Weller and Child Support Registrar (Child support)

[2021] AATA 2754

Weller and Child Support Registrar (Child support) [2021] AATA 2754 (27 May 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC020907

APPLICANT:  Mr Weller

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member A Byers

DECISION DATE:  27 May 2021

DECISION:

The decision under review refusing to grant an extension of time for Mr Weller to object to the decision made on or about 10 September 2018 granting Ms [A]’s application for a child support administrative assessment is set aside.  In substitution, the Tribunal decides that an extension of time to lodge the objection is to be granted and accordingly that the objection is to be dealt with.

CATCHWORDS

CHILD SUPPORT – application for extension of time to object – strong merit to the objection – in the public interest to grant application – interests of justice due to likely fraud – 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. Mr Weller and Ms [A] are the parents of [Child 1] (born February 2020) and [Child 2] (born May 2018).  This matter concerns whether Mr Weller should be granted an extension of time to lodge an objection to a decision, or decisions, made by the Child Support Agency (CSA) which are based on the premise that he and Ms [A] were separated.  As will be noted, there is some confusion regarding which decision, or decisions are involved.

2. According to CSA records, the start date of the child support case between Mr Weller and Ms [A] is 23 August 2018. As I understand matters, Ms [A] lodged an application for an administrative assessment of child support on or about this date. Under section 25 of the Child Support (Assessment) Act 1989 (the Act), a parent cannot apply for an administrative assessment if they are “living with the other parent as his or her partner on a genuine domestic basis (whether or not legally married to the other parent)”.

3. Mr Weller contacted the CSA on 15 July 2020 and is recorded as agreeing to a debt repayment arrangement.  During the call Mr Weller is recorded as saying that he and Ms [A] were “trying to be together in a domestic relationship for the kids starting 10/7/2020”.  Ms [A] telephoned the CSA on 20 July 2020 and is recorded as confirming the two had reconciled on 10 July 2020 and that all child support arrears said to be owed by Mr Weller should be waived “immediately”.  It appears this did not happen as the CSA indicated to Ms [A] she should first contact Centrelink as Centrelink might think a removal of the arrears meant the arrears were paid to her.

4. On 20 July 2020 the CSA wrote to both parents advising it had suspended the child support assessment for six months from 10 July 2020 on the basis they had reconciled. 

5. On 12 August 2020 Ms [A] informed the CSA she and Mr Weller separated on 8 August 2020 and that she had 100% of the children’s care.  The CSA resumed the child support assessment from 9 August 2020 and informed the parents by notice dated 18 August 2020.

6. On 20 January 2021 Mr Weller is recorded as informing the CSA that he and Ms [A] resided together from 2017 to 4 November 2020 without having separated at any point.  Mr Weller also indicated he discovered Ms [A] was in receipt of parenting payment as a single person (PPS) from Centrelink the whole time.  Mr Weller was advised he would need to lodge an objection “to the case being accepted from 23/08/18”. 

7. Under section 80 of the Child Support (Registration and Collection) Act 1988 (the R&C Act) a person may lodge a written objection to a decision relating to the particulars of an administrative assessment. Under section 81 of the R&C Act the person must lodge the objection within 28 days of being served notice of the decision. They may, however, apply under section 82 of the R&C Act for an extension of time within which to lodge.

8. Mr Weller lodged a written objection on 20 January 2021 together with an extension of time application.  Mr Weller stated he was objecting to a decision of 10 September 2018 because he and Ms [A] were living together in a domestic relationship from 2017 to 4 November 2020.  Mr Weller indicated at the hearing that he specified this date because the CSA informed him this was when it decided to grant Ms [A]’s application for an administrative assessment.  

9. An objections officer considered the matter on 19 February 2021 and refused to grant Mr Weller’s application for an extension of time.  For reasons that are not clear, the objections officer evidently somehow misconstrued Mr Weller as objecting to the CSA’s decision of 20 July 2020 (which, as noted above, was a decision suspending the child support assessment for six months from 10 July 2020).

10.  Mr Weller sought review by the Tribunal on 2 March 2021.  The matter was heard in Brisbane on 27 May 2021 by telephone.  The ‘Subsection 37(1) Statement and Documents’ provided by the CSA, comprising folios 1 to 143, are admitted into evidence as Exhibit 1.

