Boothe and Child Support Registrar (Child support)
[2024] AATA 487
•15 February 2024
Boothe and Child Support Registrar (Child support) [2024] AATA 487 (15 February 2024)
DIVISION:Social Services & Child Support Division
REVIEW NUMBER: 2023/SC027206
APPLICANT: Mr Boothe
OTHER PARTIES: Child Support Registrar
TRIBUNAL:Senior Member R Ellis
DECISION DATE: 15 February 2024
DECISION:
The Tribunal sets aside the decision under review and, in substitution, decides that the extension application should be granted.
CATCHWORDS
CHILD SUPPORT – refusal to grant an extension of time to object – merit in objection – decision to grant - decision under review set aside and substituted
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
Mr Boothe and Mrs Boothe are the parents of [the child] (born April 2015). There has been a child support assessment in place since 15 June 2021.
On 12 August 2023 Services Australia – Child Support (Child Support) made the decision to apply a 2022–23 Australian Taxation Office (ATO)-assessed adjusted taxable income for Mrs Boothe of $35,278 to the assessment from 1 September 2023 (the original decision).
On 13 September 2023 Mr Boothe objected to the original decision and as his objection was not made within the prescribed period he applied for an extension of time on 12 December 2023.
On 14 December 2023 Child Support refused the request for an extension of time and on 14 December 2023 Mr Boothe sought a review of the refusal decision by the Administrative Appeals Tribunal (the Tribunal).
The Tribunal conducted a hearing into the application on 15 February 2024. Mr Boothe gave evidence on affirmation by Microsoft Teams audio. Child Support provided the Tribunal and the parties with papers relevant to the matter (135 pages).
ISSUES
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).
The issue which arises in this case is whether or not to grant the request made by Mr Boothe for an extension of time to lodge an objection to the original decision.
CONSIDERATION
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.
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).
The Tribunal finds, based on the evidence provided, that Mr Boothe was advised about the outcome of the original decision by electronic means in a letter from Child Support dated 12 August 2023. Given Mr Boothe lodged his objection more than 28 days after he was served with notice the Tribunal is satisfied an extension of time is necessary.
The Tribunal is required to consider whether or not it is reasonable or proper for an extension of time to be granted to Mr Boothe to lodge his objection to the decision made on 12 August 2023. 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.
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
The Tribunal finds that Mr Boothe’s application for an extension of time on 12 December 2023 in relation to the decision of 12 August 2023, of which he was notified by electronic means, is approximately 113 days out of time.
In seeking an extension of time Mr Boothe told the Tribunal that after reading the correspondence he tried several times to contact Child Support by telephone to express his concerns about the decision but found it difficult to get through. Mr Boothe explained that he was placed on hold for very lengthy periods of time and was unable to remain on the calls which was extremely frustrating. Mr Boothe said after finally speaking to Child Support on 13 September 2023 he objected. Mr Boothe added that the correspondence from Child Support was also sent to him on a Saturday and as it was unlikely he accessed it immediately this may also have contributed to the delay in submitting his objection.
Mr Boothe pointed out that his objection was late by only a few days and yet it took several months for Child Support to process his objection and then inform him he needed an extension of time. Mr Boothe said this seemed extremely unfair.
The notification of the decision to apply a 2022–23 income for Mrs Boothe in the assessment outlines what to do if Mr Boothe disagreed with that decision. This includes submitting an objection “in writing within 28 days from the date you receive this letter”. The words “within 28 days” are in bold which, in the view of the Tribunal, gives a clear indication of the importance of this timeframe.
The Tribunal is satisfied that Mr Boothe was informed of his right to object to the decision made on 12 August 2023. While acknowledging the difficulty Mr Boothe may have had in contacting Child Support in relation to this particular matter the Tribunal does not consider this as a valid reason for failing to submit his objection in a timely fashion.
Mr Boothe submitted his objection on 13 September 2023 which was four days late. To have been within the prescribed period his objection should have been made no later than 9 September 2023. The Tribunal notes in evidence that subsequent to this Mr Boothe made several calls to Child Support to follow up his objection. On 27 November 2023, during one of these calls, Mr Boothe was informed his objection had yet to be allocated. When Mr Boothe was told on 12 December 2023 he needed to apply for an extension of time he did so.
While not satisfied that Mr Boothe has provided a reasonable explanation for the delay in applying for review of the objection decision the Tribunal accepts it is only a short delay.
