Young and Child Support Registrar

Case •

[2001] AATA 643

•

11 July 2001

DECISION AND REASONS FOR DECISION [2001] AATA 643

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2001/693

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      STEPHEN JOHN YOUNG           
  Applicant
           And    CHILD SUPPORT REGISTRAR
  Respondent

DECISION

Tribunal       M J Sassella, Senior Member      

Date11 July 2001

PlaceSydney

Decision      The Tribunal's decision is:

  1. The Applicant's request for a stay of the decision under review is rejected.

  1. The Tribunal directs the Respondent to file and serve its statement of facts and contentions by close of business on 1 August 2001.

  1. The Tribunal directs the Applicant to file with the Tribunal and send to the Respondent any written response he might wish to make to the Respondent's statement of facts and contentions by close of business on two weeks after he receives the Respondent's statement, if he wishes to respond in writing.

  1. The Tribunal registry is to vacate the preliminary conference listed for 1 August 2001.

  1. The Tribunal registry is to list this matter for its full hearing as soon as possible after 1 August 2001.

    [Sgd] M J Sassella
      Senior Member
    CATCHWORDS
    Child support – extension of time for making objection – request for stay of the reviewable decision
    Child Support (Assessment) Act 1989, ss 98X(1)(c), 98Y Item 3, 98Z(1), (2), 98ZA, 98ZC, 98ZD, 98ZE(1), (3), (4), (7), (8), 98ZG, 98ZH, 140
    Administrative Appeals Tribunal Act 1975, s 41 (2), (4)

REASONS FOR DECISION

11 July 2001 M J Sassella, Senior Member                  

History of the application

  1. On 13 October 2000 a delegate of the Child Support Registrar ("the Respondent") made a decision in respect an application by Stephen John Young ("the Applicant") to change his assessment concerning his liability to pay child support in relation to the period from 5 April 2000 to 30 September 2000 (T3).

  2. On 19 October 2000 the Respondent wrote to the Applicant notifying him of the decision (T4).  That letter informed the Applicant of his right to object and how and when he would need to exercise such a right.

  3. The Applicant understood that an objection had been lodged with the Respondent by solicitors acting on his behalf and that this was done by fax on 17 November 2000.  The Respondent has no record of ever having received that communication, assuming it was sent.

  4. After a number of discussions between officers in the Respondent's agency and the Applicant's solicitor a proper letter of objection was received by the Respondent on 13 March 2001 (T12).  A request for an extension of time for making the objection was also enclosed.

  5. On 30 April 2001 the Respondent determined to refuse the application for an extension of time for lodging an objection and notice of this decision was sent to the Applicant (T14).

  6. On 28 May 2001 the Applicant lodged with the Administrative Appeals Tribunal ("the Tribunal") an application for review of the Respondent's decision to refuse the extension of time.

  7. On 6 June 2001 the Applicant lodged with the Tribunal a request for an order about the operation or implementation of a decision.  He sought a stay hearing.  He wrote, "I have been ordered by C.S.A. to pay $230 per week child support.  My average weekly drawing from my partnership is approx. $290 per week.  I asked that the amount of $230 per week be stayed until a decision by the A.A.T. has been made on my application.  Please see application no. N2001/693 and my application to waive fees for full details of my financial situation and appeal grounds."
    Appearances

  8. On 4 July 2001 the Tribunal convened by telephone a stay hearing.  The Applicant represented himself.  Ms Jean Cuthbert, Senior Adviser, Legal Services, in the Child Support Agency, represented the Respondent.
    Documentary material

  9. The Tribunal had the benefit of access to the following documentary evidence:

  • Exhibit TD1 – Section 37 Statement and associated documents lodged by the Respondent, 26 June 2001.

  • Exhibit TD2 – Applicant's request for an order about the operation or implementation of a decision, 6 June 2001.

  • Exhibit R1 – Letter dated 12 June 2001 from Ms Cuthbert on behalf of the Respondent addressed to the Tribunal.

