Weiss and Child Support Registrar (Child support)

[2019] AATA 4871

Weiss and Child Support Registrar (Child support) [2019] AATA 4871 (25 June 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC016123; 2019/BC016086

APPLICANT:  Mr Weiss

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member S Letch

DECISION DATE:  25 June 2019

DECISION:

The Tribunal decides to:

(a)set aside the decision of 21 February 2019, and in substitution, grant an extension of time for Mr Weiss to object to the decision of 27 October 2006 accepting the application for a child support assessment made by Ms [A] on 10 September 2006;

(b)affirm the decision to refuse to grant an extension of time for Mr Weiss to object to the decision of 10 May 2017 accepting Ms [A’s] application to the Child Support Agency to collect child support on her behalf.

CATCHWORDS

CHILD SUPPORT – refusal to grant an extension of time to object – satisfactory explanation for the delay – clear merit – weighing all factors the extension of time should have been granted – decision under review set aside and substituted

CHILD SUPPORT – refusal to grant an extension of time to object – No merit in relation to second decision – weighing all factors the extension of time was correctly refused – decision under review affirmed

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 Weiss has been assessed by the Child Support Agency (CSA) as liable to pay child support to Ms [A]. The case was originally registered in October 2006 under a private collection arrangement.

2. In May 2017, Ms [A] approached the CSA and sought a change from the private collection arrangement, requesting the CSA collect child support on her behalf. Her request was accepted by the CSA.

3. Mr Weiss has consistently maintained he was not aware that the case had been accepted in 2006 until February 2019; similarly, he was not aware that the CSA had accepted Ms [A’s] request for it to collect child support on her behalf in 2017. Upon learning of those facts in early 2019, the CSA advised Mr Weiss to seek extensions of time to object to the original decision of 27 October 2006 accepting the case, and the decision of 10 May 2017 to accept CSA collection with effect from 26 January 2017. Despite inviting Mr Weiss to adopt that course, the CSA promptly refused to grant his requests for an extension of time in which to object to both decisions.

4. Mr Weiss sought further review by the Tribunal. Mr Weiss was represented by [Representative A] of [Firm 1]. [Representative A] submitted additional written submissions to the Tribunal, which included supporting evidence; in particular, those materials contain a very detailed affidavit by Ms [A] dated 24 July 2017 for the purposes of Federal Circuit Court proceedings in which she records her continuing relationship and cohabitation with Mr Weiss from 2006, culminating in a separation in 2017.

The relevant law

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. Regulation 14 of the Child Support (Registration and Collection) Regulations 1988 provides that a notice may be served by the CSA by sending it by pre-paid post to a person’s address for service. Service is then taken to have occurred at the time the notification would have arrived at that address in the usual course of the post.

3. 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 of 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.

4. The Registration Act does not set out criteria for consideration when determining an application for an extension of time within which to object. However, the Child Support 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 grant 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.

5. 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 p 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 …

6. In line with Wilcox J’s survey of cases in Hunter Valley Developments P/L 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] FCA 153; (1982) 43 ALR 535 at p 550) or of “established practices” (Douglas v Allen (Morling J, 3 April 1984, unreported, p 19)).

The original decision to accept the case in 2006

1. [Representative A] advised the Tribunal that he understood that the CSA had not previously been provided with Ms [A’s] affidavit. He advised the Tribunal that he has issued correspondence to Ms [A] seeking confirmation of the dates of cohabitation with Mr Weiss; he advised he is not aware that she is contesting the contents of her own affidavit.

2. The Tribunal appreciates the original decision was made to accept the case almost 13 years ago. It wold be most unusual to grant an extension given the passage of time. However, the Tribunal had no cause to doubt Mr Weiss’s contentions that he had not been aware that a child support case had ever been registered until he was advised of that by the CSA in February 2019. The Tribunal accepts it likely Mr Weiss had not received any correspondence alerting him to the existence of the case. The Tribunal finds he has an adequate explanation for the delay.

3. On the basis of Ms [A’s] sworn affidavit, it would appear the merits are very much with Mr Weiss. In the event Ms [A’s] affidavit is true and correct, and she misrepresented her position to the CSA, Ms [A] will not suffer prejudice if the matter is to proceed to objection.

4. It seems clear enough, in the Tribunal’s assessment, the interests of justice are clearly served by granting an extension in this case. If misrepresentations have been made to the CSA, such matters strike at the heart of the child support scheme.  Ms [A] will of course have an opportunity to put her case during the objections process.

5. The Tribunal will therefore set aside the decision of the CSA, and decides that Mr Weiss is to be granted an extension of time (until 7 February 2019, the date he formally objected) to object to the decision of 27 October 2006.

The decision of 10 May 2017 to collect child support on Ms [A’s] behalf

1. In the event it is ultimately decided the original application ought to have been refused, the existing child support case would effectively not have been in existence when Ms [A] applied for CSA collection in 2017. However, although not before it, in that event, the CSA may accept that contact with Ms [A] establishes a new case. It is not appropriate for the Tribunal to speculate about such matters.

2. In the event the original case does not fall away, Ms [A] was within her rights to ask the CSA to collect on her behalf. It appears common ground that the parties had separated by April 2017 at the latest. The Tribunal is concerned about possible prejudice to Ms [A] if an extension were granted to object to the CSA collection decision; it is not clear that Mr Weiss’s application against that decision would be likely to succeed.

3. Ultimately, the Tribunal does not consider the interests of justice are served by granting an extension to Mr Weiss to object to the 2017 decision. Mr Weiss’s potential remedy rests with the original acceptance of the child support case. The Tribunal will affirm the decision of the CSA refusing to grant an extension to object to the 2017 decision.

4. As an additional observation, the Tribunal notes that the resumption of a “member of a couple” relationship is a terminating event for child support purposes. Importantly, the date of effect to be given to terminating events is not fettered by time limits, and such an event is given retrospective effect irrespective of when it occurred. Consideration about whether a terminating event occurred may, or may not, become relevant at some point in future; however, it is important to observe that Mr Weiss may approach the CSA at any time and request it to make what amounts to a separate and stand-alone decision about whether such an event occurred at any material time.    

DECISION

The Tribunal decides to:

(a)set aside the decision of 21 February 2019, and in substitution, grant an extension of time for Mr Weiss to object to the decision of 27 October 2006 accepting the application for a child support assessment made by Ms [A] on 10 September 2006;

(b)affirm the decision to refuse to grant an extension of time for Mr Weiss to object to the decision of 10 May 2017 accepting Ms [A’s] application to the Child Support Agency to collect child support on her behalf.