Wilbur and Child Support Registrar (Child support)

[2021] AATA 2752

Wilbur and Child Support Registrar (Child support) [2021] AATA 2752 (2 June 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC020746

APPLICANT:  Mr Wilbur

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member S Hoffman

DECISION DATE:  2 June 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – application for extension of time to object – objection has merit – applicant rested on rights – significant prejudice to other parent due to long delay – extension of time refused – decision under review affirmed

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 Wilbur is the parent liable to pay child support to Ms [A] in respect of [Child 1], born  [February] 2013.  

2. On 29 July 2013 the Department of Human Services, now known as Services Australia, via its agency Child Support (the CSA) made a decision to accept an application by Ms [A] for a child support case to be opened from 23 July 2013. The child support case was to assess the rate of child support payable by Mr Wilbur to Ms [A] in relation to [Child 1] (the original decision).

3. According to its records, on 14 December 2020, the CSA received an objection to the original decision.

4. Generally, a person has 28 days in which to lodge an objection to a decision made by the CSA. Because of the time that has elapsed between the date of the original decision and 14 December 2020, Mr Wilbur requested an extension of time (EOT) so his objection could be considered.

5. The EOT was requested on 14 December 2020 and refused on 15 January 2021 (the EOT decision).

6. On 8 February 2021, Mr Wilbur sought a review by this tribunal of the EOT decision. The matter was heard on 2 June 2021.[1]

   [1] For the record, a hearing was originally listed for 14 April 2021 but the tribunal was unable to contact Mr Wilbur at that time on the phone number he provided. The hearing was rescheduled to 2 June 2021.

7. The tribunal had before it a bundle of documents provided by the CSA (numbered 1 to 453), a copy of which had been provided to Mr Wilbur. Mr Wilbur also submitted documents (A1 to A293). Of these, documents numbered A1 to A284 are documents provided to Mr Wilbur by the CSA in response to a Freedom of Information (FOI) request by him.

8. Mr Wilbur gave affirmed evidence via conference telephone.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act1988 (the Act).

2. The main issues which arise in this case are whether Mr Wilbur lodged an objection within the 28 days, and if not, why not; on what date did he lodge an objection and can an EOT be granted.  

CONSIDERATION

Legislation

1. Part VII of the Act is about the procedures related to objections made for certain decisions. Section 79D of the Act gives a simplified outline of Part VII and sets out that the Registrar (the CSA) is required to reconsider a decision to which a person has objected.

2. Subsection 80(1) of the Act requires a person objecting to a decision to make their application in writing.[2]

   [2] There is an exception. Objections do not have to be in writing for care percentage decisions (subsection 80(6) of the Act). The decision relevant to this review is not a care percentage decision but a decision to open a child support case.

3. Section 81 of the Act is about time limits on lodging objections. Relevant to this review, it provides that a person has 28 days after a notice of the decision was served on them, in which to lodge an objection.

4. Section 82 of the Act provides for a person to apply for an extension of time to lodge an objection, after the 28-day period has elapsed. It requires that the application must state fully and in detail the grounds for the application, including the circumstances concerning, and the reasons for failing, to lodge the objection within the 28-day timeframe. It also states that the application must be lodged in the manner specified by the CSA.

5. Subsection 83(1) of the Act requires the CSA to either grant or refuse an extension of time application, and if granted, to deal with the objection.

6. Section 84 of the Act sets out that the objection must state or give fully and in detail the grounds relied on.

Evidence and consideration of evidence

1. More than seven years have elapsed between the date of the original decision – 29 July 2013 – and when the objection was received according to the CSA records, which was 14 December 2020.

2. The tribunal is required to consider whether it should grant an EOT for Mr Wilbur to lodge his objection to the decision made on 29 July 2013. Other decisions provide guidance to the tribunal in this matter. It is clear that generally, the statutory time limit of 28 days is to be enforced unless there are acceptable reasons for departing from this prescribed timeframe.

3. The Federal Court in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment [1984] FCA 176 said at [18]:

   Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper to do so. The “prescribed period” of 28 days is not to be ignored. Indeed it is the prima facie rule that proceedings outside that period will not be entertained. It is a precondition to the exercise in his favour that the applicant for an extension show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time”.

