Brien and Registrar, Child Support
[2000] AATA 1145
•22 December 2000
DECISION AND REASONS FOR DECISION [2000] AATA 1145
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/1520
General Administrative Division )
Re Lindsay Brien
Applicant
And Registrar, Child Support
Respondent
DECISION
Tribunal Ms SM Bullock, Senior Member
Date22 December 2000
PlaceSydney
Decision An extension of time to lodge an application for review to the Administrative Appeals Tribunal is granted to Mr Brien pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975.
..........…....[sgnd].....................
Ms SM Bullock
Senior Member
CATCHWORDS
Child support - application for extension of time
LEGISLATION
The Administrative Appeals Tribunal Act 1975 ss29 (7)
The Child Support (Assessment) Act 1989 part 6A 98ZE
CASES
Hunter Valley Developments v Minister for Home Affairs and Environment (1984) 3 FCR 344
Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309
REASONS FOR DECISION
Ms SM Bullock, Senior Member
This an application to the Administrative Appeals Tribunal ("the Tribunal") by Mr Lindsay Brien, the Applicant, for an extension of time to lodge an application for review in relation to a decision by the Registrar, Child Support Agency, made on 14 August 2000, refusing Mr Brien's application for an extension of time within which to lodge an objection. Mr Brien had previously been advised by letter of 15 March 2000, of a decision not to change the assessment of his child support and further advising that he had 28 days within which to lodge an objection to the decision not to change his child support payments (Exhibit R3).
A hearing was held in Sydney before the Tribunal on 8 November 2000. Mr Brien attended the hearing, provided oral evidence and was self represented. The Respondent was represented by Ms K Timbs, Senior Adviser, Child Support Agency. The following documents were taken into evidence:
Exhibit Description Date
A1 Letter from Mr Brien, including request for an extension of time and attachments 27 September 2000
A2 Handwritten record of a telephone conversation with a staff member of the Child Support Agency 30 May 2000
A3 Copy of facsimile message from Mr Brien to "Arunie", a staff member, Child Support Agency 7 June 2000
A4 Copy of facsimile message to the Tribunal from Mr Brien, including: a. Statement by Mr T Milton, Warehouse Supervisor, 3M Aust. P/L, dated 10 November 2000 b. Reference from Mr M J Roser, dated 9 November 2000 c. Leave application forms, dated 9 October 2000 and 31 July 2000 d. Medical Certificates from Dr E Foltin: 6 October 2000; 24 July 2000; 28 July 2000 e. Computerised leave records for annual leave and sick leave 10 November 2000
R1 Submissions by Ms K Timbs, Senior Adviser, Legal Services, Child Support Agency 24 October 2000
R2 Record of a telephone conversation between a staff member of the Child Support Agency and Mr Brien 21 August 2000
R3 Letter to Mr Brien from Ms C Argall, Deputy Child Support Registrar 15 March 2000
R4 Letter to Mr Brien from Ms L Sheargold, ACT-NSW Regional Registrar, Child Support Agency 14 August 2000
It should be noted that at hearing, the Tribunal requested Mr Brien to provide to it any medical certificates or records of leave pertaining to the relevant period under review. Ms Timbs had no objection to this. On 10 November 2000, the Tribunal received the documents described in Exhibit A4. Ms Timbs was provided with a copy of these documents and advised the Tribunal that she did not wish to provide any further comment.
IssuesThe issue in this matter is whether or not the discretion contained within subsection 29(7) of the Administrative Appeals Tribunal Act 1975 should be exercised to allow Mr Brien an extension of time in which to lodge his application for review.
The decision for which Mr Brien is seeking an extension of time to allow his application for review to the Tribunal, relates to a decision of the Child Support Agency not to allow Mr Brien an extension of time in which to lodge an objection. The decision of the Child Support Agency which Mr Brien wishes to object to was made under Part 6A of the Child Support (Assessment) Act 1989 and the decision to refuse his application for an extension of time in which to lodge that objection was made under section 98 ZE of that act.
LegislationThe application for an extension of time is dealt with under the provisions of the Administrative Appeals Tribunal Act 1975. As relevant, subsection 29(7) states:
"(7)The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section)."
Background
The following information is provided by way of background and the facts contained herein are not in dispute:
On 15 March 2000, Mr Brien was advised by the Deputy Child Support Registrar that his application to have his Child Support Assessment changed was refused. The letter advised:
"If you are eligible you can object to this decision if you believe it is incorrect….
To object you will need to:write down the specific errors which you believe were made in reaching the decision and
send your objection to us within 28 days from the time you receive this letter."
(Exhibit R3)
On 7 June 2000, Mr Brien wrote to the Child Support Agency in the following terms:
"I would like to apply for an extension of time to object to the decision made on the 3-3-2000.
