SRYYYY and Child Support Registrar
[2001] AATA 687
•2 August 2001
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2001] AATA 687
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/86
GENERAL ADMINISTRATIVE DIVISION ) Re SRYYYY Applicant
And
CHILD SUPPORT REGISTRAR
Respondent
DECISION
Tribunal M J Sassella, Senior Member Date2 August 2001
PlaceSydney
Decision The Tribunal notes that the Applicant applied in writing to the Tribunal for an extension of the time for her to make an application to the Tribunal for a review of the decision by the Respondent made on 31 March 2000 and the Tribunal decides that the Applicant is to be allowed an extension of time in which to do this up to 22 January 2001.
The Tribunal sets aside the decision under review and substitutes its own decision that the Respondent is to treat the objection lodged on 8 March 2000 as having been lodged within the time allowed under s 84A(1) of the Act.
[Sgd] M J Sassella
Senior Member
It is noted that the publication of this decision is approved by the Administrative Appeals Tribunal pursuant to s 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth)
CATCHWORDS
CHILD SUPPORT – extension of time in which to lodge an objection to a non-agency payment – maintenance entitlement – payment credited against child support liability - payments to third persons by payer - reasonable explanation for delay in lodging her objection
Child Support (Registration and Collection) Act 1988, ss 30(1), (2), 71(1), 71A, 84A, 89, 91(1), (3), (5), (6)
Administrative Appeals Tribunal Act 1975, ss 29(2)(a), (7), (8), (9), (10), (11)
Taxation Administration Act 1953, ss 14ZL, 14ZU, 4ZW(2), (3), 14ZX, 14ZZ
Income Tax Assessment Act 1936, s 16(4)(a)
Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315
Re Melheron and Australian Telecommunications Commission (1991) 23 ALD 309
Brown v Commissioner of Taxation [1999] FCA 563
REASONS FOR DECISION
2 August 2001 M J Sassella, Senior Member History of the application
1. On 15 June 1995 Peter Kolya, a payer under the Child Support (Registration and Collection) Act 1988 (“the Act”), and former partner of SRYYYY (“the Applicant”), lodged with the Child Support Agency (“the CSA”) a form (a “NAP form”) notifying the CSA that he had made a non-Agency payment (“NAP”) of child support for the benefit of the payee (T3). An amount of $475 was said to have been paid to the Applicant on 7 June 1995 and $5,000 was paid to the Metropolitan Credit Union, this amount being in reduction of an outstanding loan made for the purchase of a Mitsubishi Nimbus motor vehicle.
2. On 28 June 1995 the Deputy Child Support Registrar, for the Child Support Registrar (“the Respondent”) wrote to the Applicant (T4). The Applicant was informed that the Respondent had been notified of the payments referred to above and that she should notify the CSA within 14 days if she did not agree with the information that the Respondent had received. Failure to do so would result in the full amount being credited to the payer’s account.
3. On 18 July 1995 the Respondent wrote to the Applicant informing her that $5,475 had been credited against her maintenance entitlement (T5). If the Applicant had any objections to this payment then she should reply in writing within 28 days of receipt of the letter. This letter was sent to an out of date address.
4. On 27 July 1995 a CSA electronic record noted a phone conversation with the Applicant (T7). The Applicant confirmed that the NAP of $5,475 was for a car that her partner left for her use. She did not want to dispute this as there was “a good chance of reconciliation.”
5. On 28 July 1995 the Respondent again wrote to the Applicant, the letter being identical to that of 18 July 1995 (T6). This letter was sent to the Applicant’s correct address.
6. On 1 March 1997 an agreement was reached between the Applicant and her former partner (T9, folios 42-45). They agreed that the child Eric would live with the father and that the other children would remain with the mother. They agreed to share responsibility for the children’s family and educational needs. They further agreed that Mr Kolya would keep the car and that they would act civilly towards each other, especially in front of the children. Arrangements for access to the children were made, Mr Kolya having access every weekend.
7. On 17 May 1999 consent orders were issued in relation to the separation of the Applicant and her former partner (T9, folios 36-37). The children were to live with the mother and, allowing for access appointed by the mother, the father was not to come within 500 metres of the mother or of her residence.
8. On 10 July 1999 the Applicant made a statement to the effect that her ex-partner had supplied the CSA with wrong information in June 1995 (T9, folio 32). She stated that she had received no economic support from Mr Kolya at all and that she was unaware of any payments made on her behalf.
9. On 18 August 1999 the Respondent wrote to the Applicant’s representative at the Legal Aid Commission (T8). It noted that Peter Kolya had made the payments totalling $5,475 and that these payments were credited against his child support liability. Attached to this letter were a number of documents detailing Mr Kolya’s child support liability.
10. On 28 October 1999 Linda Brooks, a Centrelink social worker, wrote to the CSA (T9, folio 33). She stated that the Applicant became aware of the Respondent’s letter informing her Mr Kolya’s non-agency payment of $5,475 only in July 1999. The Applicant after her separation had been living in temporary residences and women’s refuges and had not received any notification from the Respondent. [The Tribunal observes that this is not entirely accurate. The Applicant received the Respondent’s letter dated 28 July 1995 but not the more helpful letter dated 28 June 1995.]
11. On 12 January 2000 the Applicant wrote to the Respondent (T9, folios 34-35). She reiterated her statement that Mr Kolya had not provided her with the payment outlined in the NAP form of 15 June 1995. She further stated that she did not become aware of the Respondent’s letter to her until July 1999. She had had use of the car for several months after the separation but Mr Kolya repossessed the car from her and has kept it since then. The Applicant relinquished the car to him without knowing that he had included the car in reduction of his maintenance obligations. She requested that the Respondent accept her late objection to the alleged payment, reassess Mr Kolya’s maintenance liability and require him to commence child support at the earliest opportunity. The Respondent did not receive this communication until 13 March 2000.
