Witting and Child Support Registrar (Child support)

[2022] AATA 1182

Witting and Child Support Registrar (Child support) [2022] AATA 1182 (23 February 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/PC022793

APPLICANT:  Ms Witting

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member S Hoffman

DECISION DATE:  23 February 2022

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides as follows:

• Ms Witting’s request for an extension of time to lodge an objection to the decision made on 20 September 2021 is granted.

CATCHWORDS

CHILD SUPPORT – application for extension of time - satisfactory explanation for delay – some merit – no prejudice to the other parent or general public - extension of time refused – decision set aside and substituted

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] is the parent liable to pay child support to Ms Witting in respect of [Child 1] and [Child 2].   

2. On 20 September 2021, Services Australia – Child Support (the CSA) made a decision to change the child support assessment for the period from 21 July 2015 to 8 September 2021. This reduced Mr [A]’s child support liability and created an overpayment by him to Ms Witting of $10,276.65 (the original decision).

3. Generally, a person has 28 days in which to lodge an objection to an original decision made by the CSA.

4. On 24 October 2021, the CSA received Ms Witting’s objection to the original decision. In the form she used to lodge the objection, she gave reasons for not lodging her objection within 28 days of receiving the original decision. That was taken to be a request for an extension of time (EOT). If granted, Ms Witting’s objection could be considered.

5. On 16 November 2021 the CSA decided not to grant an EOT to Ms Witting (the EOT decision).

6. On 22 November 2021, Ms Witting sought a review by this tribunal of the EOT decision. The matter was heard on 23 February 2022. The tribunal had before it a bundle of documents provided by the CSA (numbered 1 to 270), a copy of which had been provided to Ms Witting.

7. Ms Witting 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 issue which arises in this case is whether an EOT should be granted to Ms Witting so that her objection to the decision made 20 September 2021 can proceed.   

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.[1]

   [1] 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.

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 EOT 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 EOT application, and if granted, to deal with the objection.

Evidence and consideration of evidence

1. The original decision was made on 20 September 2021 and notified to Ms Witting on that date via the online system. As Ms Witting lodged her objection on 24 October 2021, she was out of time by six days.

2. The tribunal is required to consider whether it should grant an EOT for Ms Witting to lodge her objection to the decision made on 20 September 2021. 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 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. This tribunal will therefore consider this matter under the following headings:

   ·    Did Ms Witting rest on her rights?

   ·    Is there any prejudice to the other parent?

   ·    Is there any prejudice to the general public?

   ·    Is there merit in reviewing the substantive application?

   ·    Is it fair to grant the EOT?

6. As general background to the case, it started on 21 July 2015 on a private collect basis (the parents made their own arrangements about the payment of child support). The CSA became involved with the collection of child support from 28 June 2018.

Did Ms Witting rest on her rights?

1. An officer from the CSA, [Ms B], rang Ms Witting on 20 September 2021, the day the original decision was made, to tell her about the decision. [Ms B] recorded that Ms Witting said she would object to the original decision.

2. Ms Witting told the tribunal that the officer told her that the objection form would be mailed to her. She said that she asked if she could download it, or if it could be emailed to her, and was told no; the form had to be mailed to her.

3. According to the CSA’s documents, Ms Witting rang the CSA on 12 October 2021 and spoke to an officer called [Ms C]. According to [Ms C]’s record of the phone call, Ms Witting told her that [Ms B] had not sent her the objections form. [Ms C] wrote that she advised Ms Witting that she would send the form out that day. She also recorded that a complaint process had been started.

4. Ms Witting told the tribunal that despite two officers from the CSA telling her they would mail the form to her, neither did. She said it was only when she spoke with an officer named [name deleted] that she was told how to access the form online. Ms Witting told the CSA that she was told on 14 October 2021 that she could download the objection form herself. This was a mere four days before the end of the 28-day period.

5. According to the CSA records, Ms Witting also contacted the CSA on 18 October 2021, to follow up on her previous phone call.

6. Ms Witting told the tribunal that after calling the complaints escalation line and speaking with an officer, that officer called her back a week later, and told Ms Witting she had listened to the two earlier phone calls (with [Ms B] and [Ms C]) and agreed with the substance of Ms Witting’s complaint. Ms Witting said she was told that she had been given incorrect information about the objection form as it could be downloaded.

7. The tribunal cannot verify this as details of the complaint process are not included in the CSA documents. However the tribunal has no reason to doubt Ms Witting’s account of what occurred in her dealings with the CSA in this regard as the dates of some contacts and the content of some conversations are included in the documents, and Ms Witting’s evidence was consistent with these.

