Waak and Child Support Registrar (Child support)

[2020] AATA 4927

Waak and Child Support Registrar (Child support) [2020] AATA 4927 (15 October 2020)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2020/PC019793

APPLICANT:  Mr Waak

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                15 October 2020

APPLICATION:

An extension application made on 10 September 2020 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 17 July 2020 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

CHILD SUPPORT – application for extension of time – refusal to credit non-agency payments - no satisfactory explanation for the delay - little merit - extension of time refused

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.

STATEMENT OF REASONS

1. On 10 September 2020 Mr Waak lodged an application with the Administrative Appeals Tribunal (the Tribunal) for an extension of time for review of a child support decision made on 17 July 2020.  The matter was considered on 15 October 2020 on the papers (consistent with the Tribunal’s “Child Support Review Directions”).  The Tribunal had before it a bundle of documents provided by the Child Support Agency.

2. Mr Waak and [Ms A] are the parents of [Child 1] (born January 2002) and [Child 2] (born December 2003).  There has been a child support assessment in place since 9 August 2007 with collection by the Child Support Agency from 27 January 2016.  This matter relates to [Child 2] only.  [Child 2] is no longer an eligible child of the assessment.

3. On 22 October 2019 Mr Waak made an application to the Child Support Agency for a payment of $1,782 made on 8 February 2018 and a payment of $7,128 made on 13 February 2018, both for orthodontics for [Child 2], to be credited as non-agency payments.  On 14 November 2019 the Child Support Agency made the decision to refuse the application (the original decision).

4. On 5 March 2020 Mr Waak objected to the original decision and on 25 April 2020 an extension of time was granted by the Child Support Agency.  On 17 July 2020 the Child Support Agency disallowed the objection (the objection decision).

5. The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (the Act) and the Administrative Appeals Tribunal Act 1975.

6. The issue which arises in this case is whether or not to grant Mr Waak’s request for an extension of time to submit an application for review of a child support decision.

7. Part VIIA, Division 2 of the Act sets out the procedures for applying to the Tribunal for a review of an objection decision made by the Child Support Agency, as well as applying for an extension of time for such a review in the event the application is not made within the prescribed period.

8. Subsection 29(2) of the Administrative Appeals Tribunal Act 1975 establishes that an application for review must be made within 28 days of being served with notice of the decision.

9. If the 28-day period to apply for review has ended, then a written application for an extension of time can be made under section 91 of the Act.  The Tribunal finds Mr Waak was advised about the outcome of the objection decision by electronic means in a letter from the Child Support Agency dated 17 July 2020.  Given Mr Waak lodged his application more than 28 days after he was served with notice, the Tribunal is satisfied that an extension of time was required.

10. Under subsection 92(1) of the Act, the Tribunal must consider and grant or refuse an extension application.  In doing so, the Tribunal considers the guiding principles for the exercise of discretion to allow an extension of time as set out in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186. In that case, the Federal Court said an extension of time should not be granted unless satisfied it was proper to do so, noting that, in general, applications or proceedings commenced outside of a prescribed time limit will not be considered.

11. A review of other relevant authorities establishes that when considering whether or not 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 they will experience in providing evidence as a result of the delay;

    ·     any prejudice to the general public; and

    ·     fairness in granting an extension of time.

Reasons for the delay

1. The Tribunal finds that Mr Waak’s application for an extension of time on 10 September 2020 in relation to the objection decision made on 17 July 2020, of which he was notified by electronic means, is approximately 27 days out of time. It is noted Mr Waak initially submitted his application for review to the Tribunal on 4 September 2020.  To have been within the prescribed period his application should have been made no later than 14 August 2020.

2. In seeking an extension of time Mr Waak states as the reasons for the delay that he had previously applied to the Tribunal for a review of this matter but prior to the Child Support Agency making a decision.  Mr Waak states this was because he was aware the Child Support Agency was not going to allow the non-agency payments.

3. The Tribunal notes that on 28 February 2020 Mr Waak applied to the Tribunal for review of a non-agency payment decision.  This application was subsequently dismissed by the Tribunal on 9 April 2020 because an objection decision had yet to be made by the Child Support Agency.  On 10 August 2020, after the objection decision was made on 17 July 2020, Mr Waak sent a copy of the objection decision to the Tribunal with a request that his case be reinstated.  On 10 August 2020 the Tribunal responded to Mr Waak advising him he would need to make an application for review of the objection decision which he subsequently did on 4 September 2020.  By this stage his application for review was out of time and Mr Waak was required to apply to the Tribunal for an extension of time.