I didn't know that you only had 28 days to object, plus I went to Legal Aid in Penrith & they advised me to get a Stay Order. I rang Child Support to let them know what Legal Aid had advised me.
Child Support told me that they would wait until mid June for the Stay Order. I was also advised to state the reasons for my objections to the decision." (Exhibit A3)On 14 August 2000, the Child Support Agency wrote to Mr Brien refusing his application for an extension of time to lodge an objection and noting that he had been advised in a letter dated 15 March 2000, that he had to lodge his objection within 28 days of receiving the notice not to change the assessment. Mr Brien was further advised that if he wished to object to the decision not to grant an extension of time, he could apply to the Tribunal. The Tribunal's telephone number was included in the letter (Exhibit R4).
On 21 August 2000, Mr Brien advised by telephone that he wished to appeal to the Tribunal against the decision of the Child Support Agency not to allow him an extension of time to object (Exhibit R2).
On 27 September 2000, Mr Brien wrote an application for review to the Tribunal in relation to the Child Support Agency's decision not to allow him an extension of time within which to object. The application to the Tribunal was noted to be out of time by the Tribunal and Mr Brien was formally advised that he must make an application to the Tribunal's Sydney Registry for an extension of time within which to lodge his application for review.
On 9 October 2000, Mr Brien lodged an application for an extension of time to the Tribunal.
Evidence of Mr Brien
Mr Brien stated that he has three children, Todd aged 17 years, Jay aged 14 years and Kurt, aged seven years. Jay and Kurt live with their mother and Mr Brien cares for Todd.
Mr Brien related to the Tribunal that his son Todd had experienced many problems during the year 2000. Todd left school in Year 11, however prior to this decision, there had been considerable amounts of stress for both Todd and Mr Brien. Todd had been suicidal and Mr Brien dedicated a great deal of time trying to work through his son's difficulties. This also involved lengthy discussions with Todd's school and Mr Brien having to take time off work. During this period, Mr Brien found that he was very stressed and anxious and his own health suffered. Mr Brien explained to the Tribunal that he was required to take days off work not only to deal with Todd's problems, but because of his own stress, anxiety and associated medical conditions.
During this period, Mr Brien had skin problems, rashes and sores on his scalp. He was required to see a skin specialist, Dr Cronen, in May 2000 and also was provided with medical certificates by his General Practitioner, Dr Foltin. Mr Brien was certified to be medically unfit for work in February, April, May, June and for a five day period in July 2000.
At work, during the period from early 2000 to October 2000, Mr Brien was having difficulty coping. After having a lengthy period off work because of stress, Mr Brien returned to work and was provided with a less stressful position.
Mr T Milton, Warehouse Supervisor at 3M Australia Pty. Ltd., in a statement of 10 November 2000, noted that Mr Brien had worked for the company for the past five years and nine months, working in varying positions within the warehouse. Mr Milton stated:
"In my opinion Lindsay has had problems both emotionally & health wise coping with his divorce, this is highlighted with the period of sick leave he had to have off. It affected his work to the point that 2 months ago he was given a job that was less stressful so that he could cope." (Exhibit A4)
In October 2000, Mr Brien also had to have two days off work, medically certified, for stress. Mr Brien told the Tribunal that towards mid to late October 2000, he was "a nervous wreck". He was not sleeping, his skin had erupted and he just could not "get his thoughts together".
Mr Brien acknowledged that he had communicated with the Child Support Agency and was aware on 21 August 2000, following a conversation with an Agency staff member, that if he wished to make an application for review to the Tribunal, he must do that within 28 days of the letter of 14 August 2000 (indicating that the Agency would not allow him an extension of time within which to lodge an objection in relation to his Child Support assessment.). Mr Brien stated that it was his intention to lodge an application for review to the Tribunal and he started to get his papers together. The difficulty encountered by Mr Brien was that he was bewildered with all that was happening around him. He was trying to cope with his son's difficulties, was shocked that the Child Support Agency would not change his assessment and was also disturbed that he was unable to lodge an objection because he had not done so within the prescribed 28 days. Mr Brien stated that he had been trying his best to undertake all these activities and acknowledged that the Child Support Agency had been very helpful to him. Eventually, Mr Brien did lodge his application for review to the Tribunal, however, it was two weeks late.
At hearing, Mr Brien noted that his circumstances had improved since October 2000. Todd was more settled, Mr Brien was less stressed at work (because of the reduction in his responsibilities) and accordingly Mr Brien's anxiety and other physical health problems had lessened. Mr Brien stated "I am now starting to get my thoughts together".
