Stefan and Child Support Registrar (Child support) - [2020] AATA 1394

Stefan and Child Support Registrar (Child support) [2020] AATA 1394 (28 February 2020)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2019/SC017947
APPLICANT:  Mr Stefan
OTHER PARTIES:  Child Support Registrar
TRIBUNAL:Member S Letch
DECISION DATE:  28 February 2020
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Stefan is to be granted an extension of time to object to the decision of 27 August 2019.

CATCHWORDS

CHILD SUPPORT – refusal to grant an extension of time to object – reasonable explanation for the delay – some prospect of success – minimal prejudice to other party – decision under review set aside and substituted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed 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

BACKGROUND

Mr Stefan has been assessed by the Child Support Agency (CSA) to pay child support to [Ms A]. On 27 August 2019, the CSA decided to accept a binding child support agreement from 25 July 2019, and not an earlier date.
Mr Stefan objected to the decision on 8 October 2019, just outside the period of 28 days after being notified of the decision. On 29 November 2019, the CSA decided to refuse to extend the time in which Mr Stefan could object. On 2 December 2019, Mr Stefan applied to the Tribunal for review.
Mr Stefan participated in the Tribunal’s hearing by conference telephone.

CONSIDERATION

Background and legislative framework

A parent may object to a decision made by the CSA pursuant to section 80 of the Child Support (Registration and Collection) Act 1988 (the Registration Act). Section 81 of the Registration Act provides that an objection must be lodged within 28 days after notice of the decision is served on the person.
Section 82 of the Registration Act relevantly provides that a person may apply for an extension of time in which to lodge an objection and that the application must state fully and in detail the grounds for the application, including the circumstances concerning, and the reasons for, the failure by the person to lodge the objection within the 28-day time period prescribed. The Registration Act does not set out criteria for consideration when considering an application for an extension of time within which to object. However, the Child Support Guide (the Guide) contains useful guidelines at chapter 4.1.5. In summary, the Guide suggests that it is ultimately a question as to whether the interests of justice favour the granting or refusal of the application in the particular circumstances. Factors to be considered are the reason for the delay, the merits of the objection, whether the person has rested on their rights and any potential prejudice to the other party or the public.
The established cases indicate that the starting position is the prima facie rule…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] AATA 1394
Decision Date: 28 February 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application by Stefan for an extension of time to lodge an objection against a decision made by the Child Support Registrar. The Registrar had refused to grant Stefan an extension of time to object to a child support assessment.

The primary legal issue before the Tribunal was whether Stefan had provided a reasonable explanation for his delay in lodging the objection and whether he had demonstrated that he had some prospect of success in the substantive objection. The Tribunal also had to consider the degree of prejudice to the Child Support Registrar if the extension were granted.

The Tribunal reasoned that while Stefan's explanation for the delay was not entirely comprehensive, it was sufficient to establish a reasonable excuse. Crucially, the Tribunal found that Stefan had demonstrated an arguable case and a real prospect of success in his proposed objection, particularly concerning the calculation of his child support liability. The Tribunal also determined that the prejudice to the Registrar in granting the extension would be minimal. Applying the principles for granting an extension of time, the Tribunal concluded that it was in the interests of justice to allow Stefan to pursue his objection.

Consequently, the Tribunal set aside the Registrar's decision and substituted it with a decision granting Stefan an extension of time to lodge his objection.

Orders