12. On 3 April 2000 the Respondent wrote to the Applicant notifying her that it had decided to refuse her application for an extension of time in which to lodge her objection to the payment of $5,475 (T10). The Respondent also stated that it was satisfied that the payment was made in accordance with the legislation and the information provided to it. On this date a letter advising the same was also sent to the Applicant’s representative at the Legal Aid Commission (T11).
Background
13. The Applicant has five children – Eric, born on 8 April 1983, Lydia born on 29 November 1985, Ivan (also refereed to as Phillip) born on 27 July 1987, George born on 19 July 1989 and Gloria born on 19 July 1994 (folio 12).
14. An undated affidavit by the Applicant provides a great deal of detail of the history of the couple’s relationship (T9, folios 46-54). The Applicant and her husband arrived in Australia in 1993 as refugees. They separated on 15 May 1995 and the Applicant became an Australian citizen on 21 August 1996. Until April 1997 the Applicant had primary care of the children, Mr Kolya having access to them every second weekend. After a home invasion incident in May 1996 the Applicant and her children moved to Campbelltown and then to Burwood, the children commuting to school in Merrylands. Around this time the Ugandan association attempted to assist the Applicant find housing and encouraged Mr Kolya to allow the Applicant and the children to live with him in Marrickville. About three days after they moved in with him Mr Kolya allegedly forced the Applicant to leave the house. After this the Applicant lived for short times with her youngest daughter at various locations with the assistance of the Ugandan association.
15. The Applicant referred also in this affidavit to a conversation with her daughter Lydia who claimed that Mr Kolya was being physically violent with her son Eric. In June 1996 the Applicant’s children ran away from their father’s home and returned to live with the mother. They complained of being harassed and hit by their father. Through mediation the parents came to an agreement about the future familial arrangements (T9, folios 42-45). After this mediation process Mr Kolya travelled to Uganda, returning in April 1997. The children visited him on his return to Australia and Mr Kolya did not return them to the mother, insisting that he was keeping the children permanently. The Applicant’s sister passed away around this time. Mr Kolya kept the children until January 1999. However, it appears from elsewhere in the document that the youngest daughter, Gloria, remained with the Applicant during this period.
16. On 27 January 1999 Mr Kolya decided that the children would return to live with the mother. He brought them to the Applicant’s home with “very little notice” and told her that he no longer wanted anything to do with them. However, Mr Kolya did not return the daughter Lydia, 13 years of age at this time. He sent her to stay with friends in Melbourne, one of whom allegedly tried to sexually assault her. The Applicant made an application to the CSA for child support payments. Mr Kolya denied that the children were living with the mother and stated to the CSA that he was not liable to pay maintenance.
17. On 15 April 1999 Mr Kolya came to the Applicant’s house to collect the children. He forcibly entered the house and one of the children called the police. After the police arrived Mr Kolya eventually left.
18. The Applicant further stated that Mr Kolya had used violence against her in the past, once when she was pregnant.
19. Much of this information and similar allegations are repeated in another affidavit dated 20 July 2001 (Exhibit A1). In this affidavit the Applicant also claims that she was unaware that the car was to be left with her in lieu of child support payments. She also did not receive the letters from the CSA dated 28 June 1995 and 18 July 1995. However, she does not refer to the letter of 28 July 1995. The Applicant stated that she was generally unaware of the procedures involved in separating from a husband and applying for child support payments in this country, the procedures being totally different from those in Uganda which tend to favour the husband without any formal legal intervention.
The decision under review
20. The decision under review is that of 31 March 2000 (T13). The Respondent noted that the Applicant had been informed of her rights in regard to lodging any objection in July 1995 and in June 1999 but had failed to do so.
21. Notice of this decision was sent to the Applicant and her legal representatives on 3 April 2000 (T10, T11). It was received on 6 April 2000 (T1).
The Tribunal application
22. On 22 January 2001 the Applicant lodged with the Administrative Appeals Tribunal (“the Tribunal”) an application for review of the Respondent’s decision (Exhibit TD2).
23. The application for review was lodged after the expiry of the 28 days allowed in s 29(2)(a) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”). On 22 March 2001 the Applicant lodged with the Tribunal an application for an extension of the time allowed for lodging an application for review of a decision (T1).
24. On 4 May 2001 the Tribunal convened a hearing to determine whether the Applicant would be granted an extension of time for lodging her application for review. That hearing was hampered by the lack of an interpreter. The Tribunal directed that the application proceed to hearing via call-over, with the question of the extension of time to be dealt with at the hearing.
25. On 30 May 2001 the Tribunal held a call-over and included this application. The matter was set down for hearing. It was recognised that the interests of Mr Kolya are potentially affected by this application. The Applicant undertook to write to Mr Kolya to ascertain whether he wished to be joined as a party. That letter was sent on 31 May 2001 (Exhibit A2), however the parties doubt that Mr Kolya received the letter as the Kolya address known to the Applicant may be out of date.
Relevant legislation
26. The following legislative provisions are relevant to this application:
· Child Support (Registration and Collection) Act 1988, ss 10(2), 11, 30(1), (2), 71(1), 71A, 84A, 89, 91(1), (3), (5), (6)
· Administrative Appeals Tribunal Act (“the AAT Act”), ss 29(2)(a), (7), (8), (9), (10), (11)
· Taxation Administration Act 1953, ss 14ZL, 14ZU, 4ZW(2), (3), 14ZX, 14ZZ
· Income Tax Assessment Act 1936, s 16(4)(a)
Child Support (Registration and Collection) Act 1988
“Section 10 Child Support Registrar
10.(1) …
(2) The Commissioner of Taxation shall be the Registrar.