Legislation

  1. Legislation relevant to the application for a stay decision is:
    the Child Support (Assessment) Act 1989, ss 98X(1)(c), 98Y Item 3, 98Z(1), (2), 98ZA, 98ZC, 98ZD, 98ZE(1), (3), (4), (7), (8), 98ZG, 98ZH, 140, and the Administrative Appeals Tribunal Act 1975 s 41(2), (4).

Child Support (Assessment) Act 1989

"98X Decisions against which objection may be lodged
(1) A person may lodge with the Registrar an objection in writing to any of the following decisions of the Registrar:
…
(c) as to the particulars of an administrative assessment;
…"

"98Y Who may lodge objection The persons who may lodge objections against a particular kind of decision are as set out in the table below.
…
3

As to the particulars of an administrative assessment        Carer entitled to child support  Liable parent            

…"

"98Z Time limits on lodging objection
General rule
(1) An objection to a decision under this Part must be lodged by a person within 28 days after service of notice of the decision on the person unless:
(a) the decision is a refusal decision; or
(b) one of the grounds of objection to the decision is based on a refusal decision.
Meaning of refusal decision
(2) A refusal decision is any of the following:
(a) a decision under Part 6A refusing to make a departure determination;
(b) a decision under section 60A refusing to accept an estimate election;
(c) a decision under section 66A refusing to grant an application to reduce the annual rate of child support payable to nil;
(d) a decision under section 151C refusing to accept an application to continue an administrative assessment or a child support agreement in force after a child's 18th birthday.
…"
"98ZA Grounds of objection An objection must state fully and in detail the grounds of objection relied on."

"98ZC Consideration of objections by Registrar
(1) The Registrar must:
(a) consider an objection lodged under this Part, and any notice of opposition or support lodged under section 98ZB; and
(b) either disallow the objection, or allow it in whole or in part, within 60 days after the objection was lodged.
(2) The Registrar must give written notice of the decision to the person who lodged the objection and to any person who lodged a notice under section 98ZB in relation to the objection.
(3) A contravention of subsection (2) in relation to a decision does not affect the validity of the decision."

"98ZE Consideration of applications for extension of time for lodging objections
(1) If a person applies to the Registrar under section 98ZD in relation to an objection, the Registrar must:
(a) consider the application; and
(b) either grant or refuse the application within 60 days after the application was lodged; and
(c) if the Registrar grants the application—deal with the objection under section 98ZC.
…
(3) The Registrar must give written notice of the decision granting or refusing the application to the person who made the application.
(4) The notice must include a statement to the effect that, if the person is aggrieved by the decision, application may, subject to the Administrative Appeals Tribunal Act 1975 , be made to the AAT for review of the decision. Except where subsection 28(4) of that Act applies, the notice must also include a statement to the effect that the person may request a statement under section 28 of that Act.
…
(7) A person aggrieved by a decision under subsection (1) may apply to the AAT for review of the decision.
(8) In subsection (7), decision has the same meaning as in the Administrative Appeals Tribunal Act 1975."

"98ZG Implementation of decisions
(1) When a decision of the AAT under this Part becomes final, the Registrar must immediately take such action as is necessary to give effect to the decision.
(2) If an appeal is not lodged against the decision of the AAT within the period for lodging an appeal, the decision becomes final at the end of the period."

"98ZH Pending objection not to affect assessment Subject to section 140 (Stay orders), the fact that an objection is pending under this Part in relation to a person does not, in the meantime, interfere with, or affect, any administrative assessment made in relation to the person. Any such assessment may be registered under the Child Support (Registration and Collection) Act 1988 , and any amounts of child support and other amounts may be recovered in relation to the assessment, as if no objection were pending."

"140 Stay orders
(1) Where a proceeding has been instituted in a court having jurisdiction under this Act or before the Registrar under Part 6A, a party to the proceeding may, subject to the Family Law Act 1975 , apply to that court, or a court having jurisdiction under this Act, as the case may be, for an order under this section.
(2) If the court considers that it is desirable to do so taking into account the interests of the persons who may be affected by the outcome of the proceeding, the court may make such orders staying or otherwise affecting the operation or implementation of this Act as the court considers appropriate pending the hearing and final determination of the proceeding.
(3) The court may, by order, vary or revoke an order made under subsection (2).
(4) An order under subsection (2):
(a) is subject to such terms and conditions as are specified in the order; and
(b) operates for such period as is specified in the order or, if no period is specified, until the decision of the court determining the proceeding becomes final."

