then his request would be given favourable consideration. At the date of the hearing the applicant had taken no such action.
The Tribunal in arriving at its decision has taken all the relevant evidence into account including the oral evidence of the applicant, Ms Morann and Mr Christopher and the documentary evidence.
The Tribunal not only considered the evidence but also the relevant legislation, including:
(a)sub-section 98X(1)(c) which entitles a person to object to the "particulars of an administrative assessment";
(b)sub-section 98Z(1) which requires the objection to be lodged within 28 days after service of notice of the decision (the Child Support Registrar, however, allows for postal delay and hence applies a time limit of 33 days in total);
(c)section 98ZD which enables a person to seek an extension of time to lodge an objection outside the time limit imposed by sub-section 98Z(1);
(d)section 98ZE which provides that if the Registrar grants an application for extension, the objection will be dealt with under section 98ZC; and
(e)section 98ZC which requires the Registrar to consider the objection and any notice in support or opposition to the objection lodged by the other party and make a decision within 60 days after the notice was lodged.
The Tribunal is satisfied and so finds that the Registrar in the exercise of his authority acted in accordance with the provisions of the legislation. Until this Tribunal reaches a decision the Registrar has not considered Ms Morann's application of objection.
For the reasons outlined and on its findings the Tribunal is satisfied that Ms Morann provided a satisfactory explanation for late lodgement of the objection and that further the applicant has suffered no prejudice by reason of the lateness of the objection. The Tribunal is hence further satisfied that it was appropriate for the respondent to agree to consider the objection.
Accordingly, the Tribunal affirms the decision of 16 June 2001 by the Child Support Registrar to grant the extension of time to Ms Morann.
I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE
Signed:   (Signed)
  Barbara Armstrong, Associate
Date of Hearing  1 March 2002
Date of Decision  2 May 2002
Counsel for the Applicant        In person
Solicitor for the Applicant         -
Counsel for the Respondent    Ms Nerida Ware
Solicitor for the Respondent    Australian Government Solicitor