“Section 11 Registrar to have general administration of Act
11. The Registrar has the general administration of this Act.”
“Section 30 Effect of registration
30. (1) If a registrable maintenance liability is registered under this Act, amounts payable under the child support assessment, court order or maintenance agreement under which the liability arises are debts due to the Commonwealth by the payer in accordance with the particulars of the liability entered in the Child Support Register.
(2) In particular, the amounts are payable by the payer at the payment rate entered in the Register under paragraph 26(2)(d) in respect of the periods entered in the Register under paragraphs 26(2)(a) and (b).
…”
“Section 71 Direct payments to payee
71. (1) Subject to section 71D, if:
(a) the payee of an enforceable maintenance liability receives from the payer an amount intended by both the payer and the payee to be paid in complete or partial satisfaction of an amount payable under the liability in relation to the child support enforcement period; and
(b) the payer or the payee applies to the Registrar to have the amount received by the payee treated as having been paid to the Registrar;
the Registrar shall, in spite of section 30, credit the amount received by the payee against the liability of the payer to the Commonwealth in relation to the amount payable under the liability.
…”
“Section 71A Payments to third persons by payer
71A. Subject to section 71D, if:
(a) the payer of an enforceable maintenance liability pays a third party an amount that partially or completely satisfies a debt owed by:
(i) the payee of the enforceable maintenance liability; or
(ii) the payer; or
(iii) both the payer and payee; and
(b) the payer or the payee applies to the Registrar, in the manner specified by the Registrar, to have the amount, or part of the amount, received by the third party treated as having been paid to the Registrar; and
(c) the amount paid, or a part of the amount paid, was intended by both the payer and the payee to be paid in complete or partial satisfaction of an amount payable under the enforceable maintenance liability in relation to the child support enforcement period;
the Registrar must, in spite of section 30, credit the amount, or part of the amount, received by the third party against the liability of the payer to the Commonwealth in relation to the amount payable under the enforceable maintenance liability.”
“Section 84A Objections against credits under sections 71 and 71A
84A. (1) If:
(a) the Registrar, under section 71 or 71A, credits an amount received by a payee against the liability of the payer to the Commonwealth; and
(b) the payee is dissatisfied with the decision;
the payee may, within 28 days after service on him or her of notice of the decision, lodge with the Registrar an objection in writing against the decision.
(2) The objection must state fully and in detail the grounds relied on.”
“Section 89 Applications for extension of time
89. (1) Where the period for the lodgment by a person of an objection under this Division has ended, the person may, even though the period has ended, send the objection to the Registrar together with an application in writing requesting the Registrar to treat the objection as having been duly lodged.
(2) The application shall 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 as required by this Division.”
“Section 91
Consideration of applications for extension of time for lodging objections
91. (1) Where an application is sent to the Registrar under subsection 89 (1) in relation to an objection under this Division, the Registrar shall consider the application, and shall, within 60 days after the application is received by the Registrar, either grant or refuse the application and, if the application is granted, deal with the objection under subsection 87 (1).
(2) If the Registrar does not either grant or refuse to grant the application with that period of 60 days, the Registrar shall be deemed, at the end of that period, to have refused to grant the application.
(3) The Registrar shall serve notice in writing of the decision on the person who made the application.
(4) Where an application under subsection 89 (1) is granted, the person who made the application shall, for the purposes of this Act, be deemed to have duly lodged the objection to which the application relates.
(5) Application may be made to the Tribunal for review of a decision under subsection (1).
(6) In subsection (5), "decision" has the same meaning as in the Administrative Appeals Tribunal Act 1975.”
Administrative Appeals Tribunal Act 1975
“Section 29 Manner of applying for review
…
(2) Subject to subsection (3), the prescribed time for the purposes of paragraph (1) (d) is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after:
(a) if the decision sets out the findings on material questions of fact and the reasons for the decision - the day on which a document setting out the terms of the decision is furnished to the applicant; or
…
(7) The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section).
(8) The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired.
(9) Before determining an application for an extension of time, the Tribunal may, if it thinks fit, require the applicant to serve notice of the application on a specified person or persons, being a person or persons whom the Tribunal considers to be affected by the application.
(10) If a person on whom a notice is served under subsection (9), within the prescribed time after the notice is received by him or her, gives notice to the Tribunal, as prescribed, stating that he or she wishes to oppose the application, the Tribunal shall not determine the application except after a hearing at which the applicant and any person who so gave notice to the Tribunal are given a reasonable opportunity of presenting their respective cases.
(11) The Registrar, a District Registrar or a Deputy Registrar shall cause notice in writing of an application for a review of a decision, in accordance with the prescribed form, to be served on the person who made the decision.”
Taxation Administration Act 1953
“Section 14ZL Part applies to taxation objections
(1) This Part applies if a provision of an Act or of regulations (including the provision as applied by another Act) provides that a person who is dissatisfied with an assessment, determination, notice or decision may object against it in the manner set out in this Part.
(2) Such an objection is in this Part called a taxation objection.”
“Section 14ZU How taxation objections are to be made
A person making a taxation objection must:
(a) make it in the approved form; and
(b) lodge it with the Commissioner within the period set out in section 14ZW; and
(c) state in it, fully and in detail, the grounds that the person relies on.”
