Buckner and Child Support Registrar (Child support)

[2019] AATA 4353

Buckner and Child Support Registrar (Child support) [2019] AATA 4353 (5 September 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC016839

APPLICANT:  Mr Buckner

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member Y Webb

DECISION DATE:  05 September 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – application for extension of time - satisfactory explanation for the delay - no merit - extension of time refused

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. This review is about whether Mr Buckner should be granted an extension of time to object to a decision made by the Department of Human Services (“Child Support Agency”) on 6 March 2018 to register and implement Mr Buckner’s court-varied assessment.

2. Mr Buckner and [Ms A] are the parents of three children aged 10, 8 and 5 years old (“the children”).  At all relevant times for child support purposes the children were in the 100% care of [Ms A].

3. The background to this review is that on 22 February 2018 the Family Court of Australia made a departure order from the administrative assessment issued by the Child Support Agency ordering periodic child support and non-periodic payments of child support effective from 2 February 2018.  A sealed copy of the orders was sent to the Child Support Agency.

4. On 6 March 2018 the Child Support Agency wrote to Mr Buckner advising that it had made a change to the child support assessment as a result of receiving more up-to-date information.  The Child Support Agency advised that for the period 2 February 2018 to 31 January 2019 the child support payable was $3,730.75 per month. 

5. On or about 9 June 2019 Mr Buckner formally lodged an objection to that decision to register and implement the court-varied assessment from 2 February 2018. He requested an extension of time to object.

6. On 17 June 2019 a delegate of the Child Support Agency refused Mr Buckner an extension of time.

7. On 1 July 2019 Mr Buckner requested review by the Administrative Appeals Tribunal (“the Tribunal”) of the decision to refuse an extension of time.

8. He attended the hearing on 5 September 2019 by way of a telephone conference and gave evidence on affirmation.

ISSUES

1. The issues which arise in this case are whether Mr Buckner’s objection was lodged outside of the statutory timeframe; and if so whether he should be granted an extension of time to object to the decision made on 6 March 2018.

CONSIDERATION

1. The legislation relevant to this review is the Child Support (Registration and Collection) Act 1988 (the Act).

2. The relevant sections in relation to the Act are section 81 (Time limits on lodging objections), section 82 (Applications for extension of time) and section 83 (Consideration of applications for extensions of time for lodging objections). 

3. Section 81 requires that a person must lodge an objection to a decision within 28 days of notice of the decision.  Section 82 of the Act provides that a person may request an extension of time to lodge an objection if the statutory timeframe has ended.  The application must state fully and in detail the grounds of the application, including the circumstances and the reasons for the failure of the person to lodge as required by section 81 (that is, within 28 days).

4. The Registrar must consider an application for an extension of time and either grant or refuse that application.  In circumstances where a person’s application is refused, the person may apply to the Tribunal for a review of that decision (section 89 of the Act).

5. In this case, the Child Support Agency refused the application and provided reasons.  In brief summary, the reasons for refusing an extension of time were that while Mr Buckner provided a reasonable reason for the delay in objecting, there would be prejudice to [Ms A] and the general community.  Primarily however the Child Support Agency delegate determined that the objection does not have merit because the Child Support Agency does not have jurisdiction to amend or discharge a court-varied assessment.

Should Mr Buckner be granted an extension of time to object?

1. In considering whether Mr Buckner should be granted an extension of time, the Tribunal had regard to the principles detailed in the decision of Hunter Valley Developments Pty Ltd v Cohen[1] and subsequent cases.[2] 

   [1] [1984] FCA 176 (Hunter Valley)

   [2] Including Mulheron and Australian Telecommunications Corporation [1991] AATA 673

2. It is clear from Hunter Valley at [18] that the prescribed period of 28 days is “not to be ignored”[3] and that the prima facie rule is that in normal circumstances, proceedings commenced outside that period will not be entertained.[4]  In short, Wilcox J in Hunter Valley at [18] stated that it would not be appropriate to “grant the application unless positively satisfied that it is proper to do so”. The relevant case law establishes that the decision maker must consider and balance the following factors:

   ·       the explanation for the delay and whether the explanation is acceptable and whether it is fair and equitable in the circumstances to grant the extension;

   ·       action taken by the applicant to make the respondent aware of dissatisfaction with the decision;

   ·       any prejudice to other parties to the review arising out of the delay;

   ·       whether issues arise of public interest; and

   ·       the merits of the case.

   [3] Ralkon v Aboriginal Development Commission [1982] FCA 153

   [4] Lucic v Nolan (1982) 45 ALR 411

Was there an acceptable explanation for the delay?

1. Mr Buckner told the Tribunal that due to his unemployment in July 2018 and the financial hardship he was suffering he made an application to the court seeking that the child support departure decision of 22 February 2018 be amended or discharged.  He stated that he was informed by the court on 15 March 2019 that he first needed to exhaust his options with the Child Support Agency and the Administrative Appeals Tribunal.