4. In Re Mulheron and Australian Telecommunications Corporation [1991] AATA 673, O’Connor J of the Administrative Appeals Tribunal noted the following principles of relevance to this review:

   ·     It is relevant whether the applicant rested on her [or her] rights or took action to make the decision maker aware that the decision was being contested;

   ·     Any prejudice to the respondent that would be caused by the granting of the extension of time is relevant;

   ·     Any wider prejudice to the general public in terms of disruption to established practice is relevant;

   ·     The merits of the substantial application are relevant; and

   ·     Fairness in granting an extension of time as between the applicant and other persons in like position is relevant.

5. The tribunal will therefore consider this matter under the following headings:

   ·     Did Mr Wilbur rest on his rights?

   ·     Is there any prejudice to the other parent?

   ·     Is there any prejudice to the general public?

   ·     Are there merits in reviewing the substantive application?

   ·     Is it fair to grant the extension of time?

6. Before that, the tribunal will set out some background to the case. Mr Wilbur agrees that he is [Child 1]’s father. His position is that a child support case should never have been started as he and Ms [A] were not separated at the time. They were living together and were in a relationship. In support of this, he submitted an affidavit from Ms [A] dated 18 April 2019 which was lodged with the [Federal] Circuit Court.

7. In her affidavit, Ms [A] stated that she and Mr Wilbur started a relationship in 2008 and separated in early 2015. Although separated they remained living under the same roof at a property at [address deleted]. This was the situation until October 2015, at which time Mr Wilbur moved out. She stated they had one child, [Child 1].

Did Mr Wilbur rest on his rights?

Did Mr Wilbur object within 28 days of being notified of the decision?

1. The sequence of events is as follows.

2. Ms [A] contacted the CSA by phone on 23 July 2013 to register a child support case. The CSA tried to contact Mr Wilbur by phone on 25 July 2013 unsuccessfully and then sent him a letter that day to advise him that Ms [A] had applied for a child support assessment for [Child 1], which named him as the father. The letter said that the CSA wanted to speak to him before processing the application.

3. Mr Wilbur called the CSA on 29 July 2013. According to the CSA, he acknowledged he was the father and agreed that he was named as the father on the register of births.

1. Ms [A] had told the CSA that she had 100% care. During the phone call with Mr Wilbur, according to the CSA, there was a discussion around the actual care and he did not dispute what Ms [A] said. Towards the end of that phone conversation (according to the departmental record), Mr Wilbur was told the case would be registered and assessment letters issued.

2. The same day, 29 July 2013, letters were issued to both parents advising them the child support application had been accepted and that they should refer to assessment notices. An assessment notice for the period 23 July 2013 to 22 October 2014 was issued to each parent on 30 July 2013.

3. Mr Wilbur confirmed at the hearing that the address on the letters was correct. He suggested that he may not have received the letter of 29 July 2013 as he could have been working interstate. The tribunal notes that four days after he was sent the CSA letter dated 25 July 2013, he contacted the CSA.

4. The tribunal is satisfied that Mr Wilbur was properly informed that the application for the child support case had been accepted as the letter advising him of that was sent to the correct address.

5. The decision to accept the application was made on 29 July 2013, and letters notifying the parents of that decision were issued on that date. Allowing time for mail delivery takes the end of the 28-day period to 12 September 2013.

6. Mr Wilbur told the tribunal that he kept trying to tell the CSA that there should not have been a case as he and Ms [A] were a couple when the case started but they would not listen to him. He said that every phone call he had with the CSA, he queried the child support case and tried to dispute it.

7. There is no evidence of Mr Wilbur trying to tell the CSA something was wrong during the period from 29 July 2013 to 12 September 2013, and certainly not of him lodging a written objection in that period. That being the case, the tribunal finds that he did not lodge an objection with the 28-day timeframe.

Did Mr Wilbur object during the period that he and Ms [A] were living together in a relationship (that period being until early 2015 according to Ms [A]’s affidavit and his evidence)?

1. The case was initially private collect; that is, the parents made their own arrangements about collecting the child support payments. The CSA became involved in the collection of child support from 20 February 2014.

