Wheaton and Child Support Registrar (Child support)
[2024] AATA 3588
•1 August 2024
Wheaton and Child Support Registrar (Child support) [2024] AATA 3588 (1 August 2024)
DIVISION:Social Services & Child Support Division
REVIEW NUMBER: 2024/PC027835
APPLICANT: Ms Wheaton
OTHER PARTIES: Child Support Registrar
TRIBUNAL:Member M Martellotta
DECISION DATE: 1 August 2024
DECISION:
The decision under review is affirmed.
CATCHWORDS
CHILD SUPPORT – extension of time to object – reasons for the delay – prejudice to the other party – merits of the substantive application – non-agency payment – 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
This review concerns a decision made by Services Australia (Child Support) to refuse Ms Wheaton an extension of time within which to object to a decision.
According to Child Support records, on 9 June 2021 Child Support decided to credit $45,457.80 against the payer’s child support liability (non-agency payment or NAP). Ms Wheaton objected to the decision on 16 August 2023. As her objection was more than 28 days from notification of the decision, Ms Wheaton requested an extension of time within which to object.
On 20 March 2024 Child Support refused to grant an extension of time to lodge an objection. Ms Wheaton has asked the Tribunal to review that decision.
On 16 July 2024 Ms Wheaton requested the hearing of her application be rescheduled because she needed more time to obtain medical evidence. The reschedule application was not granted by the Tribunal.
Ms Wheaton attended a hearing in person to present evidence and submissions on 24 July 2024. Other evidence before the Tribunal included the Child Support file (105 pages). The Tribunal provided Ms Wheaton the opportunity to provide further information post hearing (A1-A2).
ISSUES
The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act1988 (the Act) and the Child Support (Assessment) Act 1989 (the Assessment Act).
The issue which arises in this case is, should Ms Wheaton be granted an extension of time to lodge her objection to a decision made by Child Support?
CONSIDERATION OF EVIDENCE, SUBMISSIONS AND THE LAW
Section 80 of the Act provides that a person may lodge an objection in writing to Child Support in relation to specified decisions made by Child Support. This includes decisions to credit an amount received by the payee of a registrable maintenance liability (NAP decision). Section 81 of the Act provides that a person must lodge an objection to such a decision within 28 days after a notice of the decision is served on them.
In cases where the lodgement period has passed, a person may send an objection along with an extension of time application requesting that Child Support treat the objection as having been duly lodged (section 82 of the Act). 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 in time.
Child Support must consider and either grant or refuse the application for an extension of time to lodge an objeciton. If the application is granted, then the person is taken to have lodged the objection (section 83 of the Act). If the application is not granted, a person may apply to this Tribunal for review of a decision on an application for an extension of time to lodge an objection(section 89 of the Act).
Notice of a decision may be served pursuant to the provisions of child support legislation. This includes sending the notice by prepaid post to that person’s address for service. Unless the contrary is proven then services by prepaid post are taken to have come into effect at the time when the notice would, in the ordinary course of post, have arrived at the address. Where a person has consented to receiving a notice electronically, then service includes delivery of the notice electronically.
According to Child Support records:
a)Child Support registered an overseas maintenance liability (the Austrian order) in which Ms Wheaton was the payee and [Mr A] the payer. The case commenced from 8 July 2020 as Child Support collect.[1]
[1] Page 94
b)Arrears under that assessment had accumulated and were owed by [Mr A].
c)Following arbitration Ms Wheaton and [Mr A] entered into consent orders pertaining to financial settlement. This included an agreement for the payment of the arrears.
d)Child Support made contact with [Mr A] on 21 May 2021 and advised that the arrears owed as of the date of contact was $43,091.29. [Mr A] confirmed that once the orders had settled and been sealed, he would make payment.