11.  At hearing Mr Weller confirmed he was seeking an extension of time to object to the CSA’s decision to grant Ms [A]’s application for an administrative assessment.  I do not consider Mr Weller should be inconvenienced, or his application to this Tribunal thwarted, by the objections officer’s misstatement of the decision to be reviewed.  Apart from the perhaps collateral point that the objections officer’s reasons for refusing an extension of time would apply equally to the grant decision, Mr Weller was unequivocal in his written objection as to the relevant decision and his grounds.[1]

[1] For completeness, as Mr Weller’s objection is on the basis that he and Ms [A] were members of a couple at all relevant times, he is formally challenging every CSA decision that involves an administrative assessment made on the presumption they were separated.   

CONSIDERATION

12.  Mr Weller does not contest that he received the CSA’s notice granting Ms [A]’s application for an administrative assessment (in the ordinary course of post).  Assuming the notice was sent on 10 September 2018, Mr Weller’s objection to that decision is therefore over two years out of time.  As I indicated to Mr Weller, there would need to be compelling reasons for granting an extension of time relating to this decision in the circumstances.

13.  The Act does not prescribe the matters to consider for an extension of time application.  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 …

14.  It is well recognised that a consideration of the “nature of the litigation” may involve a consideration of any public interest component.  Although this would be uncommon in CSA matters, (as will be outlined) I consider there are public interest implications in the present matter.

15.  To provide a context for Mr Weller’s late objection, it is expedient to firstly summarise his background evidence:

-Mr Weller and Ms [A] commenced living together in 2017 and Ms [A] became pregnant with their first child [Child 2] around four months later. 

-Mr Weller received a notice from the CSA about Ms [A]’s application for a child support assessment.  He queried Ms [A] about it and was informed it was something she had to do for Centrelink purposes.  Mr Weller thought nothing further about it as (as far as he knew) it did not involve him paying child support.

-Mr Weller was the breadwinner for the household.  Ms [A] controlled the finances and, as there was no joint account, Mr Weller regularly transferred money to Ms [A] to pay household expenses and groceries.

-Mr Weller and Ms [A] had an ongoing sexual relationship and Ms [A] conceived their child [Child 1] around May 2019.

-Mr Weller received further notices from the CSA and Ms [A] informed him that, due to his criminal history, they needed to portray themselves as separated so the CSA would not take the children from them.  This made sense to Mr Weller as, at the time, he was facing [charges] (which involved [details deleted]).

-This placed Mr Weller in a tricky position with the CSA.  It is why he informed the CSA on 15 July 2020 that he and Ms [A] were “trying to be together in a domestic relationship” from 10 July 2020. 

-It was on this occasion that Mr Weller discovered that, according to the CSA, he had a large child support debt to Ms [A].  Mr Weller challenged Ms [A] about this and she said “it’s nothing”.  Ms [A] said she would get the CSA to “wipe it”.

-Mr Weller and Ms [A] separated on [date] November 2020 and he was informed by his solicitor to start paying child support as “it would look better” in negotiations involving the children’s care arrangements.

-Shortly afterwards a notice arrived for Ms [A] and on his solicitor’s advice Mr Weller opened it.  The notice was from Centrelink and contained her PPS history.  The implication was that Ms [A] had been in receipt of PPS the whole time they were together.  Mr Weller has since reported this to Centrelink.

16.  As evidence the two were residing together on a genuine domestic basis, Mr Weller has provided a statement from a former landlord and a domestic violence order (DVO) application Ms [A] lodged on 4 November 2020.

17.  In a statement of 8 November 2020, Mr [B] indicated Mr Weller and his family rented [address deleted] from him from 6 January to 30 June 2020.  Mr [B] states that he lived across the road, that Mr Weller was away a lot working, and that the mother and children were happy.  According to Mr [B], the family moved to [Suburb 1] as the house was not big enough to accommodate their latest child.

18.  Mr Weller clarified that he worked in the town and so Mr [B]’s reference to him being away is merely a reference to him not being at the house because he was at work.  Mr Weller said the family did move to [Suburb 1] and Ms [A]’s name is on that lease.

19.  In the DVO application Ms [A] states that the duration of her domestic relationship with Mr Weller was three years, which matches Mr Weller’s evidence that they commenced residing together in 2017.

