Brigham and Child Support Registrar (Child support)

[2019] AATA 1688

Brigham and Child Support Registrar (Child support) [2019] AATA 1688 (30 April 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/BC015669

APPLICANT:  Mr Brigham

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member J Thomson

DECISION DATE:  30 April 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – refusal of extension of time to object – applicant did not rest on their rights – no merit to substantive issue – decision 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. Mr Brigham is the parent liable to pay child support to Ms [A] for their children, [Child 1], born 2008, and [Child 2] born 2009 (the children), who are recorded as being in the shared care of the parents.

2. On 28 August 2018, the Department of Human Services – Child Support (the Department) made a decision to refuse Mr Brigham’s application for a change of assessment of child support payable by him to Ms [A] for the children referred to in paragraph 1. That decision was notified to Mr Brigham by letter dated 3 September 2018.

3. On 24 October 2018, Mr Brigham objected to that decision.

4. On 19 November 2018, and objections officer refused Mr Brigham an extension of time within which to lodge the objection.

5. Mr Brigham then applied to the Tribunal to have the objections officer’s decision reviewed. The Tribunal heard the matter on 5 March 2019. Mr Brigham attended the hearing by conference telephone and gave affirmed evidence. The Tribunal had before it documentation provided by the Department, pages 1 to146. This documentation was admitted into evidence and marked Exhibit 1. Mr Brigham had copies of these documents with him at the hearing.

CONSIDERATION

1. The Tribunal has considered the affirmed evidence given by Mr Brigham at the hearing and the papers provided by the Department (Exhibit 1).

2. The legislation relevant to this application is contained in the Child Support (Registration and Collection) Act 1988 (the Registration Act) and the Child Support (Assessment) Act 1989 (the Act). The relevant provisions are summarised below.

3. A parent may object to a decision made by the Department pursuant to section 80 of the Registration Act. Section 81 of the Registration Act provides that an objection must be lodged within 28 days after notice of the decision is served on the person.

4. The Department sent Mr Brigham a letter dated 3 September 2018 notifying him of the decision to refuse his application for a change of assessment of child support for the children. Section 19 of the Child Support (Assessment) Regulations 2018 provides that, unless the contrary is proved, service will be taken to have been affected at the time when the notice would, in the ordinary course of the post, have arrived at the place to which it was addressed. Mr Brigham is therefore taken to have been served with the notice by mid-September 2018, and needed to have lodged an objection with the Department by mid-October 2018, which he did not.

5. Section 82 of the Registration Act relevantly provides that a person may apply for an extension of time in which to lodge an objection. The Registration Act does not set out criteria for consideration, but departmental policy contained in the Child Support Guide provides useful guidelines under chapter 4.1.5. In summary, the Child Support Guide suggests it is ultimately a question as to whether the interests of justice favour the grant or refusal of the application in the particular circumstances. Factors to be considered are the reason for the delay, the merits of the objection, whether the person has rested on their rights and any potential prejudice to the other party or the public.

6. The established cases indicate that the starting position is the prima facie rule that proceedings commenced outside a statutory period will not be entertained (Lucic v Nolan (82) 45 ALR 411 at [416]. However, the primary concern “is to do that which will enable justice to be done between the parties” (Martinsen v Secretary, Department of Family & Community Services [2004] FCA 297 per Spender J). In Lucic v Nolan Spender J quoted Mc Hugh J in Gallo v Dawson (1990) 64 ALJR 459 as follows:

   … In order to determine whether the rules [imposing time limits] will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time…

   When the application is for an extension of time… it is always necessary to consider the prospects of the applicant succeeding in the appeal…

7. In line with Wilcox J’s survey of cases in Hunter Valley Developments P/L v Cohen (1984) 3 FCR 344, the Tribunal proposes to consider the matters identified in Gallo v Dawson under the following heads:

   ·the explanation for the delay;

   ·the merits of the substantial application;

   ·any prejudice to the other party including any prejudice in defending the proceedings occasioned by the delay; and

   ·any public interest considerations that might flow from a successful application including “the unsettling of other people…or of established practices”.

Explanation for the delay

1. Mr Brigham acknowledged in his evidence that he received the Department’s letter of 3 September 2018, notifying him of its decision of 28 August 2018 to refuse his change of assessment application, but was unable to recall, nor did he make a note of, the date he received that letter.

2. However, he gave evidence of his having lodged a formal “online” complaint with the Department on 17 September 2018 (see page 86 of Exhibit 1), in which he articulated the substance of his objection to the Department’s decision of 28 August 2018, the receipt of which was acknowledged by the Department in its responsive letter of 27 September 2018 (see page 87 of Exhibit 1).