e)On 31 May 2021 [Mr A] had further contact with Child Support. He noted that he was concerned that if he made the lump sum payment to Child Support, Ms Wheaton would not receive the funds in a timely manner as she was in the process of purchasing a property. [Mr A] was advised of the option of making a direct payment to Ms Wheaton and have the payment credited as non-agency payment if the parties mutually agreed that the payment was in lieu of child support.
f)On 31 May 2021 Child Support spoke with Ms Wheaton who stated that there was an issue with [Mr A] making payment of $43,091.29 as he was claiming this formed part of her agreed settlement amount of GBP510,000. She advised that she would not accept payment on that basis and had advised [Mr A] to not make the payment.
g)On 3 June 2021 Ms Wheaton advised Child Support she had not received the direct payment.
h)On 7 June 2021 Ms Wheaton advised Child Support she had not received the payment but knew it was on its way as she had received confirmation of this and was confident that [Mr A] would not have left her in the position of not purchasing the house.
i)On 9 June 2021 Child Support made a decision to accept payment of $45,457.80 to Ms Wheaton and to credit this against [Mr A]’s child support liability as a non-agency payment. The decision records that the payment was made directly to Ms Wheaton on 8 June 2021. The notation indicates that there was a discussion with Ms Wheaton. It notes that Ms Wheaton had reported receipt of the payment and she was advised of the potential impact upon family assistance payments and she would need to check with Centrelink in that regard.
j)A notice of the decision dated 9 June 2021 was sent to Ms Wheaton. It is recorded that Ms Wheaton read the notice of decision online.
k)On 16 August 2023 Ms Wheaton contacted Child Support stating she wished to object to the decision as she made the decision under duress. She provided a note which stated she wishes to raise an objection to the extraordinary payment received on 8 June 2021 of $45,457.80.
l)On 22 August 2023 she provided written submissions setting out her objections and reason for delay. She states that [Mr A] was required to clear her child support arrears but he did not do so as the payment was made as part of her lump sum settlement.
According to written submissions provided to Child Support, Ms Wheaton stated that:
a)She now contests the basis on which the payment was made, which she states was contrary to agreed terms of a financial settlement finalised in the United Kingdom in 2021.
b)The terms of the settlement were oppressive, and she was ordered to accept the direct payment under duress.
c)She was unaware she had review rights.
d)She has a Centrelink debt of $11,511.25.
At hearing Ms Wheaton provided the following submissions and evidence:
a)She was never in agreement with the outcome of an arbitration and the final orders reached between herself and [Mr A] in which it was determined that [Mr A] was to pay arrears of child support owed under the registration of the overseas (Austrian) maintenance order and that those arrears would be deducted from a lump sum amount to be paid to her.
b)She felt under duress in those negotiations. In her view the Child Support arrears were a debt owed to the Commonwealth and not privately owed to her and on that basis deducting the amount from the lump sum meant she has repaid that debt.
c)She has not been able to initiate proceedings in the United Kingdom to seek variation of those orders. She has sought advice from Australian solicitors and has been advised to see if the issue can be resolved through Child Support.
d)She did receive a direct payment from [Mr A], but it was apparent to Child Support that she accepted the direct payment under duress.
e)Acceptance of the non-agency payment created a significant family assistance debt.
f)Her case raises complex legal issues involving three jurisdictions.
g)[Mr A] does not suffer prejudice should an extension of time be granted as he has always known that she did not agree to the arrears being paid from the lump sum settlement amount.
The Tribunal referred Ms Wheaton to a copy of a letter from her UK solicitors[2] which attached draft orders following arbitration. They refer to paragraphs 23-25 of the orders, which deal with the arrears of child support owed by [Mr A], and state ‘As you know this amount will be deducted from the lump sum of GBP510,000 due to you.’
[2] Hearing papers, page 48
Ms Wheaton stated that whilst this was the position ultimately reached between the parties in final orders, she never agreed and felt the issue was not properly dealt with in the arbitration. She otherwise agreed that she was legally represented in those proceedings.
