Valgardson and Child Support Registrar (Child support)

[2022] AATA 5011

Valgardson and Child Support Registrar (Child support) [2022] AATA 5011 (27 October 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC024204

APPLICANT:  Dr Valgardson

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member J Leonard

DECISION DATE:  27 October 2022

DECISION:

The decision under review is set aside and a decision substituted that Dr Valgardson is granted an extension of time in which to lodge his objection to a decision made on 22 June 2020.

CATCHWORDS

CHILD SUPPORT – refusal to grant an extension of time to object - reasonable explanation for the delay - arguable merit – 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. This review concerns whether an extension of time should be granted to allow Dr Valgardson to lodge an objection to a decision made by Services Australia (Child Support).

2. Dr Valgardson and [Ms A] are the parents of two children. A child support case has been in place since 4 March 2019.  On 22 June 2020 a decision was made by Child Support to accept [Ms A]’s application to have payments collected by Child Support and to collect outstanding child support of $5,434.77 which had accrued in the period 22 March 2020 to 21 June 2020. On 29 June 2020 the outstanding amount was amended to $4,385.35 following notification from the Australian Taxation Office of an amended 2018-19 tax return for Dr Valgardson.

3. On 22 April 2022 Dr Valgardson lodged an objection to the decision made on 22 June 2020. He requested an extension of time in which to lodge the objection.

4. Dr Valgardson’s application for an extension of time was refused by Child Support on 5 June 2022. He lodged an application with the Tribunal on 4 July 2022 seeking a review of that decision.

5. Dr Valgardson attended a hearing on 27 October 2022 in person. In addition to his oral evidence, the Tribunal had regard to the documents supplied by Child Support (folios 1 to 228) as well as evidence Dr Valgardson provided to the Tribunal which was numbered A1 to A7.

ISSUES

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

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

   ·     should he be granted an extension of time to object to the decision made on 22 June 2020?

CONSIDERATION

1. The payee of a registered maintenance liability may apply to Child Support for the liability to become enforceable (section 28A of the Child Support (Registration and Collection) Act 1988 (the Act)). [Ms A] made an application on 22 June 2020. She also applied to Child Support for the unpaid amounts payable under the liability in relation to a specified period (the opt-in arrears period) to be treated as arrears amounts. If the specified period does not exceed three months, Child Support must grant the payee’s application (subsection 28A(4)).

2. Child Support determined that the three-month period commenced on 22 March 2020 and ended on 21 June 2020. Child Support also determined that Dr Valgardson’s liability for the opt-in arrears period was $5,434.77, later amended to $4,385.35.

3. Subsection 80(1) of 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.

10.  It is not in dispute that Dr Valgardson lodged his objection outside of the statutory time frame.

11.  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.

12.  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).

13.  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 Dr Valgardson rested on his rights

14.  Dr Valgardson stated he was living at [Address 1] (the [Suburb 1] address) until 5 January 2019 with [Ms A] and their children. He was required to leave when [Ms A] took out an apprehended violence order (AVO) against him which prevented him from living at that address. He provided evidence that he was found guilty of breaching a term of the AVO in July 2019.  He moved back into the home in October 2020 after [Ms A] had moved out.

15.  When Ms Khatabi applied for Child Support collection on 22 June 2020 the file note states that she could not provide Dr Valgardson’s address, home phone number, work phone number, occupation or employer. She provided Dr Valgardson’s mobile phone number.

16.  Child Support contacted Dr Valgardson by mobile phone on 22 June 2020. It is stated in part:

Unable to do the Opt in discussion in full with [Dr Valgardson] as he was about to rush into a meeting. Made him aware that we will now be doing the collections and the arrears on the account/

[Dr Valgardson] believes his tax returns were done a month back and the accountant might have made a mistake with the details for 2018/19 Tx Year.

[Dr Valgardson] has an agreement with [Ms A] where he pays $40k per annum and she wont ask for any child support.