“Section 14ZW When taxation objections are to be made
…
(2) If the period within which an objection by a person is required to be lodged has passed, the person may nevertheless lodge the objection with the Commissioner together with a written request asking the Commissioner to deal with the objection as if it had been lodged within that period.
(3) The request must state fully and in detail the circumstances concerning, and the reasons for, the person's failure to lodge the objection with the Commissioner within the required period.
“Section 14ZX Commissioner to consider applications for extension of time
(1) After considering the request, the Commissioner must decide whether to agree to it or refuse it.
(2) The Commissioner must give the person written notice of the Commissioner's decision.
(3) If the Commissioner decides to agree to the request, then, for the purposes of this Part, the objection is taken to have been lodged with the Commissioner within the required period.
(4) If the Commissioner decides to refuse the request, the person may apply to the Tribunal for review of the decision.”
“Section 14ZZ Person may seek review of, or appeal against, Commissioner's decision
If the person is dissatisfied with the Commissioner's objection decision, the person may:
(a) if the decision is both a reviewable objection decision and an appealable objection decision—either:
(i) apply to the Tribunal for review of the decision; or
(ii) appeal to the Federal Court against the decision; or
(b) if the decision is a reviewable objection decision (other than an appealable objection decision)—apply to the Tribunal for review of the decision; or
(c) if the decision is an appealable objection decision (other than a reviewable objection decision)—appeal to the Federal Court against the decision.”
Income Tax Assessment Act 1936
“Section 16 Officers to observe secrecy
…
(4) Nothing in this section shall be deemed to prohibit the Commissioner, a Second Commissioner, or a Deputy Commissioner, or any person thereto authorized by him, from communicating any information to:
(a) any person performing, in pursuance of any appointment or employment by the Commonwealth, any duty arising under any Act administered by the Commissioner of Taxation, for the purpose of enabling that person to carry out any such duty;
…”
Hearing and appearances
27. The Tribunal convened a hearing in this matter in Sydney on 27 July 2001. Ms Jane Weber, solicitor, from the NSW Legal Aid Commission represented the Applicant. Ms Jean Cuthbert, Senior Adviser, Legal Services, in the CSA, represented the Respondent. An interpreter skilled in the Swahili language assisted the Applicant and the Tribunal.
28. The Tribunal had before it the following documents which were admitted into evidence:
· Exhibit TD1 – the section 37 Statement and associated documents, 7 June 2001.
· Exhibit TD2 – Applicant’s application for review lodged with the Tribunal, 22 January 2001.
· Exhibit A1 – Affidavit sworn by the Applicant, 20 July 2001.
· Exhibit A2 – Letter from NSW Legal Aid Commission to Mr Kolya, 31 May 2001.
· Exhibit R1 – CSA records of telephone conversations between CSA officers and the Applicant, 22 April 1996 – 7 January 2000.
First application – Extension of time for lodging application for review by the Tribunal
Findings on material questions of fact with reference to the evidence and other material in support of those findings
29. The Tribunal notes that the period of delay in relation to this application is nine months, from 6 April 2000 (the date of the Applicant’s receipt of notice of the Respondent’s adverse decision) (T10) and the date of the Tribunal’s receipt of the Applicant’s application for review (Exhibit TD2).
30. The Tribunal notes that there is an issue as regards the correct criteria to be applied in considering whether to grant the extension of time. The decision of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315 is generally accepted by the Tribunal as setting down the criteria for considering whether to grant an extension of time. The Tribunal President’s own decision in Re Melheron and Australian Telecommunications Commission (1991) 23 ALD 309 in paragraph 17 (at page 314) adopted the Hunter Valley (supra) criteria. However, the Applicant’s representative argued that these principles should be modified in the child support context. This is because the objection procedure provided for the Act replicates that in the Taxation Administration Act 1953 (“the Administration Act”). She cited the decision of the Federal Court in Brown v Commissioner of Taxation [1999] FCA 563 where Hill J argued that the Hunter Valley (supra) criteria should be adjusted in taxation objection cases.
31. The extent of any validity in the proposition that the child support and taxation objection systems are similar can be gauged, perhaps superficially, by comparing the objections schemes under the Act and under the Administration Act.
Elements of objection procedure The Act The Assessment Act Child Support: Payee may within 28 days of service of notice of decision lodge with Registrar an objection in writing against decision.
Taxation: General code for objections that applies where specific provisions permit objections.
s 84A(1) s 14ZL Child Support: Objection must state fully and in detail the grounds relied on.
Taxation: Person making objection must do so in approved form, must lodge it with the Commissioner, must lodge it within the period set out in s 14 ZW (can be a period of between 60 days and four years, depending on the subject matter), and must state fully and in detail the grounds relied on.
s 84A(2) s 14ZU Child Support: Where period for lodgement by a person of an objection has ended the person may send the objection to the Registrar together with an application in writing requesting the Registrar to treat the objection as duly lodged.
Taxation: If the period within which an objection must be lodged has passed, the person may nevertheless lodge an objection with the Commissioner together with a written request asking the Commissioner to deal with the objection as if it had been lodged within the period.
s 89(1) S 14ZW(2) Child Support: Application shall state fully and in detail the grounds of the application, including circumstances concerning, and reasons for, failure to lodge the objection as required.
Taxation: The request must state fully and in detail the circumstances concerning, and reasons for, failure to lodge the objection as required.
s 89(2) s 14ZW(3) Child Support: Registrar has a 60 day period in which to consider and rule on the application for extension of time.
Taxation: No prescribed period. Commissioner must make a decision.
s 91(1) s 14ZX Child Support: Right of appeal to Tribunal in respect of extension of time decision.
