Armager and Child Support Registrar (Child support)

[2024] AATA 2305

Armager and Child Support Registrar (Child support) [2024] AATA 2305 (6 May 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/PC027093

APPLICANT:  Mr Armager

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  06 May 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – application for extension of time – explanation for the delay – grounds for departure – costs of supervised contact – money, goods or property received by the payee – extension of time refused

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 Armager and Mrs Armager are the parents of [Child 1] (born June 2011), [Child 2] (born November 2014) and [Child 3] (born June 2016).  There has been a child support assessment in place since 22 January 2019 and Mr Armager is the liable parent.

2. On 7 December 2021 Mr Armager applied to Services Australia – Child Support (Child Support) for a change to the assessment on the basis of the high costs of spending time with or communicating with the children (the ground commonly referred to as Reason 1), money, goods or property received by the children, the payee or a third person (Reason 5), his necessary commitments of self-support (Reason 7) and a parent’s income, property and financial resources (Reason 8A).

3. On 4 May 2022 Child Support made the decision to refuse to change the assessment in accordance with section 98F of the Child Support (Assessment) Act 1989 (the Assessment Act) as a ground for departure was not established (the original decision).

4. On 13 June 2023 Mr Armager objected to this decision and as his objection was not made within the prescribed period he applied for an extension of time on the same date.

1. On 23 October 2023 Child Support made the decision to refuse the request for an extension of time and on 16 November 2023 Mr Armager sought a review of the refusal decision by the Administrative Appeals Tribunal (the Tribunal).

2. The Tribunal conducted a hearing into the application on 20 February 2024.  Mr Armager  appeared before the Tribunal and gave evidence on affirmation.  Child Support provided the Tribunal and Mr Armager with papers relevant to the matter (238 pages).  At hearing Mr Armager provided additional evidence in support of his case (A1–A152).

ISSUE

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

2. The issue which arises in this case is whether or not to grant the request made by Mr Armager for an extension of time to lodge an objection to the original decision made by Child Support on 4 May 2022.

CONSIDERATION

1. Part VII of the Act is about the procedures related to objections made for certain decisions. Section 81 is about time limits on lodging objections and provides that a person has 28 days in which to lodge an objection after a notice of the decision is served on them. Section 82 provides for a person to apply for an extension of time to lodge an objection after the 28-day period has elapsed. Section 83 requires Child Support to either grant or refuse an extension of time application and serve notice in writing of the decision.

2. In the event Child Support refuses the extension of time application, the person applying may apply to the Tribunal for a review (item 1 of the table in subsection 89(1) of the Act).

3. The Tribunal finds, based on the evidence provided, that Mr Armager was advised about the outcome of the original decision by post in a letter from Child Support dated 5 May 2022.  Under provisions of the Acts Interpretation Act 1901 and the Evidence Act 1995, he was therefore taken to be served with written notice of this decision by 23 May 2022.  Given Mr Armager lodged his objection more than 28 days after he was served with notice, the Tribunal is satisfied an extension of time is necessary.

4. The Tribunal is required to consider whether or not it is reasonable or proper for an extension of time to be granted to Mr Armager to lodge his objection to the decision made on 4 May 2022. From other decisions, which provide guidance to the Tribunal on 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.

5. A review of relevant court decisions establishes that when considering matters relating to an extension of time, the Tribunal should take into account 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 Armager’s application for an extension of time on 13 June 2023 in relation to the decision of 4 May 2022, of which he was notified by post on 5 May 2022, is approximately 358 days out of time.

2. In seeking an extension of time Mr Armager told the Tribunal he had verbally objected to the decision but found it difficult to submit a written objection because he was moving from home to home around that time.  Mr Armager added that he was not informed by Child Support how to obtain the correct forms to lodge an objection despite his consistent contact.

3. The Tribunal notes in evidence that a child support officer contacted Mr Armager on 6 May 2022 to discuss the outcome of the change of assessment.  During this conversation Mr Armager was informed he could object to the original decision, however, the record of the discussion does not indicate he requested further details about the objections process.  There is no record of Mr Armager calling Child Support to further discuss the original decision or lodge an objection until 26 May 2023.

4. Mr Armager may have lived in various homes from mid-2022 but this would not have prevented him from telephoning Child Support to seek further details about the objections process.  There is nothing to support the contention that Mr Armager objected verbally during the conversation with Child Support on 6 May 2022 and no evidence to suggest he endeavoured to contact Child Support again until 26 May 2023.

5. The notification of the original decision provided by Child Support dated 5 May 2022 outlines what to do if Mr Armager disagreed with this decision.  This includes asking Child Support to “review the decision (we call this an objection) within 28 days from the date you receive this letter”.  The notification also provides contact details for the change of assessment team at Child Support.

6. The Tribunal is not satisfied that Mr Armager has provided a reasonable explanation for the lengthy delay in applying for a review of the original decision.  The Tribunal finds Mr Armager rested on his rights.

Merits of the objection

1. Mr Armager is seeking review of a decision which refused to change the administrative assessment of child support because a ground for change was not established.  Mr Armager told the Tribunal that Child Support did not properly consider all his evidence.

2. Before making a determination to change an administrative assessment Child Support must first find a ground for departure. These are listed in the Assessment Act and in this case Mr Armager applied on the basis of four different grounds (Reasons 1, 5, 7, and 8A).