Administrative Appeals Tribunal Act 1975

"41 Operation and implementation of a decision that is subject to review
…
(2) The Tribunal or a presidential member may, on request being made, as prescribed, by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding ), if the Tribunal or presidential member is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal or presidential member considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.
…
 (4) Subject to subsection (5), the Tribunal or a presidential member shall not:
(a) make an order under subsection (2) unless the person who made the decision to which the relevant proceeding relates has been given a reasonable opportunity to make a submission to the Tribunal or presidential member, as the case may be, in relation to the matter; or
(b) make an order varying or revoking an order in force under subsection (2) (including an order that has previously been varied on one or more occasions under subsection (3)) unless:
(i) the person who made the decision to which the relevant proceeding relates;
(ii) the person who requested the making of the order under subsection (2); and
(iii) if the order under subsection (2) has previously been varied by an order or orders under subsection (3)—the person or persons who requested the making of the last-mentioned order or orders;
have been given a reasonable opportunity to make submissions to the Tribunal or presidential member, as the case may be, in relation to the matter.
…"

Hearing

  1. At the hearing it became clear that the Applicant, as he said in Exhibit TD2, was actually interested in a stay of the decision as to the level of his child support liability.  The Tribunal's jurisdiction does not extend to the quantum of the child support liability.  The Tribunal's jurisdiction is to determine only whether the Respondent should have entertained the Applicant's objection although it was submitted late. 

  2. The Tribunal explained to the Applicant that it would not assist him to stay the decision under review by the Tribunal.  It would simply bring about the result that (i) the Applicant's child support liability remains as it currently is determined to be; and (ii) the Applicant's request for an extension of time for notifying his objection would be revived and would be on foot but that would put him in no better position than he is currently pending the normal decision making processes in the Tribunal. 

  3. The Applicant appeared to understand the problem and did not press for the stay.  The Tribunal facilitated discussion between the Applicant and Ms Cuthbert who was extremely helpful in advising the Applicant as to his options.

  4. The parties agreed to the following propositions and matters for action:

  5. The Applicant has two mechanisms available to secure a possible change in his assessment.  He must first have his objection considered by the Respondent.  If that process is not to his satisfaction he can appeal to a court of competent jurisdiction. 

  1. The first step, however, is to have his objection considered by the Respondent.  That requires a decision in the Applicant's favour by the Tribunal in the instant application.  That is, the Applicant must be successful in having the time extended for the lodging of his objection. 

  1. It would be best for the Applicant if the matter could be given an expedited hearing by the Tribunal.

  1. It was agreed that this proceeding had replaced the need for the preliminary conference scheduled for 1 August 2001.

  1. It was agreed that Ms Cuthbert's offer of a statement of facts and contentions, to be lodged within four weeks, would be helpful in readying the matter for a hearing.

  1. Ms Cuthbert agreed to put the Applicant in contact with an officer in the Respondent's agency who could assist the Applicant to formulate his grounds for seeking an extension of time and in understanding the material in Exhibit TD1.

Decision

  1. The Tribunal's decision is:

  2. The Applicant's request for a stay of the decision under review is rejected.

  1. The Tribunal directs the Respondent to file and serve its statement of facts and contentions by close of business on 1 August 2001.

  1. The Tribunal directs the Applicant to file with the Tribunal and send to the Respondent any written response he might wish to make to the Respondent's statement of facts and contentions by close of business on two weeks after he receives the Respondent's statement, if he wishes to respond in writing.

  1. The Tribunal registry is to vacate the preliminary conference listed for 1 August 2001.

  1. The Tribunal registry is to list this matter for its full hearing as soon as possible after 1 August 2001.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member.

Signed:         .....................................................................................
  Associate

Date of Hearing  4 July 2001
Date of Decision  11 July 2001
Self-Represented Applicant  

Representative for the Respondent        Ms J Cuthbert

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