Other EvidenceMr M J Roser provided a statement to the Tribunal dated 9 November 2000. Mr Roser noted that he had been a neighbour of Mr Brien's for a period of 18 years. They assisted each other and recently Mr Brien had been a great help to Mr and Mrs Roser as Mrs Roser was battling cancer. Mr Roser wrote:
"… He likes to try and work as much overtime as possible to help make ends meet. He is reluctant to ask anyone for help in difficult times, and is reluctant to discuss his problems. My wife and I have been worried about him having days off from work due to stress when his job is so important to him. I know he has been to our local doctor for stress and is always reluctant to discuss this problem. He has discussed with me receiving treatment for stress and is ashamed to admit this. I know from conversation he has difficulty with sleeping and on one occasion ashamed to discuss an infection in his hair brought about by stress.
I know that this year has been extremely difficult for Lindsay in coping with his own problems, however he has always been a good friend and I feel that he has been enduring our problems at the same time as coping with his own." (Exhibit A4)
Submissions
Mr Brien admitted that he had made some mistakes during the year in not meeting certain deadlines. He acknowledged that he had letters and telephone conversations advising him of various time limits within which to firstly lodge an objection in relation to the assessment of Child Support and secondly, in relation to the time limit for lodging an application to the Tribunal. Mr Brien stated that he has had great assistance from the Child Support Agency and in no way wished to be critical of it.
However, Mr Brien submitted that a number of mitigating circumstances prevented him from lodging his respective applications in a timely manner. Foremost, he had had a very stressful year in which his son was experiencing many difficulties including suicidal ideation. This obviously impacted upon Mr Brien in terms of his own anxiety and stress levels as he tried to cope and care for Todd. At work, Mr Brien's job, which carried considerable responsibility, was also causing him anxiety. His own health, as a result of these other difficulties, was suffering. Mr Brien stated that in the context of all these difficulties, the level of overtime at work had dropped and he was therefore not earning as much money. That situation made it difficult for him not only to make ends meet at home but to meet his Child Support financial commitments. Hence his original application to the Child Support Agency to have the level of Child Support reassessed. Mr Brien asked the Tribunal to take all of these circumstances into account.
Mr Timbs for the Respondent noted that Mr Brien had been told in a letter of 15 March 2000, that if he wished to lodge an objection to the Agency's refusal to change the assessment, then he must do so within 28 days (Exhibit R3). Further, Ms Timbs pointed out that in a letter of 14 August 2000 to Mr Brien from the Child Support Agency, he had been further advised that if he wished to reappeal to the Tribunal against the refusal of the Child Support Agency to allow him an extension of time to object, then he must do so by contacting the Tribunal. Further, a file note of a telephone conversation was made on 21 August 2000, between Mr Brien and a Child Support Agency staff member, indicating that Mr Brien was told that he should apply to the Tribunal within 28 days if he wished to lodge an application for review against the Child Support Agency's decision not to grant him an extension of time to object. Ms Timbs pointed out that at hearing Mr Brien did not deny this.
In relation to Mr Brien's personal circumstances, Ms Timbs submitted that the Agency had not been made aware by Mr Brien of all of his difficulties during the year 2000. Ms Timbs referred the Tribunal to Hunter Valley Developments v Minister for Home Affairs and Environment (1984) 3 FCR 344 in which the Federal Court set out the considerations relevant to granting an extension of time to appeal as:
"(i) An applicant for an extension has to rebut a prima facie rule that proceedings should not be commenced outside the prescribed time and to do so he must offer an "acceptable explanation of delay" and that it would be "fair and equitable in the circumstances" to extend time;
(ii) Any action taken by an applicant, apart from making the application for review, which permits a decision maker to be aware that the decisions previously made are not to be regarded as final;
(iii) Any prejudice the respondent may suffer;
(iv) Any unsettling of persons other than the respondent or of established practices;
(v) The merits of the application itself;
(vi) Considerations of fairness between applicants and other persons in similar positions and public interest."
In this regard, Ms Timbs submitted that Mr Brien had been informed of the need to make an objection within 28 days and subsequent to that, of the need to make an application for review to the Tribunal within 28 days. Further, Ms Timbs submitted that the Tribunal must consider the implication of granting an extension of time on Mr Brien's ex-wife. There may well be as a consequence of this application for re-assessment, a back payment of Child Support should Mr Brien be successful and this may have an adverse impact on Mr Brien's ex-wife. While the Respondent may not be prejudiced by a decision to grant an extension of time, Mrs Brien may well be, Ms Timbs submitted. The Tribunal must consider the issues of fairness between Mr Brien and other people in similar positions who would not be granted extensions of time, Ms Timbs contended. There is also the possibility, Ms Timbs noted, that Mr Brien might be able to take alternative action to pursue his rights under provisions of the Family Law Act 1975. Further, Mr Brien could always make another application to have his Child Support assessment varied. Mr Brien is therefore not prevented from possible future changes to the assessment. Ms Timbs contended that Mr Brien had "sat on his rights", although she acknowledged that there is apparently some stress which had existed in his life during the year 2000.