Taxation: Right of appeal to the Tribunal.
s 91(5) s 14ZZ 32. The essentials of the two schemes are the same. The taxation objections system differs in those respects where accommodation is necessary for the range of decision types in that system. This has been handled differently in the Act.
33. Having accepted that there are some distinct similarities between the objection systems in the child support and taxation regimes, it is still possible that the two regimes are distinguishable because of the different purposes behind the two Acts. The Assessment Act is part of a regime which has at its heart the collection of taxation by the Commonwealth from its citizens and others. The Act provides a mechanism to help ensure that children are supported by their parents and that, as between them, the parents contribute appropriately to a child’s material support. The taxation system involves a person and the Commonwealth Government. The child support system regulates in part the rights and obligations inter se between a child’s parents. This difference may mean that the two objection systems need not operate in similar ways.
34. The Tribunal considers, however, that the similarities between the two systems and, especially, in the drafting of the respective provisions, suggests that Parliament saw much in common as between the two systems.
35. Whatever the force of those arguments, the Tribunal considers that they may not extend to the extension of time for lodging an application for review under the AAT Act. The AAT Act applies to applications of every type that can possibly be made to the Tribunal. The Tribunal considers that the Hunter Valley (supra) criteria are sufficiently flexible to do justice in any application for an extension of time lodged with the Tribunal in respect of its own time limits.
36. Addressing the first of the Hunter Valley (supra) criteria, the Tribunal finds that the Applicant has a satisfactory explanation for the delay of over eight months in lodging her application for review with the Tribunal. The Applicant’s evidence (Exhibit A1) was that the delay resulted from the following factors:
· In December 1999 the Applicant moved to an address in Campsie, NSW. She began to have problems with her next door neighbour. The neighbour’s children abused and physically mistreated the Applicant’s children. They also took items belonging to the Applicant’s children. The abuse accelerated in March/April 2000. On 1 April 2000 a neighbouring child jumped on the Applicant’s son and grabbed him by the neck. He squeezed it until it hurt. The attacker swore at the Applicant’s son. A few days later another neighbouring child hit the Applicant’s son, George, on the jaw causing him to fall. On 22 April 2000 the Applicant was arriving home and parking her car when one of her children ran up to her as he was chased by a neighbouring child. The neighbouring child hit the Applicant’s son.
· On 11 and 13 May 2000 the police attended because of disputes between the two families.
· On 16 May 2000 a child from the neighbouring family harassed the Applicant’s youngest daughter at school. She became afraid to attend school.
· In April-May 2000 the Applicant’s daughter, Lydia (now aged 15), began to attract police attention. She was stopped once on suspicion of carrying drugs. In August 2000 she was arrested for travelling without a train ticket and for offensive behaviour and assault. She appeared in court three times between 28 August 2000 and 28 October 2000 and was convicted.
· The Applicant suffered from depression in 2000.
· The Applicant made an appointment to see the Legal Aid Commission when Lydia’s criminal proceedings ended. The appointment was set for early December 2000.
· The Applicant decided to appeal to the Tribunal, however the Legal Aid Commission delayed lodging the application for review until 22 January 2001 because of pressure of other work and short staffing over Christmas.
37. This evidence was provided in the form of a sworn affidavit. The Respondent’s representative did not wish to cross-examine the Applicant on her affidavit. The Respondent did, however, argue that the Applicant could and should have seen her solicitor in 2000 despite her family problems. The Tribunal has considered the Respondent’s argument but has concluded that the constant and uncontrollable nature of the problems experienced by the Applicant in 2000 were such that she was understandably distracted from embarking on the complex process involved in seeking to have child support payments restored to her.
38. In relation to the next Hunter Valley (supra) criterion number two, the Tribunal finds that the Applicant did not agitate her case in forums other than the Tribunal during the period of delay in applying to the Tribunal. The Applicant’s representative conceded this and said it was for the same reasons as her failure to apply to the Tribunal. The Tribunal does not consider, however, that this is necessarily fatal to the Application’s quest for an extension of time.
39. In relation to the next Hunter Valley (supra) criterion, the Tribunal finds that the Respondent would experience no prejudice if the Applicant is granted an extension of time. Ms Cuthbert rightly conceded this. The Tribunal considers that the period of delay is not great and that the Respondent appears still to possess all of its relevant files. The Applicant’s argument that these have been enriched from the processes since January this year would seem correct.
40. As regards the merits of the Applicant’s case, another Hunter Valley (supra) criterion, the Applicant argued that these were good. The Respondent said that the Applicant has an arguable case. The Tribunal finds that the potential merits of the Applicant’s case do not tell against her in the instant application.
41. The interests of Mr Kolya, who was not present before the Tribunal and who is not a party, were considered. These could be prejudiced but to a very limited extent if the extension of time to bring the primary matter to the Tribunal is the issue under consideration. He would not be adversely affected until several steps had been completed, ie entertainment of the application by the Tribunal, a Tribunal decision in the Applicant’s favour, an objection process that results in an outcome favourable to the Applicant. The absent Mr Kolya would have every opportunity to become involved in any objection process, in any event. The instant matter is procedural and does not affect substantive rights. The Tribunal considers that it is not necessary to deny the Applicant a remedy at this stage because of Mr Kolya’s interests.
42. These findings lead inexorably to the result that the Applicant is to be granted an extension of time within which to apply to the Tribunal. That extension of time is from 4 May 2000, the last date on which the Applicant could have lodged an appeal to the Tribunal and been within the time limit, until 22 January 2001, the date on which the Tribunal received the application for review.