4. Mr Waak appears to be implying that because he applied to the Tribunal for review of the objection decision before the Child Support Agency had actually made the objection decision his intention was somehow clear.  The Tribunal rejects this argument.  There was no certainty the Child Support Agency, on objection, would reject his application to credit the two payments as non-agency payments.  There is also no link between an appeal to the Tribunal against a decision that does not exist and another decision made in the future.

5. The Tribunal notes in evidence that during a conversation with the decision maker on 14 November 2019 about the outcome of the original decision Mr Waak asked about his next steps and if he should appeal to the Tribunal.  Mr Waak was advised by the decision maker that he would need to lodge an objection in writing to the original decision.

6. Mr Waak nonetheless applied to the Tribunal for a review on 28 February 2020 – before submitting an objection as advised by the Child Support Agency – and his application was dismissed.  When he subsequently sent the objection decision to the Tribunal on 10 August 2020 with a request for reinstatement he was informed on the same day that he would need to make an application for review.  He did not do so until more than three weeks later.  If Mr Waak had acted sooner his application for review could have been within time.

7. The notification of the objection decision provided by the Child Support Agency dated 17 July 2020 outlines what to do if Mr Waak disagreed with the decision.  This includes asking the Tribunal to undertake a review “within 28 days from the date you receive this letter”.  The words “within 28 days” are in bold which, in the view of the Tribunal, gives a clear indication of the importance of this timeframe.

8. Furthermore, as Mr Waak was required to submit an extension of time to object to the original decision, he would have been aware of the need to apply for reviews in a timely fashion.

9. The Tribunal is satisfied Mr Waak was advised of his appeal rights.  The Tribunal finds Mr Waak has not provided a reasonable explanation for the short delay in applying for a review of the objection decision.

Merits of the application

1. Mr Waak is seeking review of an objection decision that refused to credit as non-agency payments an amount of $1,782 made on 8 February 2019 and an amount of $7,128 made on 13 February 2018 for orthodontics for [Child 2].

2. When a child support liability is registered under the Act for collection, the amount payable is a debt due to the Commonwealth and must be paid to the Child Support Agency not the payee.  In some circumstances the Child Support Agency may credit payments made directly to a payee or to a third party against a child support liability that is registered for collection (sections 71, 71A or 71C of the Act).  The Child Support Agency refers to the credits under sections 71 and 71A as “non-agency payments”.  Credits under section 71C are known as “prescribed non-agency payments” as this section applies to payments of the kind specified in section 19 of the Child Support (Registration and Collection) Regulations 2018 (the Regulations).

3. Section 71C of the Act provides a mechanism whereby payments made by a liable parent to the payee or to another person for items specified in section 19 of the Regulations may be taken into account in partial satisfaction of the liable parent’s child support liability.  A number of specific criteria must be satisfied for this provision to apply.  Even where all the criteria are met, there is still a discretion in section 71D of the Act to refuse to credit amounts that would otherwise be able to be credited against the liability.

4. In this case Mr Waak made two payments to an orthodontist for braces for [Child 2].  Section 71A of the Act provides for payments made by the payer of an enforceable maintenance liability to a third party to be credited against the amount payable under the child support liability.  It must be the intention of both parties that the payments, or part of the payments, be credited against the payer’s child support liability. There is no evidence to suggest that [Ms A] agreed the two payments made by Mr Waak were intended to be in lieu of child support.  The Tribunal is, therefore, satisfied the two payments made by Mr Waak cannot be accepted as non-agency payments under section 71A of the Act.

5. Under section 71C of the Act payments specified in the Regulations can be credited towards a payer’s child support liability regardless of the intention of the parents at the time the payment was made provided certain conditions are met. Fees for services provided by dental practitioners are of a kind specified in the Regulations.  The Tribunal is satisfied, based on the evidence provided, the two payments made by Mr Waak for orthodontics for [Child 2] meet the conditions set out under section 71C of the Act.

6. Under section 71D of the Act payments that can be credited under section 71C may be refused if the Registrar is satisfied, in the circumstances of the particular case, the amount ought not be credited.  The title of section 71D is, “Registrar may refuse to credit amounts in special circumstances”.  Chapter 5.3.1 of the Child Support Guide sets out a non-exhaustive list of circumstances in which the discretion may be exercised.  It states:

   The Registrar may refuse to credit an amount in certain circumstances, including, but not limited to, the following:

   ·     The payee's agreement to credit an amount paid to a third party or payment made as a transfer of property was obtained through coercion or harassment. (However, where the Registrar is informed about this after the payment has been credited, it will be necessary for the payee to object to the Registrar 's decision to credit the amount.)

