Twyman and Child Support Registrar (Child support)

[2021] AATA 1000

Twyman and Child Support Registrar (Child support) [2021] AATA 1000 (18 March 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC020519

APPLICANT:  Ms Twyman

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member J Leonard

DECISION DATE:  18 March 2021

DECISION:

The decision under review is set aside and a decision substituted that Ms Twyman is granted an extension of time in which to lodge her objection to a decision made on 31 July 2020.

CATCHWORDS

CHILD SUPPORT – application for extension of time – satisfactory explanation for the lengthy delay – not devoid of merit – no prejudice to the other parent due to long delay - extension of time granted

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 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. This review concerns whether an extension of time should be granted to allow Ms Twyman to lodge an objection to a decision made by the Services Australia (Child Support).

2. Ms Twyman and [Mr A] have two daughters. A child support case has been in place since 2017.  On 31 July 2020 a decision was made by Child Support to accept [Mr A]’s application to have a payment of school fees credited to his child support liability.

3. On 2 September 2020 Ms Twyman lodged an objection to the decision made on 31 July 2020. She requested an extension of time in which to lodge the objection.

4. Ms Twyman’s application for an extension of time was refused by Child Support on 9 December 2020. She lodged an application with the Tribunal on 22 December 2020 seeking a review of that decision.

5. Ms Twyman attended a hearing on 18 March 2021 by telephone. In addition to her oral evidence, the Tribunal had regard to the documents supplied by Child Support (folios 1 to 86).

ISSUES

1. The issues to be decided by the Tribunal are:

   ·     whether Ms Twyman’s objection was lodged outside the statutory time frame; and if so

   ·     should she be granted an extension of time to object to the decision made on 31 July 2020?

CONSIDERATION

1. Subsection 80(1) of the Child Support (Registration and Collection) Act 1988 (the Act) provides that a party to a child support assessment can lodge an objection in writing to a decision as to the particulars of a child support assessment. Section 81 of the Act requires that a person must lodge an objection to such a decision within 28 days after a notice of the decision is served on them.

2. On 3 July 2020 [Mr A] advised Child Support he had made a payment of $1,825 on 11 May 2020 for payment of school fees for the youngest child. On 10 July 2020 Ms Twyman informed Child Support that she was not willing to accept the payment of school fees in lieu of child support. She was informed evidence would be sought from [Mr A] and Child Support would consider accepting the payment as a prescribed non-agency payment.

3. On 31 July 2020 Child Support accepted the payment as a prescribed non-agency payment and the decision maker attempted to inform Ms Twyman of the decision orally on 31 July 2020 without success. An electronic letter was generated the same day.

10.  Ms Twyman contacted Child Support on 21 August 2020. She was told a decision had been made. Ms Twyman advised she did not receive notification and she was informed that a letter would be sent by mail. A file note records that she was told she had “28 days to object from today’s date as she didn’t receive the first one. Sent objection form as well”.

11.  On 2 September 2020 Ms Twyman submitted her objection.

12.  Although Ms Twyman contacted Child Support on 21 August 2020, she did not lodge a written objection until 2 September 2020. Her objection was received only three days outside the 28-day time frame, allowing for weekends.

13.  Where the period for lodgement has ended, a person may send their objection to the Registrar along with an application requesting that the objection be treated as if it was lodged within the allowed time (section 82 of the Act). Section 83 of the Act provides that the Registrar must consider the application for extension of time, grant or refuse that application and advise the person of the decision in writing. Section 89 of the Act allows the person who applied for the extension of time to apply to this Tribunal for a review of that decision.

14.  The Tribunal considered the guiding principles for the exercise of a discretion to allow an extension of time as set out in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 (Cohen). In that case the Federal Court said that an extension of time should not be granted unless it was proper to do so noting that, in general, applications or proceedings commenced outside of a prescribed time limit will not be considered. The Court held at [18] that a pre-condition for the discretion to be exercised favourably for the applicant for an extension of time is that the applicant provide an ‘acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time (citations omitted).

15.  A consideration of other relevant authorities establishes that when considering whether to allow an extension of time the Tribunal should consider and balance a range of factors. These factors are a guide and are not exhaustive, but generally include:

·     the reasons for the delay and whether the applicant rested on their rights;

·     the merits of the substantive application;

·     any prejudice to the other party including any difficulties that they will experience in providing evidence as a result of the delay;

·     wider prejudice to the general public;

·     fairness in granting an extension of time as between the applicant and other persons in a similar position; and

·     whether it is proper to grant the extension of time.

The reasons for the delay and whether Ms Twyman rested on her rights

16.  Ms Twyman stated she did not check her emails daily. She rang Child Support twice to see about [Mr A]’s claim and was it was not until 21 August 2020 that she was told that a decision had been made. She asked for the letter to be sent to her. The person she spoke to advised her to file an objection once she had received the decision.

17.  In August 2020 Ms Twyman spent time away from home as she was in Canberra to help her eldest daughter settle into an apartment. Her youngest daughter had significant health issues in 2020 which was a significant source of stress for Ms Twyman. Despite this, she was aware that [Mr A] was seeking to have credit for payment of school fees and was aware that she needed to be vigilant to ensure that her concerns were taken into consideration.

18.  If Ms Twyman had been informed on 21 August 2020 of the need to lodge a written objection immediately, she would have been within the statutory time frame. Instead she was told, erroneously, that she had a further 28 days from 21 August 2020 to object.

19.  The Tribunal finds that Ms Twyman did not rest on her rights and provided a reasonable and adequate explanation for the delay in lodging her objection.

The merits of Ms Twyman’s objection

20.  On 18 November 2020 the Tribunal set aside a decision made by Child Support to credit two payments of school fees made on 10 May 2019 and 3 July 2019 against [Mr A]’s child support liability. Ms Twyman stated that she sought to have the payment made on 12 May 2020 included in the Tribunal’s review, however, was unable to do so as it had not been the subject of internal review by Child Support.

21.  Ms Twyman stated the school fees in this application were paid in May 2020 but were for fees incurred in 2019. She had withdrawn her daughter from a private school as she could not afford the fees, but [Mr A] re-enrolled their daughter in the private school and undertook to be responsible for the fees. She feels that his application for a prescribed non-agency payment should be refused as the burden of school fees should not be transferred to her.

22.  The Tribunal finds that if Ms Twyman is granted an extension of time in which to lodge her objection further enquiries may reveal that her objection has merit. 

Prejudice to [Mr A] and the wider public

23.  There would be no prejudice to [Mr A] as he has already provided evidence of the payment of school fees .

24.  The Tribunal notes that any prejudice to the wider public could have been avoided if Ms Twyman had been advised to lodge a written objection when she contacted Child Support on 21 August 2020.

Fairness in granting an extension of time as between the applicant and other persons in a similar position

25.  The Tribunal finds that it would be fair to others to grant Ms Twyman an extension of time.  This is because she had adequate reasons for her delay, did not rest on her rights and her objection may have merit.

Whether it would be proper to grant an extension of time

26.  The Tribunal considers that in the circumstances of this case it would be proper to grant Ms Twyman an extension of time to object to the Department's decision of 31 July 2020.

DECISION

The decision under review is set aside and a decision substituted that Ms Twyman is granted an extension of time in which to lodge her objection to a decision made on 31 July 2020.