Bosting and Child Support Registrar (Child support) - [2018] AATA 3065

Bosting and Child Support Registrar (Child support) [2018] AATA 3065 (11 July 2018)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2018/MC014106
APPLICANT:  Mr Bosting
OTHER PARTIES:  Child Support Registrar
TRIBUNAL:Member M Baulch
DECISION DATE:  11 July 2018
DECISION:

The decision under review is affirmed.

CATCHWORDS

Child support – Refusal of extension of time to lodge an objection – Change of address – No satisfactory explanation of delay – Decision under review affirmed

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.

REASONS FOR DECISION

BACKGROUND

On 23 November 2016 the Department of Human Services - Child Support (the Department) decided to make a determination to depart from the administrative assessment of child support and set Mr Bosting’s adjusted taxable income used in the child support assessment at $57,370 for the period 22 September 2016 to 30 September 2018.
Mr Bosting had a right to object to the Department’s decision. Section 81 of the Child Support (Registration and Collection) Act 1988 (the Act) provides that an objection “must be lodged by a person within 28 days after a notice of the decision is served on the person”.
Mr Bosting made a written objection on 20 March 2018. His objection was out of time. He also lodged an application for an extension of time within which to lodge his objection. On 18 April 2018 a departmental objections officer decided to refuse Mr Bosting’s application to extend time (the decision under review) and it is from that decision that Mr Bosting applied to this tribunal, on 17 May 2018, seeking an independent review.
A hearing into the application for review was held by the tribunal on 11 July 2018. Mr Bosting discussed the application for review with the tribunal by telephone and gave evidence under affirmation during the hearing. A representative of the Child Support Registrar did not participate in the hearing.
The tribunal had before it relevant document prepared by the Department pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (120 pages), a copy of which Mr Bosting confirmed he had received prior to the tribunal hearing.

ISSUES

The issue for me to determine in this matter is whether or not Mr Bosting should be extended time within which to make an objection to a decision of 23 November 2016 to make a departure determination that set his adjusted taxable income at $57,370 for the period 22 September 2016 to 30 September 2018.

CONSIDERATION

The Act offers no direction or guidance on how the decision on an extension of time application should be made. I had regard to the general case law, including Ingram-Nader v Brinks Australia Pty Ltd [2006] FCA 624, Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 and Brisbane Regional Health Authority…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] AATA 3065
Decision Date: 11 July 2018

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Bosting, against a decision of the Child Support Registrar. The dispute centred on the Registrar's refusal to grant Bosting an extension of time to lodge an objection to a child support assessment. The appeal was heard by Magistrate Baulch in the [Court Name].

The primary legal issue before the Court was whether the Registrar had erred in refusing the extension of time. This required the Court to consider the adequacy of the explanation provided by Bosting for the delay in lodging the objection and whether, in all the circumstances, it was just and equitable to grant the extension.

Magistrate Baulch reasoned that the applicant had failed to provide a satisfactory explanation for the significant delay in lodging the objection. The change of address, while noted, was not considered a sufficient reason to excuse the prolonged period of inaction. The Court applied the principles governing extensions of time in administrative review processes, emphasising the need for a reasonable explanation for the delay and a demonstration that granting the extension would be in accordance with the interests of justice. As no such explanation was forthcoming, the Registrar's decision to refuse the extension was affirmed.

Orders