2. The tribunal has already found that Mr Wilbur did not object during the 28-period that ended on 12 September 2013.

3. Mr Wilbur next called the CSA on 20 February 2014.[3] According to the record of this discussion, Mr Wilbur advised that he had not been working but would be starting with a new employer soon. He was transferred to the income estimates section of the CSA.

   [3] Pages 29 to 31 of the CSA documents

4. The CSA issued a letter dated 20 February 2014 to Mr Wilbur to advise that the CSA had accepted his income estimate. CSA records detailed the information he provided them with at this time. For example, his year to date income was $6,829 from his employer, [Employer 1], and was $37,293 from his employer, [Employer 2].[4]

   [4] Pages A43 to A47 of the FOI documents

5. The CSA issued a letter dated 20 June 2014 referring to an application for a non-agency payment to be credited against his child support liability. The amount was $370.25 and the payment date was 12 June 2014.[5]

   [5] Pages A66 to A69 of the FOI documents

6. Another non-agency payment for $370.25, made on 5 August 2014, was credited to Mr Wilbur’s child support liability on 6 September 2014.[6]

   [6] Pages A77 to A78 of the FOI documents

7. A letter from the CSA dated 8 September 2014 advises Mr Wilbur that the agency accepted his income estimate to take effect from that date. Mr Wilbur had informed the CSA that his year to date income from his employer, [Employer 3], was $31,837.[7]

   [7] Pages A79 to A82 of the FOI documents

8. On 1 October 2014 the CSA advised Mr Wilbur that his tax refund had been applied to his overdue child support payments. The amount was $176.26.[8]

   [8] Page A110 of the FOI documents

9. On 4 November 2014 the CSA advised Mr Wilbur that a non-agency payment of $220 made on 7 October 2014 was to be credited against his child support liability.[9]

   [9] Pages A113 to A116 of the FOI documents

10. On 12 December 2014 the CSA advised Mr Wilbur that a non-agency payment of $100 made on 7 November 2014 was to be credited against his child support liability.[10]

    [10] Pages A117 to A120 of the FOI documents

11. There is another CSA letter dated March 2015 referring to a non-agency payment made 20 March 2015.[11]

    [11] Pages A131 to A134 of the FOI documents

12. Based on the documents available to the tribunal, there was no record of Mr Wilbur telling the CSA that he and Ms [A] had been living together as a couple until early 2015.

13. Mr Wilbur did not provide a reason as to why he did not lodge an objection in this period. His position was that he tried to tell the CSA but they would not listen to him.

14. The tribunal does not accept that occurred. Mr Wilbur was able to lodge estimates and claims for non-agency payments. He provided detailed financial information about his earnings as part of the process to lodge estimates of income. There is no corroborating evidence before the tribunal that Mr Wilbur tried to inform the CSA that the case should not have been opened, during the period the evidence from each indicates they were living together as a couple. As will be seen in relation to the next period, Mr Wilbur was capable of making his position known.

On what date did Mr Wilbur lodge an objection after he and Ms [A] stopped living together as a couple (which was early May 2015 according to Ms [A]’s affidavit and his evidence)?

1. Based on the affidavit, in early 2015, Mr Wilbur and Ms [A] separated but continued living under the same roof, until about October 2015.

2. The CSA recorded a conversation dated 7 May 2015 during which Mr Wilbur asked how shared care worked. He told the CSA that he was living with Ms [A] and sharing the care when he could. There was no mention in the record of this conversation of him saying that until early 2015, they had been a couple.[12] Nothing specific was said at this time indicating that they had been a couple when the child support case was accepted or that there was a problem with the child support case.

   [12] Page 89 of the CSA documents

3. The earliest record the tribunal could locate of Mr Wilbur informing the CSA that he and Ms [A] had separated recently (that is, a suggestion that they were partnered with each other up to that time) was dated 14 June 2016. He told the CSA that he and Ms [A] had split up in October 2015.[13]

   [13] Page 188 of the CSA documents

4. In a phone call on 24 June 2016, Mr Wilbur told the CSA that he only separated from Ms [A] the previous year. He was advised to submit evidence for the issue to be reviewed. There was no evidence before the tribunal of him provided any written evidence on this point during 2016.

