Bostwick and Child Support Registrar (Child support)

[2022] AATA 4096

Bostwick and Child Support Registrar (Child support) [2022] AATA 4096 (12 October 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/AC024290 and 2022/AC024310

APPLICANT:  Mr Bostwick

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member A Schiwy

DECISION DATE:  12 October 2022

DECISION:

The decisions under review are affirmed.

CATCHWORDS

CHILD SUPPORT – application for extension of time - no reasonable explanation for the delay - no merit - extension of time refused – decisions 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 Bostwick and [Ms A] are the parents of two children: [Child 1] and [Child 2].

2. [Ms A]’s 2018ꟷ19 adjusted taxable income was $124,618 and as of 29 April 2020 this income was being used in the assessments for child support payable by [Ms A] to Mr Bostwick.

3. [Ms A] contacted Services Australia ꟷ Child Support (“Child Support”) on 29 April 2020 to apply for an estimate of income to apply on the basis that she was not working and was on income support payments.  Her estimated income of $14,457 (annualised) was accepted for the period 29 April 2020 to 30 June 2020 and $17,514 from 1 July 2020 to 30 June 2021.

4. [Ms A]’s employment circumstances changed several times and she lodged five further estimates from 9 July 2020 to 30 June 2021.  The estimates were accepted.

5. Prior to lodging her income tax returns for 2019ꟷ20 and 2020ꟷ21 [Ms A] informed Child Support that her adjusted taxable incomes for those years would be $106,489 and $72,667 respectively.  Her actual adjusted taxable incomes for those years were later ascertained from the Australian Taxation Office and were $116,359 and $74,994.

6. On 16 November 2021 Child Support reconciled [Ms A]’s estimates with her actual adjusted taxable incomes.  This resulted in her having arrears of $957 for 2019ꟷ20 and $1,522 for 2020ꟷ21.  Notices of these decisions were sent to Mr Bostwick on 16 November 2021.

7. On 25 May 2022 Mr Bostwick objected to the estimate reconciliations and as his objection was more than 28 days from the date the assessments were made, he lodged an application for an extension of time to lodge the objections.

8. On 21 June 2022, Child Support refused the applications for an extension of time to lodge the objections.

9. On 20 July 2022 Mr Bostwick applied to the tribunal for review of the decisions to refuse his applications for an extension of time to lodge the two objections (AC024290:2019-20 reconciliation; AC0242310: 2020-21 reconciliation).

10. Mr Bostwick participated by conference telephone in the hearing convened by the tribunal on 12 October 2022.  The tribunal had before it a bundle of documents provided by Child Support which relate to both applications. A copy of these documents was provided to Mr Bostwick by Child Support prior to the hearing.  

CONSIDERATION

The legislative framework

1. The legislation relevant to the extension of time application is contained in the Child Support (Registration and Collection) Act 1988 (“the Act”). 

2. A person may object to a decision made by Child Support, and section 81 of the Act provides that an objection must be lodged within 28 days after notice of the decision is served on the person. However, section 82 allows for a person to apply for an extension of time in which to lodge an objection if the 28-day time period has expired.

3. The Act provides no guidelines in relation to the exercise of the discretion to extend time that is set out in section 83 of the Act.

4. Wilcox J in Hunter Valley Developments v Cohen (1984) 3 FCR 344 (Hunter Valley Developments) made it clear that the starting position in matters concerning applications for extensions of time is that proceedings commenced outside a statutory period will not be entertained, and that such an application should not be granted unless the Court is positively satisfied that it is proper to do so.  He set out the following as being relevant considerations in deciding whether to extend time:

   •whether the applicant rested on his or her rights or took action to make the decision maker aware that the decision was being contested;

   •any prejudice to the respondent that would be caused by granting the extension of time;

   •any wider prejudice to the general public in terms of disruption to established practice;

   •the merits of the substantial application; 

   •fairness of granting an extension of time as between the applicant and other persons in like position;

   •whether it is fair and equitable in the circumstances to extend time.

5. These principles have been affirmed in other cases (for example, Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42) and detailed in Australian government policy on applications for extensions of time to lodge objections which is contained in section 4.1.5 of the Child Support Guide.

6. The tribunal considered Mr Bostwick’s application having regard to these principles.

Reason for delay/resting on rights

1. On 11 November 2021 Mr Bostwick lodged a complaint to Child Support stating that [Ms A]’s estimates had not been reconciled to her taxable incomes.  The reconciliations were undertaken, and Mr Bostwick was notified of the reconciliations on 16 November 2021 together with the new assessments (refer to pages 246ꟷ298). 