3. The Department’s file note at page 88 of Exhibit 1 dated 11 October 2018 records a telephone conversation between a Department officer and Mr Brigham in the course of which Mr Brigham indicated his intention to seek review of the Department’s 28 August 2018 decision. In a further undated written communication with the Department appearing at page 91 of Exhibit 1, Mr Brigham refers to his telephone conversation with the Department on 11 October 2018 and confirms his intention to lodge a formal objection to the Department’s change of care decision dated 28 August 2018.

4. On 24 October 2018, the Department received Mr Brigham’s objection dated 16 October 2018 and supporting material (see pages 94 to 117). However, he did not include a formal request for an extension of time in which to lodge the objection.

5. The Tribunal is satisfied Mr Brigham has not rested on his rights and was actively pursuing his rights to object to the Department’s decision of 28 August 2018. It is clear from the communications he had with the Department between 17 September 2018 and 16 October 2018, particularised above, that he intended objecting to the decision. The Tribunal is satisfied he has provided a reasonable explanation for his delay in lodging a formal objection to the Department’s decision.

Merits of the objection

1. In considering the merits of Mr Brigham’s substantive case on appeal and his prospects of success, it is not the Tribunal’s role to embark upon a detailed consideration of the evidence and the merits. The question that must be asked is whether the applicant for an extension of time to object has an arguable case. This involves consideration as to whether the applicant can produce evidence to establish the facts put forward on the extension application which would amount to an arguable case, having regard to the facts put forward and the law against which those facts must be considered.

2. Mr Brigham’s grounds of objection seem to relate to his assertion that Ms [A]’s income and financial resources available to her for child support purposes are not accurately reflected in the administrative assessment, and that no proper investigation of her income and financial resources has been undertaken by the Department.

3. As noted by the objections officer in the decision under review, there have been multiple previous decisions made on this case, in the course of which Ms [A]’s income and financial resources have been closely scrutinised.

4. Mr Brigham’s case centres on allegations that Ms [A] is in receipt of some form of rental/homestay income, eBay sales, and a large deposit to her PayPal account of $186,218.31USD in April 2017. In support of these allegations, Mr Brigham has submitted bank account statements for periods relating to the early part of 2017. All of these allegations were considered in the course of a change of assessment application by Department decision maker [Ms B] on 4 June 2018, and dismissed.

5. Notably, Mr Brigham did not object to DM [Ms B]’s decision of 4 June 2018, when he had the opportunity to do so.

6. Mr Brigham also appears to be challenging the determination of Ms [A]’s adjusted taxable income at $48,369 used in the assessment for the period 1 July 2018 to 31 December 2018. However, at hearing, he acknowledged that he has no direct evidence as to the nature of Ms [A]’s current employment, or her level of income, other than anecdotal evidence from the children of approximately 10 and 8 years of age respectively.

7. The financial documentation attached to his formal objection received by the Department on 24 October 2018 at pages 95 to 106 of Exhibit 1 relates to the early part of 2017, and not the period 1 July 2018 to 31 December 2018 being considered in the decision of 28 August 2018, the subject of Mr Brigham’s objection, and there is no evidence relating to Ms [A]’s current income or financial circumstances.

8. Ms [A] acknowledged in evidence in the course of the change of assessment application process conducted by DM [Ms C] resulting in the decision of 28 August 2018 that she has returned to work and her gross income is in the vicinity of $54,000.

9. Both DM [Ms C] and the objections officer calculated the annual rate of child support payable by Mr Brigham using his gross income of $79,976 per annum reflected in his change of assessment application dated 28 June 2018 (see pages 41 to 53 of Exhibit 1), and Ms [A]’s gross income of $54,000, and concluded that there was not sufficient dissimilarity in the annual rate to justify a finding that the current assessment is unfair.

10. The Tribunal therefore finds that the evidence, on balance, suggests that Mr Brigham’s case has no merit, and his prospects of success, if an extension of time to object to the Department’s decision of 28 August 2018 were to be granted, would be poor.

Potential prejudice to Ms [A]

1. Notwithstanding the Tribunal has found Mr Brigham has a satisfactory explanation for his delay in lodging his objection within the statutory time frame, the unlikely prospect of his objection succeeding outweighs the granting of an extension of time to lodge his objection. Ms [A] is entitled to rely on the decision made by the Department on 28 August 2018 and expect certainty and finality.

Public interest considerations

1. Parliament has seen fit to set a 28 day time limit for the lodgement of the objections so parents (and the Department) can act with certainty as to the outcome when the objection period has elapsed. The public has an interest in reviews of decisions made by the Department being performed in a timely fashion and in a manner that ensures all applications are treated fairly and equally. Accordingly, an extension of time for objection is not to be automatically granted.

2. The Tribunal has found Mr Brigham’s prospects of success in the substantive application are poor, and concludes that the interests of justice are best served by refusing to grant an extension of time.

DECISION

The decision under review is affirmed.