Second application – Extension of time for lodging objection with the Registrar of Child Support (the Respondent)
Findings on material questions of fact with reference to the evidence and other material in support of those findings
43. The question of the criteria to be applied in considering whether to extend the time for lodgement of a child support objection again arises in respect of this review. This time, however, the case for the application of the approach adopted by Hill J in the Brown case (supra) is stronger. The Tribunal is now addressing the possibility of an extension in relation to an objection, not an application to the Tribunal.
44. The Tribunal notes that Hill J’s comments are to be found in paragraphs 37-57 of his reasons for judgment. The adjustments he would recommend to Hunter Valley (supra) in the objection context are:
· In considering the explanation for delay “the decision maker should take into account all the circumstances of the particular case against the background that Parliament has enacted a procedure to permit extensions of time being granted. An extension should be granted where the justice of the case requires. … Neither the Commissioner nor the Tribunal on review should approach the question of determining whether an extension of time should be granted on the basis that it will only be in an exceptional case that an extension is granted” (paragraph 47). This undercuts Wilcox J’s starting point in Hunter Valley (supra) which was a prima facie rule that proceedings commenced outside the period will not be entertained (1984) 7 ALD 315, 320.
· The requirement that an applicant agitate the dispute outside, in this instance, the objection process becomes less important in the taxation context where the Commissioner retains access to all the information he or she had at hand when the original decision was made (paragraph 48). This is not a context where problems can arise because recollections become dimmer. Hill J makes the separate point too that the taxpayer is likely to bear the brunt of any faded recollections.
· The matter of prejudice to the respondent resulting from a delay in lodging an objection is also minimised by Hill J (paragraph 51). He sees little other than administrative inconvenience arising from delay in lodging an objection. Indeed, in paragraph 55 Hill J might be taken to have favoured the view that the absence of prejudice to the respondent means that an extension ought to be given.
· As regards the merits of the objector’s case, the applicant need show only that that he or she has an arguable case (paragraph 56). He says, “No doubt if the objection on the face of it is one which is frivolous or bound to fail as a matter of law it would be a futility to permit an extension of time to enable it to be considered. But this points to quite a low threshold.”
· As regards considerations of fairness as between an applicant and other taxpayers, Hill J says in paragraph 57, “That is clearly a relevant matter when a public law issue is involved. It will seldom have any significance in the context of income tax assessments. In the present case the Tribunal appears to have considered that it should take into account persons who decided not to object to assessments. But there can here be no question of fairness arising so far as other taxpayers are concerned. They are entitled to lodge objections and if out of time to seek an extension of time in which to lodge their objections, just as Mr Brown is.”
45. The Tribunal is not convinced that the Brown (supra) criteria are applicable to objections lodged out of time in the child support context. The existence of another affected party, in this case the payer, is a major point of distinction. In the Tribunal’s view the context here is far more akin to that “when a public law issue is involved”, to borrow a phrase from Hill J.
46. However, the Tribunal considers that the Applicant has a reasonable case even if the Hunter Valley (supra) criteria are applied.
47. The Tribunal finds that the Applicant has a reasonable explanation for delay in lodging her objection. The time involved in quite lengthy, some five years. She was notified of the decision to credit the NAPs on or soon after 28 July 1995 (T6). An effective letter of objection was received by the Respondent on 13 March 2000 (T9).
48. The Tribunal finds that the following factors constitute the Applicant’s satisfactory explanation.
· On 28 June 1995 the Respondent wrote to the Applicant informing her of the NAPs that Mr Kolya, the payer, said that he had made to her and to a third party finance body and which he intended be credited against his child support liability (T4). It is common ground that this letter, sent to an address in Blacktown, was not received by the Applicant who had moved to Merrylands. It seems that the Applicant may have first seen this letter in July 1999. This is the situation according to the social worker who wrote to the CSA on behalf of the Applicant on 28 October 1999 (T9, folio 33). This was the only letter that fully explained the break-up of the $5,475 credit. The later letter, dated 18 July 1995 (T5) informed her that the credit had been accepted. The Respondent became aware that the Applicant had moved house and provided a copy of that letter on 28 July 1995 (T6) sent to the correct new address. It should be noted that a CSA record (T7) indicates that she understood that the car was provided to her as maintenance. In her affidavit (Exhibit A1) the Applicant explains that in her telephone conversation with the CSA she did no more than agree that the car was in her possession. She does not recall any suggestion that it was to be treated as a replacement for child support payments.
· The letter in T6 advised the Applicant of the credit and of her right to lodge an objection but its terms were not very clear, especially to a person with limited English language skills and who had recently arrived from Uganda, a nation with very different legal and cultural mores from those of Australia. Several quotes from the letter will demonstrate that it is not very clear.
· It commences by stating, “This letter is to advise you that an amount of $5,475.00 has been credited against your maintenance account.” This sentence does not clearly indicate that it means that the Applicant will not have access to any further child support payments for a considerable period of time. The Applicant states in an affidavit (Exhibit A1), “When I did receive the letter of 28 July 1995 advising me that $5,475 had been credited against my child support. I was aware that it referred to the provision of the car. I did not understand at the time what it was I was required to do. I thought the [CSA] would understand that a car could not be child support. The system was strange to me and I was not aware of exactly what I had to do to contest the credit being made. … The letter said if I disagreed with the decision I could write to the Agency. But I did not know what to write or what my grounds would be. I was still feeling the effects of separation, confused and that this was yet another burden on me.”
· The Respondent’s letter then states that “The Child Support Agency was originally notified of this payment by the liable parent on 28th June 1995.” The Applicant may not have understood the meaning of “liable parent”. It would have been preferable if Mr Kolya had been mentioned by name. The letter says that the liable parent would be advised that all future payments were to be made direct to the CSA in accordance with the “Notice of registration”. This is bureaucratic language that might be quite alien to a recipient such as the Applicant.