2. Mr Buckner advised, and the Tribunal accepts, that he only became aware of this requirement when he attended court on 15 March 2019.

3. The Tribunal accepts that from that date onwards Mr Buckner was in frequent contact with the Child Support Agency about his options and the applications he needed to make to have the court-varied assessment amended or discharged.

4. Hence, the Tribunal is satisfied that Mr Buckner did have an acceptable explanation for the delay in objecting and that he did not rest on his rights.

Prejudice to the other party to the review arising out of the delay

1. The other party to the review is [Ms A].  The decision to register and amend the child support assessment (as varied by the court) was made in March 2018 and a retrospective determination has the potential to impact on [Ms A]’s confidence in the processes of the Child Support Agency. A delay in lodging an objection has the potential to cause uncertainty to [Ms A] and to that extent may cause some prejudice to her arising out of the delay.

2. On balance, the Tribunal is satisfied that there would most likely be some prejudice to [Ms A] arising out of the delay.

Public interest considerations

1. Timeframes for initiating legal proceedings serve a useful public purpose.  This principle is particularly relevant and important in the child support jurisdiction.  Very often parents affected by Child Support Agency decisions have limited financial resources and make financial decisions based on the decisions made by the Child Support Agency.  This is the case whether the parent is a payee or a payer.  When those decisions are overturned there can be significant financial repercussions for the parents.  Lengthy delays in decision making can result in significant financial hardship.  In turn, this can have a significant effect, including financial repercussions on the children subject to the assessment.  There are therefore sound public policy reasons for imposing a time limit on objections to decisions.  A time limit reduces uncertainty in relation to the financial circumstances of the parties. In addition, the public has an expectation that unless there is a very good reason, timeframes will generally be observed.  This factor weighs against an extension of time in Mr Buckner’s case.

Merits of the case

1. In considering the merits of the case, it is not appropriate for the Tribunal to form a conclusive view in extension of time proceedings.  Rather, the Tribunal needs to consider whether Mr Buckner has an arguable case if the evidence he provides is accepted.

2. In this case the Tribunal does not consider that Mr Buckner’s objection has merit.  Mr Buckner confirmed that the reasons that he is seeking an amendment to the child support departure orders made by the court and effective from 2 February 2018 are twofold. He contends that:

   ·the child support departure orders made by the court were informed by inaccuracies in the financial statement prepared for the court proceedings.  His earning capacity was overstated and an annual bonus which was included was not paid in the 2017/2018 year; and

   ·his financial circumstances changed very significantly after the orders were made.  His employment was terminated in July 2018 on the giving of three months’ payment in lieu of notice.  He did not secure alternative employment until April 2019 and suffered financial hardship.  The salary of his new employment is considerably lower than his previous salary resulting in the child support departure order being unjust and inequitable.

3. However, the decision to which Mr Buckner is objecting is the decision by the Child Support Agency to register and implement the court-varied assessment. Section 119 of the Child Support (Assessment) Act 1989 provides that when a court’s decision under the child support legislation becomes final, the Registrar must immediately take such action as is necessary to give effect to the decision in relation to any administrative assessment that has been made in relation to the children, the carer entitled to child support and the liable parent (whether by amending the assessment or otherwise).

4. Upon receipt of the Family Court of Australia orders of 22 February 2018 the Child Support Agency gave effect to the child support departure order in those orders.  It wrote to Mr Buckner by letter dated 6 March 2018 informing him that the child support assessment had been amended from 2 February 2018 to comply with the court orders.  Mr Buckner agreed that he received that letter.  He also agreed that the amended assessment accurately reflected the court orders of 22 February 2018.

5. The Tribunal does not consider that there has been any error in the Child Support Agency’s registration and implementation of the court orders.  Mr Buckner did not suggest that there had been any error in relation to the actions taken by the Child Support Agency upon receipt of the child support departure court orders.

6. Mr Buckner’s issue is that he is seeking that the child support departure orders of the court be amended or discharged.  As neither the Child Support Agency nor the Tribunal has the jurisdiction to amend or discharge a child support departure order of the court Mr Buckner’s objection would be futile.

Conclusion

1. In considering his application for an extension of time to object to the change of assessment decision, and in weighing all of the relevant factors, the Tribunal is satisfied that Mr Buckner’s reasons for the delay are acceptable and he did not rest on his rights.   There will likely be some prejudice to [Ms A] and some policy reasons militating against granting an extension of time.  However, the merits of his objection do not appear to have any substance.

2. The Tribunal therefore does not consider that in all of the circumstances it would be fair and equitable to grant the extension of time.

3. Mr Buckner’s application for an extension of time to object to the decision on 6 March 2018 is refused.

DECISION

The decision under review is affirmed.