Allison and Child Support Registrar (Child support)

[2020] AATA 4394

Allison and Child Support Registrar (Child support) [2020] AATA 4394 (27 July 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/MC019092

APPLICANT:  Mr Allison

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member S Letch

DECISION DATE:  27 July 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – refusal to grant an extension of time to object – reconciliation of an estimated income – satisfactory explanation for the short delay – no prospect of success – the extension of time should be 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 Allison has been assessed by the Child Support Agency (CSA) as liable to pay child support. On 28 February 2020, the CSA decided to reconcile an estimate provided by Mr Allison for his 2018/19 adjusted taxable income which turned out to be “too low” as a result of a later superannuation withdrawal which Mr Allison had not understood would form part of his taxable income. The result of the decision was to increase Mr Allison’s child support liability for the period 1 March 2019 to 30 June 2019.

2. Mr Allison objected to the original decision on 14 April 2020, more than 28 days after he was notified of the decision.

3. On 9 May 2020, the CSA decided to refuse to extend the time in which Mr Allison could object. Mr Allison applied for further review by the Tribunal on 21 May 2020; Mr Allison participated in the Tribunal’s hearing by conference telephone.

CONSIDERATION

Background and legislative framework

1. A parent may object to a decision made by the CSA pursuant to section 80 of the Child Support (Registration and Collection) Act 1988 (the Registration Act). Section 81 of the Registration Act provides that an objection must be lodged within 28 days after notice of the decision is served on the person.

2. Section 82 of the Registration Act relevantly provides that a person may apply for an extension of time in which to lodge an objection and that the application must state fully and in detail the grounds for the application, including the circumstances concerning, and the reasons for, the failure by the person to lodge the objection within the 28-day time period prescribed. The Registration Act does not set out criteria for consideration when considering an application for an extension of time within which to object. However, the Child Support Guide (the Guide) contains useful guidelines at chapter 4.1.5. In summary, the Guide suggests that it is ultimately a question as to whether the interests of justice favour the granting or refusal of the application in the particular circumstances. Factors to be considered are the reason for the delay, the merits of the objection, whether the person has rested on their rights and any potential prejudice to the other party or the public.

3. The established cases indicate that the starting position is the prima facie rule that proceedings commenced outside a statutory period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). However, the primary concern “is to do that which will enable justice to be done between the parties” (see Martinsen v Secretary, Department of Family & Community Services [2004] FCA 297 per Spender J). Spender J quoted McHugh J in Gallo v Dawson (1990) 64 ALJR 459 as follows:

   In order to determine whether the rules [imposing time limits] will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time ...

   When the application is for an extension of time …it is always necessary to consider the prospects of the applicant succeeding in the appeal …

4. In line with Wilcox J’s survey of cases in Hunter Valley Developments P/L v Cohen (1984) 3 FCR 344, the Tribunal proposes to consider the matters identified in Gallo v Dawson under the following heads:

   ·      the explanation for the delay;

   ·      the merits of the substantial application;

   ·      any prejudice to the other party including any prejudice in defending the proceedings occasioned by the delay; and

   ·      any public interest considerations that might flow from a successful application including “the unsettling of other people” (Ralkon v Aboriginal Development Commission(1982) 43 ALR 535 at [550]) or of “established practices” (Douglas v Allen (1984) 1 FCR 287).

Explanation for the delay

1. The delay here is short. The CSA materials reveal Mr Allison did not “sit on his hands” and agitated the matter with CSA before making his formal objection.

2. This factor does not weigh heavily against granting an extension.

Merits of the objection

1. There is no point granting an extension if an objection is unlikely to succeed.

2. The estimate provisions in the child support law in Division 7A of the Child Support (Assessment) Act 1989 are tightly drafted. In simple terms, actual income is compared with estimated income; if the actual income is higher, the higher sum is substituted into the formula assessment. In a sense, there is “strict liability”; there is no provision which gives a decision-maker the discretion to exclude the later superannuation sum withdrawn by Mr Allison.

3. Accordingly, there is no prospect that the CSA (or the Tribunal, which must apply the same legislative regime) could make a different decision to the CSA; the objection has no prospects for success.

Potential prejudice

1. The delay here is short and an extension would not be likely to visit material prejudice on the other party.

Public interest considerations

1. The statute provides for a 28-day period for the lodgement of objections so that parents (and the CSA) can act with certainty as to the outcome when the objection period has elapsed. The public has an interest in reviews of decisions made by the CSA being performed in a timely fashion and in a manner that ensures all applicants are treated fairly and equally. Accordingly, an extension of the time for objection, even a brief one, is not to be automatically granted.

Conclusion

1. The Tribunal again observes there is no point granting an extension if an objection must necessarily fail.

2. Here, there is no discretion available which would permit a different decision to be made. Accordingly, the interests of justice require that the extension application be refused.

3. The Tribunal understands Mr Allison’s contentions, and that he had made his withdrawal on hardship grounds. He may choose to make an application with the CSA for a departure from the formula arrangements (which includes the estimate regime) – or a “change of assessment” application as the CSA commonly describes it – if he considers the assessment unfair, and which, in limited circumstances, can be given retrospective effect. The Tribunal offers no view as to whether any such application would be likely to succeed.

4. As the Tribunal has reached the same conclusion as the CSA, the decision under review will be affirmed.

DECISION

The decision under review is affirmed.