The Tribunal asked Ms Wheaton whether she recalled the discussions leading up to the Child Support decision, as well as the discussions noted as occurring on 9 June 2021 in which she confirmed receipt of the payment and the possible impact on her family assistance payments. Ms Wheaton said that she did not have a clear recollection of those discussions nor of reading the notice of decision dated 9 June 2021.
She said that at the time she was experiencing a high level of stress, trauma and depression. She and the children were forced to move from a rental property and she was finalising the purchase of a property. She was also involved in moving into the property. One of her children who has special needs was also requiring a high level of support.
She did not appreciate that the decision to accept the NAP would result in a family assistance debt. It was only when an internal review of that decision by a Centrelink authorised review officer was concluded in 2023 that it became apparent to her that the cause of that debt originated with the Child Support decision, and this is what prompted her objection.
Following the hearing Ms Wheaton provided a letter from her GP which states that Ms Wheaton has clinical depression and anxiety, diagnosed in February 2020 related to marital and financial abuse and that the condition impacts on her ability to concentrate and process legal and other matters relating to her ex-husband and child support. Further, it notes that Ms Wheaton has dyslexia and is under significant stress, which exacerbates difficulties processing and understanding legal and other documents that need to be acted upon. Ms Wheaton also provided an email sent by her former husband to her sister which she says evidences his intention to not comply with the Austrian orders until other arrangements are made.[3]
[3] A2
The exercise of the discretion as to whether or not to grant an extension of time is on the basis of whether it is reasonable or proper to grant the application. A number of decisions provide guidance to the Tribunal in determining this issue. It is clear from those decisions that the statutory time limit of 28 days is to be enforced unless there are acceptable reasons for departing from this prescribed time frame.
The relevant factors to be taken into consideration when deciding an application for extension of time have been considered in various decisions. The Child Support Guide[4] refers to factors which appear to be based upon principals identified by the Federal Court in Hunter Valley Developments Pty Ltd v Cohen[5] (Hunter Valley Developments). The Federal Court identified six factors to take into account when deciding whether to grant an extension of time:
· 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] 4.1.5
[5] (1984) 3 FCR 344
In Brown v Commissioner of Taxation[6], Hill J reviewed the principles set out in Hunter Valley Developments and noted that those factors serve as a guide and were not exhaustive. In Saxena & Child Support Registrar[7], the Court stated that the Tribunal, in reviewing a decision made by the Registrar to refuse an extension of time in which to object, properly proceeded by considering factors identified in the case of Re Mulheron and Australian Telecommunications Corporation[8] The factors identified in that case are substantially the same as those set out in Hunter Valley Developments.
[6] [1999] FCA 563
[7] (SSAT Appeal) [2010] FMCAfam 1416
The Tribunal considered the reason for the delay and what action was taken by Ms Wheaton to make Child Support aware that the finality of the decision was contested.In this matter the Tribunal is satisfied and finds that Ms Wheaton was orally advised of the decision to accept the direct payment as a NAP and that she also received written notice of the decision dated 9 June 2021. The Tribunal finds that Ms Wheaton accessed and read the notice of decision online as reflected in the Child Support records on 9 June 2021.[9]
[9] Hearing papers, page 75
The Tribunal finds that Ms Wheaton did not take action to make Child Support aware that the decision made on 9 June 2021 was being contested until she made contact on 16 August 2023.
The Tribunal accepts that Ms Wheaton was experiencing high levels of stress associated with circumstances associated with the end of her marriage, the state of her own health, the special needs of her children, and moving home at the time she received notice of the decision. The Tribunal also accepts that she has dyslexia. The Tribunal is sympathetic to those circumstances. However, the Tribunal concludes that these were not the reason for the delay in bring her objection. Ms Wheaton was aware of the decision that had been made. The underlying reason for not making her objection until August 2023, as stated at hearing, was that Ms Wheaton was motivated to lodge an objection upon conclusion of the Centrelink review of her family assistance debt in August 2023, when it was explained that the family assistance debt was a consequence of the Child Support decision.
