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

1. 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.

2. 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”. 

3. 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.

4. 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.

5. 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

1. 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

1. 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 v Taylor [1996] HCA 25.

2. The first two judgments cited set out a number of factors which are potentially relevant in determining such applications, such as the reason for the delay and the merits of the objection.  In the third judgment McHugh J, sets out a clear explanation of the public policy considerations attaching to statutory time limits.

Reasons for the delay in objecting

1. Mr Bosting has lodged his objection approximately 440 days after the 28-day time limit within which to object had passed.

2. On 23 November 2016 the Department wrote a letter to Mr Bosting notifying him of the decision that had been made.  The letter was addressed to Mr Bosting’s residential address at [Address 1].  Mr Bosting claims he had moved from [Address 1] by that time, and his evidence was that he had provided the Department with an updated address before 23 November 2016.

3. I noted that the Department continued to send Mr Bosting correspondence at [Address 1] until at least 10 September 2017.  There is evidence that Mr Bosting responded to correspondence sent to [Address 1] after 23 November 2016.  For example, on 18 July 2017 Mr Bosting contacted the Department about a number of issues, including the percentage of care.  This followed a letter being sent to Mr Bosting at [Address 1] on 6 July 2017 notifying him that new percentages of care would be applied to the child support assessment.

4. I was not persuaded that Mr Bosting had moved from [Address 1] by 23 November 2016.  Mr Bosting claims not to have received the letters sent to him on that date.  Even if he did not, the child support legislation contains provisions which deem such notices to have been served on Mr Bosting.[1] 

   [1] See regulation 14 of the Child Support (Registration and Collection) Regulations 1988.

5. Regardless, file notes indicate that Mr Bosting discussed the decision in respect of which he now wants to object with the decision maker on 23 November 2016.  The file note indicates that Mr Bosting was advised of his objection rights.  Other file notes indicate that Mr Bosting was given advice about objection rights on other occasions.

6. Mr Bosting’s evidence was that he was not aware that he needed to make his objection in writing.  He stated that if he was informed of this during any conversations he had with Departmental staff, he could now not recall being given that information.  Mr Bosting queried why objections need to be in writing, when this is not required for percentage of care decisions.

7. I was not persuaded that Mr Bosting has provided a satisfactory explanation of the delay in making his objection.  An acceptable explanation for the delay is not an essential factor to be established in order for the discretion to be exercised in Mr Bosting’s favour.  However, the absence of an acceptable explanation for the delay weighs heavily against granting the extension of time.

Merit of the substantive objection

1. To grant an application to extend time if there is no merit in the substantive objection would not be an appropriate exercise of the discretion to extend time.

2. Mr Bosting submitted that his income was not $57,370 and asserted that this decision was based upon incorrect conclusions drawn by the decision-maker.  He stated that no consideration had been given to the fact that past income, on which the decision-maker’s calculations were based, was earned when he worked full-time and at the time the decision was made he was working part-time due to his caring responsibilities.

3. Mr Bosting stated that to support his objection he would be able to provide bank statements; however, he would be reluctant to do so if it meant they would be provided to [Miss A].

4. The making of a departure determination requires the exercise of a discretion and different decision-makers may view a particular case differently.  Given there is discretion involved in making departure determinations, it is difficult to discount that Mr Bosting’s substantive objection may have some merit.

Prejudice to the other parent

1. [Miss A] has not been invited to be added as a party to this review and has not had the opportunity to set out what prejudice she may face if the extension of time is granted. 

2. I noted that the delay in lodging the objection is considerable.  In meeting the objection I suspected that [Miss A] may face difficulty in recalling events and finding evidence relevant to the issues that would appear to be in dispute.  I did not give potential prejudice to [Miss A] in this regard any particular weight.

3. I did not consider that prejudice to the other parent is an influential factor in my consideration of whether to exercise the discretion to extend time in this case.

Prejudice to the general public and considerations of fairness as between Mr Bosting and other persons otherwise in a like position

1. I identified no factors in this matter that make potential prejudice to the general community a material consideration.  

2. I did, however, place weight on considerations of fairness between Mr Bosting and other persons in a like position by giving due regard to the existence of a statutory time limit for lodging objections. 

Conclusion

1. As a general rule, statutory time limits should be applied unless the decision-maker, in this case that is me, is positively satisfied that it is proper to exercise the discretion to extend time.

2. In this matter, I am not persuaded that there is sufficient justification to exercise the discretion to extend time.  While I do not discount the possibility that Mr Bosting’s substantive objection might have some merit, I consider that the absence of any acceptable reason for the delay in making the objection outweighs this.  I consider that Mr Bosting was notified of the decision and his opportunity to object, and I can identify no factors which persuade me that the ordinary time limit should not apply to him.

3. Having considered the matter, I declined to exercise the discretion to extend time to allow Mr Bosting to object to the decision made on 23 November 2016.  Therefore, for these reasons, I decided to affirm the decision under review.

DECISION

The decision under review is affirmed.