5. Mr Wilbur called the CSA in January 2017 to discuss his circumstances, specifically about the rate of child support he was paying.[14]

   [14] Page 191 of the CSA documents

6. Mr Wilbur contacted the CSA on 3 July 2017 via its online facility to make an FOI application and to apply for an EOT to object. There was no mention of the decision he wanted to object to.[15]

   [15] Page 192 of the CSA documents

7. There is a record of an online message from Mr Wilbur to the CSA dated 20 September 2017. Mr Wilbur wrote that he had not heard back from the CSA about his complaint of a wrongful assessment due to the CSA’s lack of investigation before opening a case. He followed this up with another online message on 22 September 2017 in which he essentially repeated what he had written on 20 September 2017.[16]

   [16] Pages 193 to 194 of the CSA documents

8. The CSA responded on 13 October 2017 and noted the following:[17]

   ·On 29 July 2013, the CSA phoned Mr Wilbur to discuss the new child support case. During this call he confirmed the care arrangements for [Child 1] and that he would pay Ms [A] via bank transfer.

   ·On 20 February 2014 Mr Wilbur phoned the CSA to discuss the income used in the assessment.

   ·On 7 July 2014 Mr Wilbur phoned the CSA and asked for help setting up his online child support account.

   ·On 7 May 2015 Mr Wilbur phoned the CSA and discussed payments he had made directly to Ms [A].

   [17] Pages 195 to 196 of the CSA documents

9. The written complaint lodged on 20 September 2017 by Mr Wilbur illustrates that he had the ability to make his concerns known. However, by that time, it was just over four years after the end the of the 28-day period.

10. The next record of contact was 13 February 2018. This was about the rate of child support Mr Wilbur was required to pay and whether he could afford that.[18]  

    [18] Page 204 of the CSA documents

11. There were no records of further contact until 19 August 2020. The CSA record of that date is titled ‘Eligibility for Child Support’. This appears to be to do with whether the case should have been registered at all. This record states that Mr Wilbur is not named as a parent in a register of births, for [Child 1]. This contradicts what Mr Wilbur told the CSA and told the tribunal.[19]

    [19] Pages 271 to 274 of the CSA documents

12. This was followed up by an online message from Mr Wilbur to the CSA on 17 September 2020, in which he requested an investigation into, and disclosure of, what legal instrument was used to open a case to subsidise the family tax benefit.[20]

    [20] Page 275 of the CSA documents

13. On 19 November 2020 and 9 December 2020, Mr Wilbur followed up on this matter with the CSA and formally lodged his objection on 17 December 2020.

Did Mr Wilbur rest on his rights?

1. The tribunal finds that Mr Wilbur rested on his rights from 13 September 2013 to June 2016, which was when he first raised the issue with the CSA that he and Ms [A] had been partners when the case began. He was advised to submit evidence but failed to do so that year. Again he rested on his rights.

2. Mr Wilbur next raised the issue in July 2017 in writing, although it was unclear from that contact what his proposed objection was about. He followed up in September 2017 in writing, referring to a wrongful assessment due to the CSA’s lack of investigation before opening a case. He did not contact the CSA again about the fact of the child support case being opened until August 2020.

3. The tribunal is of the view that because of what he wrote in July and September 2017, the September 2017 contact could be regarded as him lodging an objection to the July 2013 decision.

4. The tribunal finds that on 20 July 2017, Mr Wilbur lodged an objection in writing to the decision made on 23 July 2013.

5. However, by that time, nearly four years had elapsed since the end of the 28-day period.

6. It is apparent that Mr Wilbur rested on his rights for over three years and no explanation was given as to why that was the case. The tribunal rejects Mr Wilbur’s assertion that he kept trying to complain but was not heard. He did mention his concerns once in a phone call on 24 June 2016 and was advised to follow up in writing, which he did not do at the time.

Is there any prejudice to the other parent?

1. Prejudice to the other party could occur if Ms [A] experienced difficulties in obtaining documents that she might want to submit as evidence, and these difficulties were due to the time that has elapsed since the original decision was made.