3. Mr Armager said he was forced to meet the costs of supervised contact with the children and had provided Child Support with receipts from [Agency 1] outlining these costs.  Mr Armager acknowledged the supervised contact with [Child 1], [Child 2] and [Child 3] was court-ordered but said the costs were still considerable and should be taken into account.

4. The Tribunal notes in evidence a copy of court orders dated [in] July 2021 confirming the costs of supervised contact with the children are to be met by Mr Armager.  The original decision maker considered these costs but concluded that as they were court ordered “it would not be appropriate to seek a reduction in his child support payments” under Reason 1.

5. Mr Armager told the Tribunal he had met a number of costs for Mrs Armager following their separation including payment of a vehicle lease while she had use of the car as well as moving costs.  Mr Armager pointed out that Mrs Armager had told Child Support she had not been using the vehicle but he had provided evidence that she was driving the car.

6. The Tribunal notes that during consideration of the issue of car payments for an earlier change of assessment decision made on 19 April 2021 Mrs Armager agreed she did drive a [Brand 1] motor vehicle from time to time and Mr Armager was making the lease payments on the vehicle.  Mrs Armager also said she was paying the registration, maintenance and insurance until the car was collected as she had subsequently purchased her own motor vehicle.  No evidence was provided by Mr Armager of the moving costs he met on behalf of Mrs Armager.

7. In order to establish Reason 5, Mr Armager must show, in the special circumstances of the case, the child support assessment is unfair because he is giving money, goods or property to the children of the assessment or to Mrs Armager as the receiving parent.  The original decision maker found that while satisfied Mr Armager was making car payments for a vehicle which provided a benefit to Mrs Armager and the children, this did not render the assessment unfair.  The original decision maker also found there was insufficient evidence in relation to the moving costs to determine whether or not these costs made the assessment unfair.

8. Mr Armager said he had been meeting various expenses for himself, including accommodation, food and fuel, which made it difficult to meet his child support obligations.  Mr Armager said property settlement had yet to be concluded.

9. In order to establish Reason 7, Mr Armager must show, in the special circumstances of the case, that his capacity to provide financial support for the children is significantly reduced because of commitments necessary to enable him to support himself.  The original decision maker reviewed Mr Armager’s necessary expenses against his income and was not satisfied these commitments significantly affected his ability to maintain the children.

10. Mr Armager told the Tribunal he had only recently finalised his 2021–22 tax return and the taxable income reflected for him in the assessment had been incorrect.  Mr Armager also raised an issue with the income used for Mrs Armager and referred to a jointly owned rental property in [Town 1].  Mr Armager said the rental income from this property was split 50-50 between the parents and although he was meeting all the costs he was only able to claim for half in his tax return.  Mr Armager said this was unfair.

11. Mr Armager provided the Tribunal with a copy of his Australian Taxation Office notice of assessment for the year ended 30 June 2022.  It shows a taxable income of $138,594.  The Tribunal notes the original decision maker determined that Mr Armager was employed up until mid-October 2021 after which he had short periods of unemployment.  Mr Armager was being assessed from 29 October 2021 on an estimated income of $120,327.  The original decision maker was satisfied that no adjustments should be made to his income as Mr Armager was able to update his estimate at any time prior to 30 June 2022.  With respect to the income from the rental property in [Town 1] the original decision maker concluded this had been appropriately taken into account in Mrs Armager’s tax return and there was no unfairness in the assessment on account of her income.

12. 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]).

13. In examining the information in the documents provided by Child Support and Mr Armager the Tribunal finds the approach taken by the original decision maker to be reasonable.  Based on the evidence provided, the Tribunal finds the objection made by Mr Armager would not have good prospects of success.  The Tribunal finds his application has little merit.

Potential prejudice to Mrs Armager and the wider public

1. The Tribunal must also consider the potential prejudice to Mrs Armager and the wider public.  Mrs Armager should ordinarily be able to rely on the child support assessment once the period for objection has passed.  The application made by Mr Armager is nearly a year out of time and it would be reasonable for Mrs Armager to consider the matter was finalised.  The Tribunal finds Mrs Armager would be disadvantaged if an extension of time to lodge an objection was granted.

2. Time limits for the review of administrative decisions should be observed as strictly as possible 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 but the law also allows for extensions of time.  The Tribunal believes there would be 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 Armager and other persons in similar positions

1. Child Support notifies parties that they can object to decisions and most people comply within the relevant timeframe.  It is clear the statutory time limit is to be enforced unless there are acceptable reasons for the delay. The Tribunal is not satisfied with the explanation Mr Armager has given for the delay in submitting his objection and has found there is little merit to the objection.  The Tribunal is not satisfied his circumstances are sufficiently different to that of other applicants in a similar position such that an extension of time is warranted. The Tribunal finds that it would be unfair to others to grant Mr Armager an extension of time in view of the statutory timeframe which applies and the unsatisfactory explanation for the delay in objecting to the original decision.

CONCLUSION

1. Mr Armager has not provided a reasonable explanation for the lengthy delay in applying for review of the original decision and the Tribunal could find little merit to his application.  This weighs heavily against the granting of an extension of time. There would also be some prejudice to Mrs Armager and the general public should an extension of time be granted.  The Tribunal is also of the view it would be unfair to allow Mr Armager an extension of time given his circumstances are not sufficiently different to that of other applicants in a similar position.

2. Having considered the various factors which it must take into account, the Tribunal finds it would not be proper for the extension of time in which to lodge an objection to be granted.  The application is, therefore, refused.

DECISION

The decision under review is affirmed.