Merits of the objection

20. As noted, section 25 of the Act prevents a parent from applying for an administrative assessment if they are living with the other parent as their partner on a genuine domestic basis (whether or not legally married).

21.  Although there are always two sides to a story, Mr Weller’s evidence and supporting documentation is prima facie compelling.  Mr [B]’s statement places Mr Weller and Ms [A] living at the same address from January to June 2020 and as moving as a couple from this property.  Ms [A]’s DVO carries the implication she and Mr Weller were in a domestic relationship when she applied for her administrative assessment in August 2018.

22.  Mr Weller’s evidence provides a cogent explanation of why [Child 1] was conceived in May 2019 and places the two as members of a couple at this point.  Mr Weller’s evidence also explains why, having informed the CSA on 20 July 2020 that she and Mr Weller had reconciled, Ms [A] then informed the CSA only three weeks later they were separated.  If, as appears the case, Ms [A] was in receipt of PPS from Centrelink, she would have needed to move quickly to give the appearance of a brief reconciliation only. 

23.  Based on the evidence and material presently before me I consider Mr Weller’s prospects in the substantive matter are good, as the details strongly suggest he and Ms [A] were members of a couple when she applied for an administrative assessment in August 2018.    

Consequences to the parties and public interest issues

24.  Mr Weller has sizable child support arrears and I understand he has not attempted to repay child support said to be owing for the period he contends he and Ms [A] were members of a couple.  Thus, the financial disadvantage to Ms [A] is much reduced in the sense that a successful outcome would not place her in arrears.  On the other hand, if an extension of time is not granted, Mr Weller would be faced with a significant child support debt in circumstances where his claim is that he and Ms [A] were members of a couple at all relevant times.

25.  Further, if Ms [A] has fraudulently completed her application for an administrative assessment, it would follow that she has knowingly wrongly placed Mr Weller in a position of accruing a child support liability.  This effectively negates any disadvantage to her that the grant of an extension of time would have.

26.  I consider the public interest is triggered here if Ms [A] has committed a fraud on the Commonwealth and received public monies from Centrelink to which she was knowingly not entitled.    

Explanation for the delay  

27.  Mr Weller’s explanation for the initial delay is essentially that Ms [A] duped him into thinking that her application for an administrative assessment was a Centrelink requirement.  Although perhaps naive, I accept this explanation probably did not alert Mr Weller to a problem as there was evidently no call upon him to pay child support.

28.  However, Mr Weller’s contact with the CSA on 15 July 2020 did alert him to a problem, as he was told he was liable to pay significant child support arrears to Ms [A] in circumstances where he asserts they were and had been members of a couple.  On Mr Weller’s evidence, it was at this point that (unknowingly to his financial detriment) he went along with Ms [A]’s assurance that she would waive the child support arrears and her assertion that they had to portray themselves as having been separated to prevent the children from being taken due to his criminal history. 

29.  Mr Weller’s reason for not initially objecting to Ms [A]’s application for an administrative assessment seems based on a reasonable trust in a partner he had no reason to think had fraudulent motives.  However, Mr Weller’s explanation once he became aware of an issue (in July 2020) does not strike me as a good reason for the subsequent delay of some six months in lodging an objection.      

Conclusion

30. Despite deficiencies in Mr Weller’s explanation for the delay in lodging an objection to the CSA’s decision of 10 September 2018 granting Ms [A]’s application for an administrative assessment, my view is that the justice of the case overwhelmingly requires granting Mr Weller an extension of time to lodge his objection (section 83 of the R&C Act).

31.  In this regard, a significant factor is that Mr Weller’s case is prima facie strong on the evidence so far provided.  Added to this there are significant public interest issues associated with possible fraud on the Commonwealth by Ms [A] as well as significant disadvantage to Mr Weller if he is saddled with a large and unfounded child support debt.

32.  The decision under review refusing an extension of time will therefore be set aside.

DECISION

The decision under review refusing to grant an extension of time for Mr Weller to object to the decision made on or about 10 September 2018 granting Ms [A]’s application for a child support administrative assessment is set aside.  In substitution, the Tribunal decides that an extension of time to lodge the objection is to be granted and accordingly that the objection is to be dealt with.