2. However, the tribunal notes that Ms [A]’s affidavit lodged with the Federal Circuit Court supports Mr Wilbur’s claim that they were partnered when the case started.

3. If an EOT is granted and an objection decision is made in Mr Wilbur’s favour, there is the possibility that Ms [A] will have a large overpayment of child support and it could also impact payments she has received from Centrelink. The impact on her could be significant.

1. The tribunal finds that the delay in lodging the objection will prejudice the other parent.

Is there any prejudice to the general public?

1. The legislation sets out timeframes in which to lodge objections and the public would reasonably expect that these are observed. However, the legislation also allows for there to be extensions to these timeframes when circumstances warrant.

2. In this case there is no adequate explanation as to why Mr Wilbur did not make his concerns known to the CSA sooner than he did, the earliest date being June 2016. The tribunal rejects his claim that he has been trying to do so since 2013. 

3. Given the facts of this case, the tribunal considers that there would be prejudice to the general public if the EOT was granted as other people are expected to lodge objections within the timeframes.

Are there merits in reviewing the substantive application?

1. The tribunal is satisfied that there would be merit reviewing the substantive application as there is evidence from both parents that they were in a relationship when the child was born and when the case was started in July 2013; they remained as partners until early 2015; and were separated but living under the same roof until October 2015 when Mr Wilbur moved out.

2. Mr Wilbur has claimed that the CSA was at fault in registering the case because they did not get an affidavit or signed declaration from him in or around July 2013 before starting the child support case. The tribunal disagrees with Mr Wilbur on this point.

3. In brief, section 29 of the Child Support Assessment Act 1989 provides for the CSA to open a child support case based on the application and documents accompanying the application. The legislation states that CSA is not required to conduct inquiries or an investigation. The type of document accompanying the application is not specified. The CSA has to be satisfied that a particular person is a parent of the child and can only be satisfied under certain circumstances. One of these circumstances is that the person is named on the birth certificate of the child.

4. As already recorded, when Mr Wilbur called the CSA on 29 July 2013, he acknowledged he was the father and agreed that he was named as the father on the register of births.

5. Based on information Mr Wilbur provided to the CSA from 19 August 2020, it seems that he no longer agrees that he was named as the father on the register of births.

6. However, given what Mr Wilbur told the CSA in July 2013, there was no requirement for the agency to make further inquiries at that time. The tribunal disagrees with Mr Wilbur on this particular point, in that it does not consider the CSA to be at fault.

7. That aside, the tribunal does conclude that there is merit in reviewing the substantive application. The reason for this conclusion is the evidence that the parents were living together as partners when [Child 1] was born.

Is it fair to grant the extension of time?

1. The CSA notifies parties that they can lodge objections to decisions within 28 days. The statutory time limit of 28 days should be enforced unless there are acceptable reasons for the delay.

2. The tribunal asked Mr Wilbur if he and Ms [A] pooled their finances during the period they were together and he was paying child support to her. He said they did. He then modified this, saying that she kept separate what she got in child support and used it to pay for outings for the children.

3. Given Mr Wilbur’s contacts with the CSA during 2013 and 2014, it appears that he did not have an issue with there being a child support case at that time. His conversations with the CSA, and lodging estimates and claims for non-agency payments, suggest he was complicit in this.

4. The tribunal considers it would be unfair to Ms [A] to grant the EOT after so many years when Mr Wilbur failed to lodge an objection within the 28-day timeframe and waited years before doing so. It would be unfair to other people that a person has been granted an EOT after such a long period has elapsed between the original decision and the date of the objection, without a good reason for the delay.

Conclusion

1. Despite there being merit in reviewing the substantive application, the tribunal does not consider it to be fair to Ms [A] or to the general public that the EOT is granted, given the time that has elapsed between the date the decision was notified to Mr Wilbur and when he first made his concerns known to the CSA. Even then, there was a further significant delay before he put his concerns in writing in September 2017. 

2. The tribunal determines that, on balance, it would not be fair or equitable, or proper, to grant the extension of time request.

DECISION

The decision under review is affirmed.