Werner and Child Support Registrar (Child support)

[2019] AATA 5129

Werner and Child Support Registrar (Child support) [2019] AATA 5129 (13 August 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC016682

APPLICANT:  Mr Werner

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member F Hewson

DECISION DATE:  13 August 2019

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 - no merit - 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 Werner and Ms Werner are the parents of children in respect of whom there is a child support liability. This application for review is about whether Mr Werner should be given an extension of time to object to a decision, made on 28 February 2019, to refuse his application for a non-agency payment (NAP) in the amount of $900 to be credited against his child support liability.

2. Mr Werner’s application for an extension of time, lodged on 1 May 2019, was refused by an officer of the Department of Human Services – Child Support (the Department) on 3 June 2019.

3. On 5 June 2019 Mr Werner lodged an application for review of the refusal decision with the Social Services and Child Support Division. The application was heard on 13 August 2019. Mr Werner spoke to the tribunal by conference telephone. The Child Support Registrar did not participate in the hearing. As well as the evidence of Mr Werner, the tribunal also had regard to documents provided by the Department.

ISSUES

1. The statutory provisions relevant to this review are in the Child Support (Registration and Collection) Act 1988 (the Act).

2. Generally, objections must be lodged within 28 days of the day on which notice of the decision is given (section 81). An application outside that time can only proceed if the objector also applies for an extension of time in which to object and that application is granted (section 83).

3. The issue in this case is whether in the particular circumstances of Mr Werner’s case it is appropriate to grant his request for an extension of time to object to the decision of 28 February 2019.

CONSIDERATION

1. The documents provided by the Department include the letter dated 28 February 2019 which advised Mr Werner of the decision made on that date to refuse to credit the NAP for $900. I was satisfied that the usual timeframes applying in relation to correspondence sent electronically apply in this case. Mr Werner’s objection was lodged about five weeks late.

2. I considered whether it is appropriate to grant Mr Werner’s application for an extension of time to lodge his objection.

3. In making my decision, I am guided by the relevant provisions in the child support legislation and by decisions made by courts or tribunals. Those authorities establish that when considering whether to exercise the discretion to allow an extension of time, a decision maker should consider and balance a range of factors including:

   ·     The reasons for the delay and whether the applicant rested on their rights or took action to make the decision maker aware that the decision was being contested;

   ·     Any prejudice to the other party including any difficulties that they will experience in providing evidence as a result of the delay;

   ·     Any wider prejudice to the general public;

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

   ·     The merits of the substantive application;

   ·     Whether it is proper to grant the extension of time.

4. Mr Werner said he lodged his objection late because he didn’t understand the process for objecting; he had difficulty accessing the decision letter online; and the child support process is new to him, is cumbersome and upsetting.

5. I accepted that Mr Werner had difficulty navigating the child support system in relation to lodging his objection. The letter sent to him on 28 February 2019, however, included information about what he needed to do if he disagreed with the decision, and of the 28-day timeframe for lodging an objection. While there is an explanation for part of the delay in his difficulties accessing the letter, I was not persuaded that this and any other difficulty Mr Werner raised could not reasonably be dealt with within the 28 days allowed. In the circumstances of this case, I was not satisfied that there is a reasonable explanation for Mr Werner’s delay in lodging his objection.

6. I also considered the merits of Mr Werner’s application for an extension of time. The provisions which apply in relation to the decision to which Werner objects are in sections 71, 71A and 71C of the Act. When the Department registers a child support liability for collection, the amounts payable become a debt due to the Commonwealth. In some circumstances payments made directly to a payee or to a third party may be credited against a child support liability that is registered for collection by the Department as a NAP (section 71 and section 71A) or a “prescribed NAP” (section 71C).

7. In this case, Mr Werner is seeking to have $900 credited against his child support liability, in respect of a laptop computer he purchased for the children. For an amount to be credited under sections 71 and 71A, it is necessary that the payment is intended by both the payer and the payee to be paid in complete or partial satisfaction of an amount payable under the child support liability. A credit under section 71C does not require that there be mutual intention, but the payment must be a prescribed payment.

8. The documents provided by Department include text messages between Mr Werner and Ms Werner about the purchase of the laptop computer. It does not include, however, any statement to the effect that the payment was intended to be in lieu of child support. Mr Werner agreed that there was no discussion between them about the payment being in lieu of child support. According to the Department’s records, Ms Werner regarded the payment as a gift from Mr Werner for the children.

9. It is clear from the evidence that the NAP could not be credited against Mr Werner’s child support liability under sections 71 or 71A. I considered whether it could be credited as a prescribed NAP, which includes payments for school uniforms and books which are required by the child’s school. The text messages between Mr Werner and Ms Werner indicate that the laptop computer purchased by Mr Werner was required by the child’s school. I was not satisfied, however, that it can be regarded as a prescribed NAP, because it cannot reasonably be described as a school uniform or as a book. I concluded, therefore, that there is no merit in Mr Werner’s objection to the decision to refuse to credit the $900 payment.

10. I also considered the prejudice to the other party to the child support case, to the Department and to the general public should the extension of time be granted. I concluded that there would be some prejudice to Ms Werner if the extension of time was granted, although this would be limited. I concluded that there would not be any undue prejudice to the Department or the general public in this case if the extension of time application was granted.

Conclusion

1. I carefully weighed the various factors which I had to consider. I concluded that as there is no merit in Mr Werner’s objection, it is not appropriate to grant his application for an extension of time to lodge his objection to the decision of 28 February 2019.

DECISION

The decision under review is affirmed.