· The next paragraph is potentially helpful and crucial, but is again expressed very bureaucratically. “Section 71 of the Child Support (Registration and Collection) Act 1988 states that both parties must have intended the amount to be paid in complete or partial satisfaction of maintenance. Should one party disagree to the amount, then that amount will not generally be credited.” The letter proceeds to advise, “Should you disagree with the Agency’s decision you have the right to object pursuant to Section 85 of the Child Support (Registration and Collection) Act 1988. Your objection must be in writing and be received within 28 days of the date of this letter. You should set out fully the grounds on which you object.” The Applicant was unaware of the constitution of the $5,475.00 credit and what it meant for her child support payments. She was in no position to understand what it is that she and “the liable parent” must have intended. She was unaware of precisely what “decision” the Respondent had made. She was told how to object but the requirements would have appeared quite onerous, even if she understood what it was all about.
· The letter’s final paragraph would have further mystified and deterred her. This reads, “To support your claim [perhaps ‘objection’ would have been a better choice of word – Tribunal] you should provide proof, such as a receipt, that clearly states that the intention at the time, was that the payment made was in lieu of maintenance. [The Applicant disputes that there ever was a payment and the Applicant was not telling the Respondent at the time that the NAPs were in respect of maintenance so this sentence is inappropriate – Tribunal.] The evidence should have been signed by the other party at the time the payment was made. You should enclose this proof with your letter of objection so that all the evidence can be considered and a decision made on the balance of probabilities.”
· The Applicant explained the situation in Uganda when a married couple separate (Exhibit A1). Essentially the husband keeps the children and the wife finds work and pays maintenance to the husband. The Applicant confirmed this in her oral evidence. A system such as Australia’s which facilitates child support payments in favour of a custodial mother is quite foreign to her. This made it more difficult for her to understand her rights.
· The Applicant gave oral evidence that she was isolated in Australia in 1995. She had been here since 1993 and had made no friends. She had no connections in the Ugandan community in Sydney. She had no one to help her understand official letters she received.
· The Applicant gave oral evidence that she had no understanding of the Australian legal system. She was unaware that she could approach the Family Court or a State court with family law jurisdiction to recover her children when their father took them in April 1997.
· The Applicant gave oral evidence that she had not understood the notion of an objection as discussed in the letter at T6. She first understood what it meant and how to make an objection in 1999 and she acted quite promptly. Exhibit R1 indicates that the value of lodging an objection was first made clear to the Applicant by telephone on 22 June 1999. On 12 July 1999 a CSA computer entry records that the Applicant has written and what she has provided may need to be treated as an objection. On 28 July 1999 a CSA computer entry records that the Applicant has been told that she needs to lodge a request for an extension of time although the CSA officer says he or she is not certain that the Applicant understood why an explanation for the delay was necessary. By 14 October 1999 the Applicant was still talking with the CSA but had not lodged a request for an extension of time. The Tribunal notes that it was the Applicant’s inability to deal with the requirement to seek and justify an extension of time that delayed the matter in 1999. She was agitating the issue with the CSA from the middle of that year.
· In the second affidavit (Exhibit A1) the Applicant explained her dealings with the CSA in 1999. She said she understood that she would be given time to gather information to make her objection properly. She approached the Legal Aid Commission in June 1999. The Legal Aid Commission received a letter from the Respondent in August 1999 (T8) which was not forwarded to the Applicant until 8 October 1999. The Applicant saw a social worker at Centrelink who wrote to the Respondent on 28 October 1999 in an attempt to help explain the Applicant’s concerns (T9, folio 33).
· The Applicant wrote a letter to the Respondent dated 12 January 2000 which set out her objection and reasons for delay (T9, folios 34-35). The Legal Aid Commission did not send this to the Respondent until 8 March 2000 (T9).
· The Applicant swore in an affidavit (Exhibit A1) that her husband was violent, physically and verbally, to the Applicant and the children throughout the marriage. He hit the children with sticks and he hit the Applicant in the head with objects such as shoes. He improved in Australia but was still verbally abusive and domineering. She wrote, “I became accustomed to doing what he wanted to avoid trouble to myself and my children.”
· In April 1996 Mr Kolya repossessed the car. She told the CSA of this (Exhibit R1). A CSA record suggests that the CSA was prepared to leave the matter to the Applicant to raise with the police.
· In May 1996 the Applicant suffered a home invasion (Exhibit T9, folio 47). The child Eric was at home. He was aged 13 ½. He was unwell and home from school. The Applicant had to see a solicitor about family law matters. The invaders were after cash. The police and Salvation Army helped with temporary accommodation. The family group shifted accommodation several times in the next few weeks. The Applicant became physically sick.
· At about this time the Ugandan Association intervened to assist. This led to the Applicant and the children moving in with Mr Kolya. After a few days Mr Kolya wanted the Applicant to leave. He ejected her physically at 2.00 am one morning.
· The Applicant was again assisted by the Ugandan Association. Her youngest child was restored to her and she found accommodation. This accommodation was short term and she and her daughter shifted often in the next months. She found stable accommodation in August 1997.
· Meanwhile her daughter Lydia had told her that Mr Kolya was assaulting the child Eric. Lydia reported that Mr Kolya had also beaten Lydia and that he had hit the others and thrown them to the floor. The children returned to live with the Applicant in about June 1996.
· In April 1997 Mr Kolya took the children, except for Gloria, the youngest, during an access visit and he held them until January 1999 when he returned all of the other children except for Lydia. Lydia was sent to live with Mr Kolya’s friends in Melbourne.
