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

1. 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.

2. 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.

3. Mr Stefan participated in the Tribunal’s hearing by conference telephone.

CONSIDERATION

Background and legislative framework

1. 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.

2. 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.

3. The established cases indicate that the starting position is the prima facie rule that proceedings commenced outside a statutory period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). However, the primary concern “is to do that which will enable justice to be done between the parties” (see Martinsen v Secretary, Department of Family & Community Services [2004] FCA 297 per Spender J). Spender J quoted McHugh J in Gallo v Dawson (1990) 64 ALJR 459 as follows:

   In order to determine whether the rules [imposing time limits] will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time ...

   When the application is for an extension of time …it is always necessary to consider the prospects of the applicant succeeding in the appeal …

4. In line with Wilcox J’s survey of cases in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, the Tribunal proposes to consider the matters identified in Gallo v Dawson under the following heads:

   ·      the explanation for the delay;

   ·      the merits of the substantial application;

   ·      any prejudice to the other party including any prejudice in defending the proceedings occasioned by the delay; and

   ·      any public interest considerations that might flow from a successful application including “the unsettling of other people” (Ralkon v Aboriginal Development Commission(1982) 43 ALR 535 at 550) or of “established practices” (Douglas v Allen (1984) 1 FCR 287).

Explanation for the delay

1. Mr Stefan advised the following in his written application to the Tribunal:

   I apologise for bringing this matter to the attention of the Tribunal as I have a Court order dated [in] April 2019 that absolves me from further obligations in relation to child support from 25th July 2019. The Court ratified a binding Child Support Agreement between my ex-wife, [Ms A], and myself.

   The Child Support Agency [C SA] advised they accepted the Binding Child Support Agreement from 25 July 2019 by letter dated 27th August 2019, but I had to pay the arrears as at [that date] April 2019 and child support up to 25 July 2019. I contacted the C SA and one suggestion put forward by the CSA was to request an extraordinary payment to be paid, covering the outstanding child support as at 25 July 2019. I proceeded with this and was advised that C SA would contact the mother and hopefully she would accept this.

   It took the CSA 5 weeks to review the extraordinary payment request, instead of the initially advised time of a few weeks. Had the CSA carried out this request in the time-frame they indicated I would have been able to lodge the objection with the C SA before the required 28 days and not have to bring this matter before the Tribunal.

   The CSA letter dated 29 November 2019 states that taking so long to resolve this matter has disadvantaged [Ms A]. This is not correct, as [Ms A] received legal advice on 4 April 2019 (refer Annexure B of Binding Child Support Agreement), where [Ms A’s] solicitor advised her rights, advantages and disadvantages of the agreement and that clause 4.4 of the Binding Child Support Agreement, clearly states "including any arrears" up to and including 25th July 2019. [Ms A] was fully aware of the terms of the Child Support Agreement and could not have been disadvantaged.

   No one from C SA advised I could submit the Binding Child Support Agreement immediately it was signed; I was always advised original stamped court orders are required. The stamped Court Order was finally received by my Family Lawyer on the 18th June 2019 and submitted by my Family Lawyer by Express Post to the C SA on the 28 June 2019. Please note the included letter in the attached documents. I followed up with C SA around 22 July 2019 as I had not heard
   anything from the C SA and I was advised C SA do not accept Court Orders and Binding Child Support Agreement previous 6 months was I ever advised this form is required, nor did I know of this form’s existence. I submitted the form on the 25 July 2019.

   I cannot understand, that while I have a signed Binding Child Support Agreement that states clearly "including any arrears" and forms part of the court orders dated [in] April 2019 and as I have fulfilled all my obligations in relation to that Court order, as to how the C SA can override the Court Order and now seek payment of child support money including arrears amounting to $1,745.41 as at 9th December 2019. The C SA was provided a DRAFT of the Child
   Support Agreement in January 2019 for comment and they verbally advised in March 2019 it was acceptable. As such the C SA had received prior notice before accepting it on 25 July 2019.

   I thank the Tribunal for considering my submission and respectfully request that the Tribunal make appropriate directions to the C SA to allow my objection to be heard.

2. The delay here is short. The Tribunal accepts as reasonable Mr Stefan’s explanation for delaying objecting on the basis the CSA was exploring an alternative option of an “extraordinary payment”.

Merits of the objection

1. There is no point granting an extension if an application is unlikely to succeed.

2. It appears to the Tribunal that there was a contact (or contacts) made by Mr Stefan with the CSA earlier than 25 July 2019 which alerted it to the existence of the binding child support agreement (for example, his lawyers wrote to the CSA on 28 June 2019: folio 14 of the CSA materials). The Tribunal observes that the Child Support Guide at 6.2.1 provides that an application for acceptance of a binding child support agreement does not need to be made in writing.

3. It appears than an objection, if permitted to proceed, may have some prospects for success.

Potential prejudice

1. The delay here is very short, limiting the potential prejudice to the other party.  

Public interest considerations

1. The statute provides for a 28-day period for the lodgement of objections so that parents (and the CSA) can act with certainty as to the outcome when the objection period has elapsed. The public has an interest in reviews of decisions made by the CSA being performed in a timely fashion and in a manner that ensures all applicants are treated fairly and equally. Accordingly, an extension of the time for objection, even a brief one, is not to be automatically granted.

Conclusion

1. The Tribunal is satisfied Mr Stefan has a reasonable explanation for what is a short delay. His substantive application does not lack merit.

2. In all the circumstances, the Tribunal considers the interests of justice are best served by allowing an extension of time for Mr Stefan to bring an objection.

3. As the Tribunal has reached a different conclusion to the CSA, the decision under review will be set aside.

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.