In all the circumstances, Ms Timbs contended that the Tribunal should refuse Mr Brien's application for an extension of time.
FindingsThe Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the submissions and by applying the legislation and case law.
The Tribunal found Mr Brien to be cooperative and honest in the provision of his evidence. The Tribunal accepted Mr Brien as a person of truth.
The Tribunal finds that during the period of May until early October 2000, Mr Brien was experiencing a great deal of stress and anxiety in his life. The Tribunal accepts the evidence that Mr Brien's son, Todd, who was living with him during this period, was highly troubled leading to his having suicidal ideation. Further, while Mr Brien was trying to address his son's serious distress, including spending a great deal of time with Todd and at Todd's school, Mr Brien's work situation was also problematic. Mr Brien's overtime has been reduced, which impacted on him financially, and he was finding it difficult given his home situation, in dealing with the added responsibility of work. The work situation has been corroborated by Mr Brien's supervisor, Mr Milton. It is clear not only from Mr Brien's evidence, but from sick leave records and medical certificates that Mr Brien was taking leave from work because of stress and stress-related physical conditions such as the scalp condition. Mr Brien's work responsibilities were reduced when his supervisor noted that Mr Brien was not coping with his duties.
The Tribunal also finds that Mr Brien was made aware through letters from the Child Support Agency and telephone conversations that he had time limits within which he must lodge firstly an objection in relation to the original decision of the Agency concerning assessment and then subsequently, the time limit for lodging an application for review to the Tribunal. Clearly, Mr Brien did not lodge his objection in time and then did not lodge his application for review to the Tribunal on time.
The Tribunal finds that there is very good reason and explanation as to why Mr Brien did not lodge his objection on time. There were many real stresses and anxieties in Mr Brien's life during the period when he should have lodged his objection. Further, once the time for objection had passed and he lodged an application for an extension to lodge that objection, he was refused. Having indicated to a Child Support Agency staff member that he clearly wished to make an application for review to Tribunal, he then also missed that deadline. The Tribunal does not consider that Mr Brien "sat on his rights", rather the Tribunal finds that he was paralysed by his circumstances from thinking clearly about his responsibilities and putting his intentions into action. The Tribunal finds that there were very sound and clearly identifiable reasons as to why Mr Brien missed the deadlines in which he could lodge applications for an objection or for lodging an application for review to the Tribunal.
The Tribunal has gained some assistance in this matter from consideration of Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309 in which O'Connor J stated:
"(17) The principles to be applied in considering an application for extension of time under s 29(7) were considered by Deputy President Todd in Re Johnson and Commonwealth of Australia (unreported, No 51619, 5 January 1990). Briefly, these are:
(a)Prima facie proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so.
(b)It is relevant whether the applicant rested on his rights or took action to make the decision-maker aware that the decision was being contested.
(c)Any prejudice to the respondent that would be caused by granting the extension of time is relevant.
(d)Any wider prejudice to the general public in terms of disruption to established practices is relevant.
(e)The merits of the substantial application are relevant.
(f)Fairness of granting the extension of time as between the applicant and other persons in a like position is relevant.
(18) The balancing of these factors will depend on the individual case. In cases where there is a second application, the earlier application having been dismissed, the circumstances in which the first application was dismissed will be highly relevant particularly in terms of (b) and (d) above."
In all the circumstances, the Tribunal determines that an extension of time should be granted to allow Mr Brien's application for review to be considered by the Tribunal. The Tribunal considers that there is good reason and explanation for Mr Brien being delayed in his application for review to the Tribunal. The Tribunal does not consider that Mr Brien rested on his rights, he had indicated to the Child Support Agency and to the Tribunal that it was his intention to make an application for review; however, for good reason, he was delayed by two weeks in lodging the necessary paperwork.
The Tribunal does not consider that there is any prejudice to the Respondent caused by the granting of the extension of time when one takes into account all of the circumstances.
This application is in relation to whether or not Mr Brien should be granted an extension of time within which to lodge an application for review to the Tribunal concerning the refusal of the Respondent to allow an extension of time to lodge an objection to a Child Support assessment. Given the new evidence to the Tribunal, which the agency did not have in relation to Mr Brien's extenuating home, work and health circumstances, there is some merit in him being reconsidered as to whether an extension of time to lodge an objection should be pursued. Not to allow Mr Brien an extension of time to the Tribunal, in all the circumstances discussed above, would be unfair in the Tribunal's view.
Accordingly, for the reasons set out above, the Tribunal determines that Mr Brien be granted an extension of time to enable his application for review to be considered by the Tribunal.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member
Signed: .............................[sgnd].................................................
Sharonne Brainenberg, AssociateDate of Hearing 8 November 2000
Date of Decision 22 December 2000
Representative for the Applicant Self RepresentedRepresentative for the Respondent Ms K Timbs, Senior Adviser, Legal Services, Child Support Agency
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