Wenham and Child Support Registrar (Child support)

[2021] AATA 3360

Wenham and Child Support Registrar (Child support) [2021] AATA 3360 (13 July 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/PC021152

APPLICANT:  Ms Wenham

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member S Letch

DECISION DATE:  13 July 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – refusal to grant an extension of time to object - no satisfactory explanation for the delay - 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 A] has been assessed by the Child Support Agency (CSA) as liable to pay child support to the applicant in these proceedings, Ms Wenham. On 16 April 2007, the CSA made a decision to vary [Mr A]’s child support income to $60,000 for the period 25 September 2006 to 3 January 2009.  Ms Wenham objected to that decision nearly 14 years later on 21 January 2021; on 23 February 2021, the CSA decided to refuse to grant her an extension of time to object to the decision of 16 April 2007.

2. On 1 April 2021, Ms Wenham applied to the Tribunal for further review. Ms Wenham participated in the Tribunal’s hearing by conference telephone.

CONSIDERATION

Background and legislative framework

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. 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 for 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. The Registration Act does not set out criteria for consideration when considering an application for an extension of time within which to object. However, the Child Support Guide (the 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 granting 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.

3. 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 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 …

4. 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) 43 ALR 535 at 550) or of “established practices” (Douglas v Allen (1984) 1 FCR 287).

Explanation for the delay

1. The absence of a reasonable explanation for the delay will ordinarily exclude an extension being granted. The delay here is extraordinary; an exceptional set of circumstances would need to exist to grant an extension to object.

2. Ms Wenham told the Tribunal she had not understood what she was required to do to seek a further review. She was “so tied up” looking after four children after [Mr A] had absconded to [Country 1] (in addition to working in other countries); the CSA has not been able to receive any child support from him. The only reason the CSA recently “got hold of him” is because of COVID-19.

3. The Tribunal understood why Ms Wenham had not progressed matters in 2007 when the original decision was made; however, she was notified of her objection rights at the time. The Tribunal does not consider the extraordinary delay is reasonably justified; this factor must weigh very heavily against granting an extension of time to object.

Merits of the objection

1. There is no point granting an extension to object if an objection is not likely to succeed.

2. The underlying decision involves a degree of discretion, and any application, if permitted to proceed, would not be devoid of possible merit. This factor does not weigh against granting an extension.  

Potential prejudice

1. The delay here is extraordinary; there are serious questions concerning possible prejudice to the other party given the passage of time since the original decision, and the associated evidentiary difficulties which are thrown up. Ameliorating that prejudice is the other parent’s absence and his failure to meet his child support commitments in a timely way. However, in considering this factor, ultimately, the extraordinary delay weighs heavily against granting an extension.

Public interest considerations

1. The statute provides for a 28-day period for the lodgement of objections so that parents (and the CSA) can act with certainty as to the outcome when the objection period has elapsed. The public has an interest in reviews of decisions made by the CSA being performed in a timely fashion and in a manner that ensures all applicants are treated fairly and equally. Accordingly, an extension of the time for objection, even a brief one, is not to be automatically granted.

Conclusion

1. Whilst the Tribunal empathised with Ms Wenham’s circumstances, she does not have a reasonable explanation for a delay of more than 14 years to object to the decision the subject of this review.   

2. The Tribunal is satisfied that the interests of justice require that the extension application be refused.

DECISION

The decision under review is affirmed.