2. On 19 November 2021 Mr Bostwick spoke to the Child Support complaints officer about the reconciliations as he was concerned that the actual taxable income figures had not been used.  The complaints officer attempted to explain the estimate reconciliation process.  Mr Bostwick stated that he thought the adjusted taxable income (for 2019ꟷ20) should be divided by 6 and then applied to the two months of the estimate.  The officer arranged to send Mr Bostwick a transaction statement.  Mr Bostwick then expressed some concern over a recent care decision.  Mr Bostwick was advised he could escalate the matter if he was not satisfied with the complaints officer’s response.  The tribunal did not consider that this exchange between Mr Bostwick and the complaints officer was an “objection” to the reconciliation assessments; whilst he thought the calculation method was unfair, he did not object to the assessment.  He was also concerned about the care decision and he had taken the matter to this tribunal (differently constituted).

3. On 5 April 2022 the tribunal (differently constituted) decided about the care of [Child 1]; deciding that there had been no change in care since 1 January 2020.  On 26 April 2022 Child Support acted on the decision and sent Mr Bostwick new assessments based on the tribunal’s care decision (refer to pages 307ꟷ358).

4. On 5 May 2022 and 12 May 2022 Mr Bostwick contacted Child Support about the overpayments following the reassessments and again raised concerns about the reconciled incomes used.

5. On 25 May 2022 Mr Bostwick lodged an objection stating that the reconciled estimates used did not match [Ms A]’s taxable incomes.  He refers to the assessments made on 25 April 2022.  On 27 May 2022 Child Support made a note that it was unclear as to what Mr Bostwick was objecting to as it did not make a decision on 25 April 2022 (it issued the assessments based on the tribunal’s care decision).  On 17 June 2022 Child Support contacted Mr Bostwick and discussed his objection and he said the reconciled estimates did not use the correct income.  Several attempts were made to contact Mr Bostwick to seek clarification.

6. At the hearing Mr Bostwick said that one of his objections was to the assessments that were issued on 26 April 2022 and therefore his objection was on time.

7. Mr Bostwick is objecting to the estimated incomes used in the assessments.  These estimates were reconciled estimates and the decision to make those reconciled assessments was made on 16 November 2021.  Mr Bostwick did not object to the assessments at the time.  He queried them and did not think the calculation method was fair; but he did not lodge an objection to the assessments. 

8. The tribunal did not think that Mr Bostwick had a reasonable explanation for the delay in lodging his objections.

Prejudice to [Ms A]

25.As the objections relate to how the estimate reconciliations were undertaken, no evidentiary difficulties for [Ms A] appear to have been caused by the expiry of time.  The tribunal does not consider that [Ms A] would be placed at a disadvantage in terms of her ability to respond to the objection were the extensions allowed.  

Prejudice to the public

26.Parliament has seen fit to set a 28-day time limit for the lodgement of objections so that parents (and Child Support) can act with certainty as to the outcome when the objection period has elapsed.  Aside from this general principle, there is no other apparent prejudice to the public were Mr Bostwick granted an extension of time to object to the decision.  

Merits of the objection

27. The Child Support (Assessment) Act 1989 (“the Assessment Act”) sets out the statutory formula for the calculation of child support. Amongst other things, the statutory formula takes into account the income of each parent.

28. Section 60 of the Assessment Act allows a person to lodge an income estimate. The period affected by an estimate is also set out in section 60. The period starts on the day the person makes an estimate or the day the child support period starts; whichever is the later.

29. The Registrar must reconcile the estimate against the person’s actual income at the end of the estimate and the child support period, according to a method that is set out in section 64 of the Assessment Act.

30. The tribunal has reviewed the estimate reconciliations undertaken by Child Support and there does not appear to be any error made; the correct amount of adjusted taxable income has been taken into account for each reconciliation.  Rather, Mr Bostwick does not appear to understand how the reconciliation is undertaken.  There does not appear to be any merit to his objection.

Fairness to other persons in a like position

31.In this instance, the tribunal has found that there is no merit in the relevant matters raised in Mr Bostwick’s objections.  A person in a like position to Mr Bostwick ought not be granted an extension of time.

What is proper, fair and equitable

32.The tribunal has found that there is essentially no evidence of likely prejudice if Mr Bostwick’s time to object were extended.  However, in Hunter Valley Developments Wilcox J found that “the mere absence of prejudice is not enough to justify the grant of an extension”.

33. On the issue of the merits of an extension of time application, Deputy President Groom of the Administrative Appeals Tribunal stated in Confidential and Executive Director, Social Security Appeals Tribunal [2009]:

The Tribunal views this as a particularly significant consideration.  If there is no merit in the substantive application then it will be a waste of everyone’s time to permit the matter to proceed further.  At the same time if it has merit and no-one is significantly prejudiced by allowing the matter to proceed it may be an injustice not to permit the applicant to have the opportunity to put his case (AATA 172 at 21 and 22).

34.The tribunal finds that in the absence of any identifiable merit in the substantive application, the matter should not proceed further.  This means that the tribunal agrees with the Child Support decision not to grant Mr Bostwick an extension of time for the lodgement of his objections.

DECISION

The decisions under review are affirmed.