[Dr Valgardson] will be sending in evidence of payments made since March 22nd 2020 until date which should address the arrears claimed by [Ms A]. payments have been made with children's names as reference.

Briefly discussed an Estimate as PP is now on JSP. Also discussed about doing his tax reutnrs early.

Explained that OGL was dated from 01/12/2019 at $1800 due to returns lodged on 19/06 which is late for 2018/19.

PP will call us tomorrow and discuss in more details about the account.

17.  All mail, including the decision to accept [Ms A]’s application for a child support assessment, was sent to Dr Valgardson at the [Suburb 1] address despite [Ms A]’s statement that she did not know where Dr Valgardson was living. Dr Valgardson stated he cannot recall whether he rang Child Support on 23 June 2020, however, there is no evidence in the papers of any discussion with Dr Valgardson regarding his mailing or residential address.

18.  Dr Valgardson stated he did not notify Child Support that he was not living at [Suburb 1], as he did not know [Ms A] had made an application to Child Support in January 2019 until he received a phone call on 22 June 2020. Even then, he did not know that she had asked for unpaid amounts to be collected. Had he been aware of this, he would have disputed it at the time as they had an agreement signed on 25 February 2019 that he would pay her $150 per month as well as water, gas, electricity, council rates and [Ms A]’s mobile phone bill.

19.  On 20 April 2022 Dr Valgardson objected to the care percentages used in the assessment. He objected to the decision relating to unpaid amounts on 22 April 2022. He also provided bank transactions which he stated show deposits of child support into a joint account for the benefit of the children.

20.  The Tribunal accepts Dr Valgardson’s oral evidence that he did not reside at the [Suburb 1] address until October 2020.  No evidence is contained in the papers of any discussion with Dr Valgardson about his residential or mailing address between June and October 2020.

21.  It appears to the Tribunal that Dr Valgardson’s decision to object to the unpaid amounts may have been prompted by action taken by Child Support to credit an amount of $4,559.98 on 4 March 2022.

22.  The Tribunal accepts Dr Valgardson’s evidence that he was not living at the [Suburb 1] address when the notice was sent to him on 22 June 2020. The Tribunal also accepts his oral evidence that [Ms A] did not pass on his mail to him, and he was unaware of the decision regarding the opt-in arrears until much later.

23.  The Tribunal finds that Dr Valgardson did not rest on his rights and provided a reasonable and adequate explanation for the delay in lodging his objection.

The merits of Dr Valgardson’s objection

24.  Dr Valgardson provided bank statements to Child Support which included the period 18 March 2020 to 18 May 2020. He highlighted deposits into the jointly held account totalling approximately $2,200, which he stated were payments of child support. He stated he could provide bank statements up to 21 June 2020. He claimed he did not make withdrawals from the account, and the payments were in accordance with the agreement he had with [Ms A] regarding payment of child support. He stated the amounts he deposited varied, depending on his financial situation. He is of the view the unpaid amount would reduce if he was given the opportunity to have the decision reviewed.

25.  The Tribunal finds that if Dr Valgardson is granted an extension of time in which to lodge his objection, further enquiries may reveal that his objection has merit. 

Prejudice to [Ms A]

26.  If the extension of time was granted, [Ms A] would be given the opportunity to provide evidence regarding the payments made by Dr Valgardson. If Dr Valgardson was successful it may result in a reduction in the arrears owing to [Ms A] or an overpayment to her.

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

27.  The Tribunal finds that it would be fair, as between Dr Valgardson and others, to grant him an extension of time.  This is because he had adequate reasons for the delay, did not rest on his rights and his objection may have merit.

Whether it would be proper to grant an extension of time

28.  The Tribunal considers that in the circumstances of this case it would be proper to grant Dr Valgardson an extension of time to object to Child Support’s decision of 22 June 2020.  

DECISION

The decision under review is set aside and a decision substituted that Dr Valgardson is granted an extension of time in which to lodge his objection to a decision made on 22 June 2020.