The Tribunal notes that prejudice to the other party is also a relevant consideration. The Child Support Guide[10] notes that the Registrar will take into account whether granting an extension of time and the delay caused by a late objection may give rise to an overpayment or arrears – this would be contrary to one of the objectives of child support legislation, which is expressed as "that periodic amounts payable by parents towards the maintenance of their children are paid on a regular and timely basis”.[11]
[10] 4.1.5
[11] Section 3 of the Act
Ms Wheaton states that she seeks to have the arrears against [Mr A] reinstated. This position appears to be premised on her dissatisfaction with the outcome of the arbitration and the consent orders in which those arrears were to be taken from the lump sum settlement. In the Tribunal’s assessment, granting the extension of time would cause prejudice to the other party and would frustrate the objects of the legislation. This is particularly given that the payment of the arrears amount followed on from the arbitration of the settlement of financial matters between the parties.
The Tribunal is not satisfied of the merits of the substantial application, which pertains to the decision to credit a direct payment made by [Mr A] as a non-agency payment. Paragraph 71(1)(a) of the Act refers to the payee of an enforceable maintenance liability who receives from the payer an amount intended by both payer and payee to be paid in complete or partial satisfaction of an amount payable under the liability in relation to the child support enforcement period. These payments are referred to as non-agency payments. The Child Support Registrar (and on review, the Tribunal) may refuse to credit amounts if satisfied that, in the circumstances of the particular case, the amount ought not to be credited (section 71D of the Act).
An enforceable maintenance liability is a registered maintenance liability enforceable under the Act.[12] When an overseas court order or assessment is made that was a registerable overseas liability it gives rise to a registerable maintenance liability. A payee may elect not to have the liability registered at the time of making the application (private collect) but they can later elect to have it registered (Child Support collect). As noted in this case, an overseas enforceable maintenance liability was registered as Child Support collect from 8 July 2020.
[12] Section 4 of the Act
Following arbitration, the parties agreed on orders whereby the arrears owed pursuant to that case would be paid by [Mr A]. He was required to contact Child Support to make those arrangements. It is agreed by Ms Wheaton that she subsequently received the payment directly from [Mr A] to assist in the settlement of a property she had purchased.
As noted, Ms Wheaton states that she was never happy or agreeable to the terms of settlement, which included how the child support arrears were to be finalised and for that reason she states she only accepted the direct payment under duress. It appears to the Tribunal that Ms Wheaton, with the benefit of legal representation and advice at the time, entered into orders in terms that reflected the outcome of the arbitration, namely that the child support arrears owed by [Mr A] were to be paid out of the lump sum settlement. In this case the mutual intention of the parties is reflected in the outcome of the arbitration as expressed in the orders which settled the financial aspects of the marriage.
The Tribunal also considered that ultimately Ms Wheaton seeks to address her issues with the terms of the settlement and the family assistance debt through Child Support processes. Ms Wheaton states she has sought legal advice to challenge the terms of the settlement. This appears to be an alternative mechanism by which she can seek redress of those underlying issues. Likewise, the other issue raised by her is the family assistance debt and again, Ms Wheaton has separate review rights in that regard.
The Tribunal is also cognisant of the general public’s expectation that government agencies and statutory bodies perform their functions quickly and fairly to promote reliable outcomes in the most cost-effective manner. At the same time, the Tribunal notes that it is also important to consider individual circumstances.
As noted, relevant authorities confirm the prima facie rule that proceedings outside of legislated prescribed periods will not be entertained unless it is proper to do so. Parliament has prescribed time frames in child support legislation for lodging objections to decisions made by Child Support. Other persons in a like position to Ms Wheaton are similarly advised and are subject to those prescribed time frames.
For these reasons, the Tribunal decides that the extension of time to lodge an objection is refused.
DECISION
The decision under review is affirmed.
[8] [1991] AATA 673
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