   ·     The payer is claiming a credit under CSRC Act section 71C for an expense they regularly meet that was taken into account in a change of assessment decision. For example, the Registrar or a court has reduced the annual rate (or refused to increase it) because the payer usually pays school fees, medical expenses for the child, mortgage or rent payments or any other prescribed payments.

   ·     The payer is claiming credit under CSRC Act section 71C for an expense which they have undertaken to pay in addition to their liability as specified in an agreement between the parents (this does not have to be a child support agreement).

   ·     The payer is claiming credit under CSRC Act section 71C for an expense that they are responsible to pay under the terms of a court order.

   ·     The payer is claiming credit under CSRC Act section 71C for expenses for the child for which they are separately responsible. For example, the payer claims credit for child care costs for the days when the child resides with the payer. If the payer claims credit for a payment for which they and the payee are jointly responsible, and the amount does not relate to the payee's home, the Registrar has no basis of apportioning the payment and must credit the full amount. However, if there is evidence that the parents have explicitly agreed about how much each party will pay, the Registrar will apportion responsibility according to their agreement.

   ·     The payer is claiming a credit under CSRC Act section 71C for loan repayments and they have a history of regularly withdrawing funds from the loan account using its redraw facility.

7. The Tribunal notes in evidence from the Child Support Agency an agreement between [an] Orthodontic Clinic and Mr Waak dated 16 January 2018 in relation to orthodontics for [Child 2].  The agreement is for a treatment fee of $7,128 with an additional deposit of $1,782 and various payment options.  The agreement is in the name of Mr Waak only and signed by Mr Waak.

8. As Mr Waak is claiming credit for orthodontic expenses for which he is separately responsible the Tribunal is satisfied, based on the evidence provided, the discretion to refuse to credit these amounts has been exercised appropriately by the Child Support Agency.

9. The test of merit has alternatively been expressed as whether, were it to proceed, the application for review “would have good prospects of success” (Smith and Commissioner of Patents [2012] AATA 60 at [29]–[31]).

10. The Tribunal finds Mr Waak’s application for review would not have good prospects of success in the circumstances of this case.  The Tribunal therefore considers his application has little merit.

Potential prejudice to [Ms A] and the wider public

1. [Ms A] should ordinarily be able to rely on the child support assessment once the time for objection has passed. Given Mr Waak is approximately 27 days late in making his application, the Tribunal does not consider that [Ms A] would be significantly disadvantaged if an extension of time to lodge an objection was granted.

2. Time limits for the review of administrative decisions should be observed as strictly as possible in order to assist the proper administration of government agencies. There is also a public expectation that there be a degree of certainty in relation to time limits, however, the law also allows for extensions of time. In this case, the Tribunal does not believe there would be prejudice to the general public if an extension of time to lodge an objection was granted.

Fairness in granting an extension of time as between Mr Waak and other persons in similar positions

1. The Child Support Agency notifies parties that they can seek a review of decisions with the Tribunal and they have 28 days within which to submit a request for such a review. Most people comply within the 28-day timeframe. It is clear the statutory time limit is to be enforced unless there are acceptable reasons for the delay. The Tribunal is not satisfied Mr Waak’s circumstances are sufficiently different to that of other applicants in a similar position that an extension of time is warranted. The Tribunal finds that it would be unfair to others to grant Mr Waak an extension of time in view of the statutory timeframe which applies and the lack of merit to his application.

CONCLUSION

1. Mr Waak has not provided a satisfactory explanation for the short delay in applying for a review of the objection decision. The reasons for the delay are an important factor in deciding whether or not to grant the application for an extension of time.  The Tribunal has also found his application has little merit which weighs against the granting of an extension of time.  Although there would be limited prejudice to [Ms A] and the general public, the Tribunal is of the view that it would be unfair to grant Mr Waak an extension of time given his circumstances are not sufficiently different to that of other applicants in a similar position.

2. Having carefully considered the various factors which it must take into account, the Tribunal finds it would not be proper to grant an extension of time to seek review of the objection decision made on 17 July 2020.  Accordingly, the extension application is refused.