8. The tribunal notes that the CSA decision to refuse to grant the EOT stated that Ms Witting had previously lodged an objection to a CSA decision on 28 July 2020 which was within the required 28-day period; that showed that she was aware of the objection process.

9. Ms Witting told the tribunal that in order to lodge that objection in July 2020, the CSA had mailed the form to her. The tribunal cannot verify this.

10. Given the number of times Ms Witting contacted the CSA during the 28-day period; that there was mention of her intention to lodge an objection on a number of occasions; that there is evidence she was wrongly advised on two occasions that the relevant form would be mailed to her; and that she made a formal complaint during the 28-day period, the tribunal is satisfied that Ms Witting did not rest on her rights.

Is there any prejudice to the other parent?

1. As Ms Witting was over time by less than a week, the tribunal cannot see how granting the EOT 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 Ms Witting was twice given incorrect information by the CSA which delayed her in lodging her objection. 

3. Given the evidence set out above, the tribunal does not consider that there would be prejudice to the general public if the EOT was granted. It is appropriate that an EOT is granted in these particular circumstances.

Is there any merit in reviewing the substantive application?

1. It is unclear to the tribunal if a review of the substantive decision would result in a different decision being made because the documents do not include sufficient information.

2. It is apparent from the documents that a multi-case allowance on behalf of Mr [A] was factored into the child support assessment during 2021. This was backdated to 2015 which created an overpayment for Ms Witting.

3. The CSA documents include the following, dated 29 October 2021:

   Information is not always provided in a timely manner however regardless off [sic] when the decision was made Australia will apply it from when it was relevant. This is why the assessment was backdated to apply the NZ liability to the Australian assessment.[2]

   [2] Page 188 of the CSA documents

4. It is not clear from the CSA documents before the tribunal when Mr [A] provided the information relevant to 2015. Did he do so then or in 2021? Did the New Zealand authorities have the information from 2015 but failed to pass it on to the Australian authorities at the time? Did the New Zealand authorities have the information in 2015 and passed it on to the Australian authorities in timely fashion, but the Australian authorities failed to act on it at the time?

5. Ms Witting said that she had contacted the New Zealand authorities and was told they do not backdate this kind of information.

6. The original decision sent to Ms Witting stated that an amount of $10,276.65 was overpaid. It was sent with reissued assessment notices covering the period from 21 July 2015 to 8 September 2021. None of these documents include calculations that show how the overpayment amount was worked out. The tribunal cannot say with certainty that if there is an overpayment, that the amount is correct.

7. The documents provided by the CSA for this EOT review include the original and the reissued assessment notices. A comparison of these suggests that the overpayment amount is correct but the calculation needs to be set out to allow for it to be properly verified.

8. The tribunal is of the view there is merit in the objection process going ahead as there is a possibility that it will lead to a different decision being made.

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. In this case the tribunal is strongly of the view that it is fair to Ms Witting to grant the EOT, for the following reasons.

3. Ms Witting had no reason to suspect that she may have been overpaid child support over a number of years. Being advised of this was a shock to her. The CSA, to their credit, phoned her to let her know that she had been overpaid rather than just advise her in writing. From the CSA’s records, an explanation was given in the phone call as to how the overpayment arose but it was not, in the tribunal’s view, an adequate explanation, for reasons set out above when discussing the merit of the substantive review.

4. The letter sent to Ms Witting on 20 September 2021 simply advised that the CSA had made a change to her child support records from 21 July 2015 to 8 September 2021 which meant that Mr [A] had overpaid her by $10,276.65. No explanation was given in the letter as to how that amount was calculated or how the overpayment arose.

5. In addition, Ms Witting was told on two occasions the relevant form would be mailed to her and not that she could download it herself. The second occasion was on 12 October 2021, in the final week of the 28-day period. Ms Witting’s evidence was that she was told on 14 October 2021 that she could download the objection form. This was a mere four days before the end of the 28-day period.

6. Generally, a person is required to lodge an objection in writing. There is no requirement upon them to do so on the CSA form.[3]

   [3] If a person wants to object to a care percentage decision, they can do that verbally as well as in writing. Information about lodging an objection can be found the CSA’s Child Support Guide here -

1. The tribunal is satisfied that being given the wrong information by CSA officers was a significant factor in Ms Witting not lodging her written objection within the required timeframe.

Conclusion

1. The tribunal determines that it would be fair and equitable, and proper, to grant Ms Witting’s EOT request.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides as follows:

• Ms Witting’s request for an extension of time to lodge an objection to the decision made on 20 September 2021 is granted.