Young and Child Support Registrar

[2001] AATA 790

DECISION AND REASONS FOR DECISION [2001] AATA 790

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No  N2001/693

GENERAL ADMINISTRATIVE DIVISION          )          

Re      Stephen john young

Applicant

And    CHILD SUPPORT REGISTRAR

Respondent

DECISION

Tribunal       Senior Member M D Allen

Date11 September 2001

PlaceNewcastle

ADMINISTRATIVE APPEALS TRIBUNAL             )       No.  N2001/693
  )
GENERAL ADMINISTRATIVE DIVISION  )

Re:       STEPHEN JOHN YOUNG

Applicant

And:       CHILD SUPPORT REGISTRAR

Respondent

DECISION

Tribunal       :        Senior Member M D Allen

Date              :        11 September 2001

Place            :        Newcastle

Direction     :        UPON hearing the Applicant and the solicitor for the Respondent:
  the time in which to lodge an objection to a decision by the

Respondent on the 13th day of October 2000 be extended up to and including 30 March 2001.

(Sgd)  M.D. ALLEN

.............................

Senior Member
CATCHWORDS

CHILD SUPPORT: Application to Extend Time in which to object to decision of the Registrar. Principles to be approved. Former wife not a necessary party to this application.

Child Support (Assessment) Act 1989

REASONS FOR DECISION

Senior Member M D Allen

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.

1. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

1. The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member M D Allen

Signed:         
          ..................................................................................……………………………….

Associate

Date of Hearing  11 September 2001
Date of Decision  11 September 2001

Representative for Applicant     Self-represented
Solicitor for Respondent            Jean Cuthbert, Child Support Agency

DRAFT DECISION  

ADMINISTRATIVE APPEALS TRIBUNAL

Matter No N2001/693
By MR M.D. ALLEN, Senior Member

YOUNG and CHILD SUPPORT REGISTRAR
NEWCASTLE
TUESDAY, 11 SEPTEMBER 2001

MR ALLEN:   The applicant pursuant to a notice lodged with the tribunal on the Twenty Eighth day of May 2001 seeks a review of a decision by the Registrar, The Child Support Agency made the Ninth day of May 2001 which decision refused to extend the time in which to lodge an objection to an assessment decision which was made on the Thirteenth day of October 2000.

The applicant today gave evidence that when he received the decision assessing the amount of child support which he had to pay, that decision being dated Thirteenth October 2000, he attended upon his then solicitor who recommended to him that an objection be lodged.  The solicitor said words to the effect, leave it to me.  It would appear that thereafter the applicant spoke to officers of the Child Support Agency and in the course of those conversations it became apparent to him that they were unaware of any objection having been lodged.

It would appear that the solicitor who had originally dealt with his case was distracted by other matters in his personal life.  That solicitor's partner took over the applicant's case but then, because he was engaged in other litigation, referred him to another firm of solicitors who initiated action on his behalf.  Part of that action was writing to the Child Support Agency seeking an extension of time.  They also included in their letters a copy of a letter dated 17 November 2000 forwarded to the Child Support Agency by the applicant's original solicitors, which letter purported to be an objection to the decision of 13 October 2000.

It has been pointed out in these proceedings by the solicitor for the respondent Child Support Registrar that the actual objection letter of 17 November 2000 is in fact not a proper objection and that no real grounds are disclosed.  That may well be so.  The situation is, however, that immediately upon the final decision rejecting the applicants application to extend time and application was made to this tribunal.

Before me, today, the respondent has quite understandably relied upon the well known principles enunciated by his Honour Wilcox J in Hunter Valley Developments Pty Ltd and Cohen, three Federal Court
reports.  As to the first of those principles, in particular where his

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Honour referred to a statement by Fitzgerald J, as he then was, to the effect that prime facie time limits are to be obeyed, I would simply state that to my mind that statement can no longer be regard as absolute.  See in particular the case of Comcare and Ahearn.  That latter case also points out that the sins of a solicitor should not be visited upon his client.

The applicant has given an explanation for the delay, namely that for whatever reason his solicitor did not act as expeditiously as he might have.  Or, if he did, he did not follow up his actions to confirm.  I have not material before me to say that the purported letter of 17 November 2000 was not, in fact, forwarded to the respondent by way of facsimile.  One would have thought, however, that a hard copy would have been forwarded as a follow-up to the facsimile.  Why the facsimile was not received is difficult to explain.  However, as far as I am concerned today it would appear to me that the applicant did everything within his power to make the respondent aware that he was objecting to the decision.

His Honour, Wilcox J, also speaks of prejudice.  Now, in this case, I cannot see that there would be any prejudice to the respondent.  It has been pointed out to me there could well be prejudice accruing to the applicant's former wife.  In that any objection decision may well affect an amount of maintenance paid to her, but I understand that she would be a party to any review in any event.  That is the time when real objection can be taken by her.  Suffice it to say that the Act does make provision for such decisions to be reviewed by way of an objection.

So far as the merits of the decision are concerned, as was pointed out by his Honour, Hill J, in  Brown v Commissioner of Taxation, this tribunal should not undertake a detailed examination of the merits.  This is particularly so in a case such as the present where the area of law involved is one which is totally outside the purview of this tribunal.  If it were, for example, a taxation decision the tribunal would be better equipped to make comment upon apparent merits.

What has concerned me relating to merits is that the applicant has made a further application to the Child Support Agency and has had the benefit of a decision dated 3 August 2001 which, on its face, followed a conference with the applicant on 31 July 2001.  Prime facie it would seem that what the applicant wished to object to has already been covered and it would be otiose to canvass the matters again in an objection decision.

However, when one reads the reasons for the decision of 3 August 2001 it can be seen on page 4 that the decision-maker did not regard her decision as being a review of the earlier decision of October.  In particular she said:

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By his application Mr Young was effectively attempting to challenge the prior determination in this matter rather than seeking a change of assessment based on new circumstances which have not been considered previously.  The objection provisions contained within the legislation providing internal review mechanism which allow parents to challenge decisions.  That is there is a formalised means for parents to request the Registrar to reconsider a decision that they believe is incorrect and parents are notified of this process.  The child support agency records indicate that Mr Young utilised the objection provisions contained within the legislation but his objection was lodged outside legislative timeframe.

It would appear to me from that and following where the case officer said:

I note that if an extension of time is granted the objection process will consider the validity of the previous decision.  In other words it is not my function nor would it be appropriate for me to assess the correctness of findings made by the previous senior case officer.

In that regard, therefore, I do not regard the decision of 3 August 2001 as in any way covering the same ground as an objection to the decision of October 2000.

It seems to me, therefore, that this is a case where in order to do justice between the parties.  That is to say the applicant in this matter and the respondent in these proceedings the extension of time should be granted.  The former wife will of course be able to make her own submissions upon the substantive application.  However, the decision of this tribunal will be that the extension of time sought by the applicant will be granted.

RECORDED   :   NOT TRANSCRIBED

MR ALLEN:   So the order should be, the time is extended to the thirteenth day of March 2001.

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