Merits of the objection
Mr Boothe is objecting to a decision to apply a 2022–23 ATO-assessed adjusted taxable income of $35,278 to the child support assessment from 1 September 2023.
Mr Boothe told the Tribunal that Mrs Boothe had an investment unit and he was not certain the rental income had been properly accounted for when Child Support determined her adjusted taxable income. Mr Boothe added that Mrs Boothe also received fringe benefits through her employment as [an Occupation]. Mr Boothe said these fringe benefits, including a motor vehicle and telephone allowance, were reflected in her payslips but did not appear to be included in her adjusted taxable income. Mr Boothe said he had sent these payslips to Child Support and the adjusted taxable income for Mrs Boothe was very likely to be incorrect.
Mr Boothe said, in his view, this meant there was obvious merit to his objection.
Child Support makes child support assessments for a child support period using a formula outlined in Part 5 of the Assessment Act. The variables in the formula include the adjusted taxable incomes of both parents. Section 43 of the Assessment Act provides a description of how a parent’s adjusted taxable income is calculated. The obligation to assess a new rate of child support once a new tax assessment is made is set out under section 34A of the Assessment Act.
The provisions relevant to calculating the adjusted taxable income amount of a parent are set out in subsection 43(1) of the Assessment Act:
Working out parent's adjusted taxable income
43(1) Subject to this Part, a parent's adjusted taxable income for a child for a day in a child support period is the total of the following components:
(a) the parent's taxable income for the last relevant year of income in relation to the child support period;
(b) the parent's reportable fringe benefits total for that year of income;
(c) the parent's target foreign income for that year of income;
(d) the parent's total net investment loss (within the meaning of the Income Tax Assessment Act 1997) for that year of income;
(e) the total of the tax free pensions or benefits received by that parent in that year of income;
(f) the parent's reportable superannuation contributions (within the meaning of the Income Tax Assessment Act 1997) for that year of income.
Mr Boothe argues that Mrs Boothe has an investment property and is in receipt of fringe benefits which have not been accounted for in her 2022–23 adjusted taxable income. Mr Boothe has stated he provided Child Support with payslips showing the fringe benefits Mrs Boothe is receiving and if this were the case there could be an error in the calculations Child Support has made in determining the adjusted taxable income of Mrs Boothe in 2022–23.[1]
[1] In reaching this conclusion the Tribunal was conscious of the decision made by the Federal Circuit and Family Court of Australia in EOI20 v Child Support Registrar [2024] FedCFamC2G 14.
The Tribunal is satisfied there may be some merit in reviewing the decision in relation to the fixing of Mrs Boothe’s 2022–23 adjusted taxable income.
Potential prejudice to Mrs Boothe and the wider public
The Tribunal must also consider the potential prejudice to Mrs Boothe and the wider public. Mrs Boothe should ordinarily be able to rely on the child support assessment once the period for objection has passed. The application for an extension of time made by Mr Boothe is approximately 113 days out of time but the Tribunal is satisfied that Mrs Boothe would be able to provide evidence in relation to her adjusted taxable income which is relevant to the objection. The Tribunal does not consider that Mrs Boothe would be significantly disadvantaged should the extension of time to lodge an objection be 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 but the law also allows for extensions of time. In this case, the Tribunal believes there would be limited 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 Boothe and other persons in similar positions
Child Support notifies parties that they can object to decisions and have 28 days within which to submit a request for such a review. Most people comply within the 28‑day timeframe. The Tribunal is not satisfied with the explanation Mr Boothe has given for the short delay in submitting his objection, however, the Tribunal has found there may be some merit to the objection. It is reasonable to accept that any other person’s request for an extension of time in such circumstances would be granted. The Tribunal finds that it would not be unfair to others to grant Mr Boothe an extension of time.
CONCLUSION
The Tribunal found some merit to the application made by Mr Boothe which weighs in favour of the granting of an extension of time. The Tribunal also found there is unlikely to be prejudice to Mrs Boothe or the general public should an extension of time be granted nor would it be unfair to do so. Although not satisfied with his explanation for the delay the actual objection made by Mr Boothe was only a few days late.
Having carefully considered the various factors which must be taken into account, the Tribunal finds it would be appropriate in this case for the extension of time in which to lodge an objection to be granted.
DECISION
The Tribunal sets aside the decision under review and, in substitution, decides that the extension application should be granted.
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