Bromfield and Child Support Registrar (Child support)

[2019] AATA 3856

Bromfield and Child Support Registrar (Child support) [2019] AATA 3856 (25 June 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC016392

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member K Dordevic

DECISION DATE:  25 June 2019

CATCHWORDS

CHILD SUPPORT – refusal to grant an extension of time to object – satisfactory explanation for the delay – arguable merit – weighing all factors the extension of time should be granted – decision under review set aside and substituted

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.

1. The decision of the tribunal and the reasons for the decision were delivered orally on 25 June 2019.

2. The following paragraphs are the reasons for the tribunal’s decision.

Reasons for decision

1. This review concerns whether an extension of time should be granted to allow Ms Bromfield to lodge an objection to a decision made by the Department of Human Services ‒ Child Support (the Department).

2. Ms Bromfield and Mr [A] are parents of one child. There has been a child support assessment in place since 1 October 2008. Since 1 February 2010 the liability under the assessment has been registered for collection.

3. On 6 May 2015 the Department varied Mr [A]’s income to $312,000 for the period 1 April 2015 to 31 December 2017.

4. On 19 October 2017 the Department made a new the decision, varying Mr [A]’s income to $229,104 for the period 28 August 2017 to 31 January 2019.

5. Ms Bromfield lodged an objection to this decision on 27 March 2019. On 8 April 2019 her extension of time application was refused. She then lodged an application to this tribunal on 19 April 2019, seeking a review of the decision to refuse her extension of time application.

6. Ms Bromfield attended a hearing today in person. In addition to her oral evidence, the tribunal had regard to the documents supplied by the Department (folios 1 to 156) and the additional documents Ms Bromfield provided (A1–A36), a copy of which will be provided to the Department.

7. Subsection 80(1) of the Child Support (Registration and Collection) Act 1988 (the Act) provides that a party to a child support assessment can lodge an objection in writing to various decisions, including departure determinations.

10.  Section 81 of the Act requires that a person must lodge an objection to such a decision within 28 days after a notice of the decision is served on them. Where that period for lodgement has ended, a person may send their objection to the Registrar along with an application requesting that the objection be treated as if it was lodged within the allowed time (section 82 of the Act). Section 83 of the Act provides that the Registrar must consider the application for extension of time, then grant or refuse that application and advise the person of the decision in writing. Section 89 of the Act allows the person who applied for the extension of time to apply to this tribunal for a review of that decision.

11.  The tribunal considered the guiding principles for the exercise of the discretion to allow an extension of time, as set out in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186. In that case, the Federal Court said that an extension of time should not be granted unless it was proper to do so, noting that generally applications commenced outside of the prescribed time limit will not be considered. The Court held that a pre-condition for the discretion to be exercised favourably is that an applicant provides an acceptable explanation of the delay and that it is fair and equitable in the circumstances to extend the time.

12.  A consideration of other relevant authorities establishes that when considering whether to allow an extension of time, the tribunal should consider and balance a range of factors that generally include:

• the reasons for the delay and whether the applicant rested on their rights;

• the merits of the substantive application;

• any prejudice to the other party including any difficulties that they will experience in providing evidence as a result of the delay;

• wider prejudice to the general public;

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

• whether it is proper to grant the extension of time.

13.  The tribunal understands that when the original departure determination was made, Mr [A] had provided payslips for consideration in the determination of his income. There was no reason for the Department or Ms Bromfield to doubt the veracity of these payslips. Ms Bromfield only recently become aware that Mr [A] had completed his 2016, 2017 and 2018 notices of assessment, which indicate that his income was significantly higher than that outlined in the payslips he provided the Department.

14.  The tribunal finds that Mr [A]’s 2016, 2017 and 2018 notices of assessment were $445,076, $494,072 and $516,391 SGD respectively. Clearly Mr [A]’s declarations to the Department were not accurate as to his income; therefore the amended adjusted taxable income of $229,104 is not an accurate representation of his income and financial resources in the listed financial years, noting that the Singaporean fiscal year is 1 April to 31 March.

15.  The tribunal first considered Ms Bromfield’s reasons for delay and whether she rested on her rights. Upon identifying the evidence regarding Mr [A]’s notices of assessment, Ms Bromfield lodged her application to the Department. The tribunal is satisfied that her contacts with the Department clearly indicate that she did not rest on her rights. It was only recently that she discovered this evidence. Thus, her delay was reasonable.

16. The tribunal next considered the merits of her objection. Section 111 of the Child Support (Assessment) Act 1989 states that a parent must apply to a Court in relation to an application made more than 18 months before the application is made. Relevant to Ms Bromfield’s application, this means that the administrative assessment may only be varied from 26 September 2017.

17.  From 26 September 2017 to 13 September 2018, Mr [A] was liable to pay $12,611 in child support per annum. Application of his 2017 notice of assessment would increase his annual child support liability by about $3,500. During the period 14 September 2017 to 30 September 2018, Mr [A] was liable to pay $20,927 in child support per annum. Thus, application of his 2018 notice of assessment to the administrative assessment for the period 1 October 2018 to 31 January 2019 would make no change to the administrative assessment. The tribunal notes that Mr [A]’s adjusted taxable income has been amended to $536,000 for the period 1 February 2019 to 31 December 2019.

18.  Thus, Ms Bromfield’s objection related to the putative underpayment of $3,500 in child support. There is merit to Ms Bromfield’s objection.

19.  The tribunal considered any possible prejudice to Mr [A] or to the wider public. The tribunal does not consider that there would be significant prejudice to Mr [A] if Ms Bromfield were granted an extension of time, as he has the financial capacity to meet an outstanding arrears that may be payable should the decision be granted in Ms Bromfield’s favour. However, the tribunal considers that there may be prejudice to the wider public as, given the passage of time, there is often a reluctance to retrospectively amend an assessment. Further, a decision to grant an extension of time in which to lodge Ms Bromfield’s objection may lead to unnecessary administrative costs.

20.  The tribunal next considered the fairness in granting an extension of time as between Ms Bromfield and others in a similar position. The tribunal finds that it would be fair to others to grant Ms Bromfield an extension of time. This is because she had adequate reasons for her delay, did not rest on her rights and her objection may have merit.

21.  The tribunal considers that in the circumstances of this case, it would be proper to grant Ms Bromfield an extension of time to object to the Department’s decision of 19 October 2017.

22.  The decision under review is set aside and a decision substituted that Ms Bromfield is granted an extension of time in which to lodge her objection to a decision made on 19 October 2017.