Abar and Child Support Registrar (Child support)

[2018] AATA 4475

Abar and Child Support Registrar (Child support) [2018] AATA 4475 (17 October 2018)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2018/SC014481

APPLICANT:  Mr Abar

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                17 October 2018

APPLICATION:

An extension application made on 3 July 2018 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 16 April 2018 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS
CHILD SUPPORT – extension of time for lodgement of application for review – reasonable explanantion for the delay – application has little merit – extension of time refused

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.

STATEMENT OF REASONS

1. On 3 July 2018 Mr Abar lodged an application with the Administrative Appeals Tribunal (the Tribunal) for an extension of time for review of a child support decision made on 16 April 2018.  The matter was considered on 17 October 2018 on the papers (consistent with the Tribunal’s ‘Child Support Review Directions’).  The Tribunal had before it a bundle of papers provided by the Department of Human Services, Child Support (the Child Support Agency).

2. Mr Abar and [Ms A] are the parents of [Child 1] (born November 2000), [Child 2] (born April 2004), [Child 3] (born June 2009) and [Child 4] (born December 2013).  Child support was registered for assessment by the Child Support Agency on 14 September 2016 and Mr Abar is the liable parent.

3. On 18 August 2017 [Mrs A] applied for a change to the administrative assessment and on 13 February 2018 the Child Support Agency made the decision to set Mr Abar’s child support liability at $5,000 per annum for the period from 15 November 2017 to 31 December 2019.

4. This was done to reflect the income, property and financial resources of Mr Abar (the ground commonly referred to as Reason 8A).

5. On 7 March 2018 Mr Abar objected to the change of assessment and on 16 April 2018 the Child Support Agency disallowed the objection (the objection decision).  As a result there was no change to the rate of child support.

6. The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (the Act) and the Child Support (Assessment) Act 1989 (the Assessment Act).

7. The issue which arises in this case is whether or not to grant Mr Abar’s request for an extension of time to submit an application for review of a child support decision.

8. Part VIIA Division 2 of the Act sets out the procedures for applying to the Tribunal for a review of an objection decision made by the Child Support Agency as well as applying for an extension of time for such a review in the event the application is not made within the prescribed period.

9. Subsection 29(2) of the Administrative Appeals Tribunal Act 1975 establishes that an application for review must be made within 28 days of being served with notice of the decision.

10. If the 28 day period to apply for review has ended then a written application for an extension of time can be made under section 91 of the Act. As Mr Abar was served with notice of the objection decision by electronic means on 16 April 2018, the Tribunal is satisfied that an extension of time was required.

11. Under subsection 92(1) of the Act, the Tribunal must consider and grant or refuse an extension application. In doing so, the Tribunal considers the guiding principles for the exercise of discretion to allow an extension of time as set out in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186. In that case, the Federal Court said that an extension of time should not be granted unless satisfied it was proper to do so, noting that, in general, applications or proceedings commenced outside of a prescribed time limit will not be considered.

12. A review of other relevant authorities establishes that when considering whether or not to allow an extension of time, the Tribunal should consider and balance a range of factors.  These factors are a guide and are not exhaustive, but generally include:

    ·the reasons for the delay and whether the applicant rested on their rights;

    ·the merits of the substantive application;

    ·any prejudice to the other party including any difficulties they will experience in providing evidence as a result of the delay;

    ·any prejudice to the general public; and

    ·fairness in granting an extension of time.

Reasons for the delay

1. The Tribunal finds that Mr Abar’s application on 3 July 2018 in relation to the objection decision made on 16 April 2018, sent to him by electronic means, was approximately 50 days out of time.

2. In seeking an extension of time, Mr Abar states as the reason for the delay that he was overseas when the letter was sent and returned on 24 May 2018.  Mr Abar said that he then also had difficulty accessing his myGov account due to a password problem.

3. The Tribunal notes in evidence provided by Mr Abar a detailed travel itinerary showing that he departed Australia for [Country 1] [in] March 2018 and returned to Australia [in] April 2018.  Mr Abar also provided booking details for a second trip to [Country 1] departing Australia [in] May 2018 and returning [in] May 2018.

4. As Mr Abar returned from his first overseas trip [in] April 2018 and did not depart for his second overseas trip until [May] 2018, the Tribunal is of the view he had time during the intervening period to deal with the objection decision made on 16 April 2018.  Mr Abar has also said, however, that he could not access his correspondence due to issues with his myGov account.  Additional evidence from the Child Support Agency confirms he did not open the letter until 17 June 2018.  His application to the Tribunal was then submitted approximately two weeks later on 3 July 2018.