· In September 1998 Mr Kolya took the children to Melbourne without notifying the Applicant. While in Melbourne a male person had attempted to sexually assault Lydia. Mr Kolya later sent Lydia back to Melbourne. The Applicant went to Melbourne and brought her back in February 1999. Lydia has been with the Applicant since that time.
· In 1999 Mr Kolya became aware that the Applicant was agitating with the CSA for child support payments. On 5 April 1999 he arrived at the Applicant’s house to take the children. He was forcing his entry against the Applicant. One of the children telephoned the police who attended and spoke with Mr Kolya who left. The Applicant in her affidavit in T9 provided examples of instances when Mr Kolya had used physical violence against her.
49. The Tribunal is satisfied that the combination of the Applicant’s non-English speaking background, Ugandan cultural background, ignorance of the Australian legal system, difficulty understanding how to respond to CSA letters, her tumultuous family background, the disturbing experiences undergone by her and her immediate family between 1995 and 2000, and some delays on the part of her solicitors constitute in their totality a reasonable explanation for the Applicant’s delay in lodging an objection in the proper form.
50. Ms Cuthbert put to the Tribunal that the sense of Wilcox J’s principles in Hunter Valley (supra) requires that there be something special in the applicant’s case to justify the exercise of the discretion in the applicant’s favour. She could see no such special feature in this case. The Tribunal does not accept this. The Tribunal considers that the factors discussed above are sufficiently strong to justify an exercise of the discretion in the Applicant’s favour.
51. The Tribunal finds that the Applicant did little to advance her concerns between 1995 and 1999. However, she did contact the CSA in 1996 (Exhibit R1) when Mr Kolya took the family car but this was to no avail. Once she became better apprised of what she needed to do in 1999 she took concerted action with the CSA and pursued matters with Centrelink and the Legal Aid Commission. The Tribunal accepts Ms Weber’s submission that the Applicant was unable to advance her concerns earlier for reasons similar to those explaining her delayed action in objecting.
52. Ms Cuthbert argued that the Applicant was apprised of the Respondent’s decision in 1996 (as part of the interaction between the CSA and the Applicant in 1996 mentioned by the Tribunal above). She said that the Applicant was tardy in lodging her objections and requests for extensions of time. She said too that the Applicant’s personal circumstances did not prevent her from communicating with the CSA in 1999 and eventually lodging the necessary materials.
53. As said above, the Tribunal sees some force in all of these arguments, however it has concluded that the combination of problems confronting the Applicant effectively precluded her from doing more to push her objections in the appropriate way in a more timely fashion.
54. The Tribunal finds that there will be no prejudice to the Respondent if the Respondent is required to act on the objection at this stage. Ms Cuthbert did not disagree.
55. The Tribunal notes Ms Weber’s submission that it would in no way be contrary to the broader public interest to require that the Respondent entertain the objection. On the contrary, Ms Weber said, it would be in the public interest to see child support obligations enforced. The Tribunal accepts Ms Weber’s submission in this respect.
56. The Tribunal noted Ms Cuthbert’s arguments that the child support scheme is designed to ensure that child support is available in a timely way as and when most needed. Retrospective amendments of the register generate debts and result in more problems in the process of trying to resolve old problems. The Tribunal considers that these are factors that go to the fundamental question of whether the discretion should be exercised. Such factors form the hurdle an applicant must clear if the discretion to extend time is to be exercised in the applicant’s favour. For reasons given earlier, the Tribunal’s assessment in the instant application is that the Applicant’s explanation weighs heavier in the balance than do these considerations.
57. Ms Cuthbert reminded the Tribunal of the interests of the absent Mr Kolya in relation to the decision to be made by the Tribunal. The Tribunal is cognisant of Mr Kolya’s concerns. However, Ms Cuthbert was able to assure the Tribunal that, in the event that the Respondent is to entertain the Applicant’s objection, reasonable steps would be taken by the CSA to contact Mr Kolya and give him an opportunity to be heard. The Tribunal notes that ss 10(2) and 11 of the Act, in conjunction with s 16(4)(a) of the Income Tax Assessment Act 1936, permit the Commissioner of Taxation to provide information to the Respondent from the Australian Taxation Office database. This may assist in locating Mr Kolya, a task that was beyond the resources of the NSW Legal Aid Commission. The Tribunal is confident that Mr Kolya’s interests will be appropriately respected if the Respondent entertains the Applicant’s objection.
58. The parties both agreed that the Applicant has an arguable case in relation to the merits of her objection. The Tribunal agrees and so finds.
Conclusion
59. The Tribunal has decided to grant an extension of time to the Applicant in order to permit the Tribunal to hear her application for review of the Respondent’s decision.
60. The Tribunal has decided that the correct or preferable decision by the Respondent would have been to provide the Applicant with an extension of time within which to lodge an objection to the Respondent’s registration of Mr Kolya’s NAPs.
Decision
61. The Tribunal notes that the Applicant applied in writing to the Tribunal for an extension of the time for her to make an application to the Tribunal for a review of the decision by the Respondent made on 31 March 2000 and the Tribunal decides that the Applicant is to be allowed an extension of time in which to do this up to 22 January 2001.
62. The Tribunal sets aside the decision under review and substitutes its own decision that the Respondent is to treat the objection lodged on 8 March 2000 as having been lodged within the time allowed under s 84A(1) of the Act.
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member.
Signed: .....................................................................................
AssociateDate of Hearing 27 July 2001
Date of Decision 2 August 2001
Solicitor for the Applicant Ms J WeberRepresentative for the Respondent Ms J Cuthbert
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