5. Although Mr Abar has not explained when he began having issues with his myGov account or what action he took to rectify the situation, the Tribunal accepts this may have meant he could not access his correspondence from the Child Support Agency and was therefore unable to submit his application for review within the required timeframe.

Merits of the application

1. Mr Abar is seeking review of an objection decision which affirmed the change of assessment decision made on 13 February 2018.  It set his child support liability at $5,000 per annum for the period from 15 November 2017 to 31 December 2019.  Mr Abar had been assessed as liable to pay child support at the statutory minimum annual rate of $427 for the period from 1 January 2018, based on his 2016-17 adjusted taxable income of $10,806. 

2. During the original decision process, Mr Abar told the Child Support Agency that he received no income from any source. Mr Abar provided a copy of his 2016-17 tax return showing his occupation as “[occupation]” from which he earned a net income of $1,923.  Bank statements received from Mr Abar showed he was also in receipt of Centrelink benefits. 

3. Investigations undertaken by the Child Support Agency found that Mr Abar had converted a property he owned into a 14 bedroom boarding facility.  Although Mr Abar had been ordered by the relevant local council to return the property to its original four bedroom configuration by 30 November 2016, the Child Support Agency could find no evidence to confirm this had been done.  In addition the Child Support Agency found that Mr Abar had renewed his registration as [another occupation] on 14 January 2018.

4. While unable to determine that Mr Abar earned an income from either source, the original decision maker concluded, “it is more likely than not that Mr Abar has a greater capacity to support his children in [Ms A’s] care than that reflected in the minimum annual rate, based on an income of $10,806”.

5. The Child Support Agency found similarly during the objection process.  The objections officer, in affirming the original decision, stated, “The evidence presented by Mr Abar has not demonstrated to my satisfaction that the rate determined … is outside of the ability of Mr Abar to pay.”

6. In his application to the Tribunal Mr Abar said this decision was not based on his current income, however, he did not provide any further evidence to support this claim. 

7. In the absence of any detailed evidence from Mr Abar, the Tribunal finds the assumptions made by the Child Support Agency in relation to the income available to him for the purposes of child support to be reasonable.

8. The test of merit has alternatively been expressed as whether, were it to proceed, the application for review “would have good prospects of success” (Smith and Commissioner of Patents [2012] AATA 60 at [29]–[31]).

9. Based on the evidence available, the Tribunal finds Mr Abar’s application for review would not have good prospects of success on the ground of his income, property and financial resources.  The Tribunal therefore considers Mr Abar’s application has little merit.

Potential prejudice to [Ms A] and the wider public

1. [Ms A] should ordinarily be able to rely on the child support assessment once the period for objection has passed.  On the other hand the application made by Mr Abar to the Tribunal is 50 days out of time.  The Tribunal does not consider that [Ms A] would be significantly disadvantaged if an extension of time to lodge an objection was granted.

2. The Tribunal must also consider whether or not there would be prejudice to the general public if an extension of time was granted.  Time limits for the review of administrative decisions should be observed as strictly as possible in order to assist the proper administration of government agencies.  There is also a public expectation that there be a degree of certainty in relation to time limits, however, the law allows for extensions of time.  In this case the Tribunal does not believe there would be significant prejudice to the general public if an extension of time to lodge an objection was granted.

Fairness in granting an extension of time as between Mr Abar and other persons in similar positions

1. The Child Support Agency notifies parties that they can seek a review of decisions with the Tribunal and they have 28 days within which to submit a request for such a review.  Most people comply within the 28 day timeframe.  It is clear the statutory time limit is to be enforced unless there are acceptable reasons for the delay.  The Tribunal finds that it would not be fair to others to grant Mr Abar an extension of time to seek review of a decision in view of the statutory timeframe which applies and the lack of merit to his application.

CONCLUSION

1. It is the view of the Tribunal that Mr Abar has provided a satisfactory explanation for the delay in applying for review of the objection decision.  The Tribunal could find little merit to his application, however, which weighs heavily against the granting of the extension application.

2. Having carefully weighed the various factors which it needs to consider, the Tribunal finds it would not be proper to grant an extension of time to seek review of the objection decision made on 16 April 2018 in the circumstances of this case.  Accordingly, the extension application is refused.

Senior Member R Ellis