Carlyle and Child Support Registrar (Child support)

[2018] AATA 1237

Carlyle and Child Support Registrar (Child support) [2018] AATA 1237 (27 March 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2017/AC012791

APPLICANT:  Mr Carlyle

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member Y Webb

DECISION DATE:  27 March 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS

Child support – Refusal to grant an extension of time to object – Departure from the assessment – No reasonable reason for delay – No merit – Decision under review 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. This review relates to the child support assessment in relation to the child of Mr Carlyle and Ms Carlyle.  The child is now 19 years old and although the child support case for the child has ended, Mr Carlyle has significant arrears. At all relevant times for child support purposes the child was in the 100% care of Ms Carlyle.

2. Mr Carlyle’s case has a lengthy history.  There have been a number of change of assessment decisions.

3. Mr Carlyle is seeking to object to the change of assessment decision of [Ms A] of the Department of Human Services (“Child Support Agency”) made on 7 August 2014.  His objection was lodged on 25 September 2017.

4. In his objection Mr Carlyle indicated that he wished to also object to the change of assessment decision of [Mr B] of 6 July 2015.  However, Mr Carlyle has already had his objection to that decision disallowed and his application for an extension of time for that objection decision to be reviewed was made to the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal refused an extension of time.  

5. Mr Carlyle therefore is seeking an extension of time to object to the earlier decision of [Ms A] of 7 August 2014.

6. In relation to the decision by [Ms A] of 7 August 2014 she determined that:

   ·For the period 14 July 2014 to 31 October 2015, Mr Carlyle’s adjusted taxable income is set at $45,000;

   ·For the period 14 July 2014 to 13 January 2015, Mr Carlyle’s annual rate of child support is increased by $2,668 per annum;

   ·For the period 14 January 2015 to 13 January 2016, Mr Carlyle’s annual rate of child support is increased by $2,748 per annum;

   ·For the period 14 January 2016 to 13 January 2017, Mr Carlyle’s annual rate of child support is increased by $2,830.

7. Because Mr Carlyle’s objection to [Ms A]’ decision was lodged more than 28 days after he was notified of the decision he was required – in accordance with section 82 of the Child Support (Registration and Collection) Act 1988 (“the Act”) – to apply for an extension of time which he did on 25 September 2017.

8. The Child Support Agency refused his application for an extension of time on 21 October 2017 and so his objection was not considered.

9. On 30 October 2017 Mr Carlyle requested review by the Tribunal of the decision to refuse an extension of time.

10. He attended the hearing on 27 March 2018 in person and gave sworn evidence.

11. At the hearing Mr Carlyle provided a medical certificate dated 6 July 2015 and an affidavit dated 27 March 2018 detailing various events in his life from 1997 to the present day.

ISSUES

1. The issues which arise in this case are whether Mr Carlyle’s objection was lodged outside of the statutory time frame; and if so whether he should be granted an extension of time to object to the decision made on 7 August 2014.

CONSIDERATION

1. The legislation relevant to this review is 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 time frame 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 given for refusing an extension of time were that there was not a satisfactory reason for the delay in Mr Carlyle lodging his objection; there was the potential for prejudice to Ms Carlyle and to the general public if the application was granted, Mr Carlyle rested on his rights and there appeared not to be merit in Mr Carlyle’s objection.

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

1. In considering whether Mr Carlyle should be granted an extension of time, the Tribunal had regard to the principles detailed in the decision of Re Hunter Valley Developments P/L v Minister for Home Affairs and Environment [1984] FCA 176 (Hunter Valley) and subsequent cases. 

2. It is clear from Hunter Valley at [18] that the prescribed period of 28 days is “not to be ignored” (Ralkon v Aboriginal Development Commission [1982] FCA 153) and that the prima facie rule is that in normal circumstances, proceedings commenced outside that period will not be entertained (Lucic v Nolan (1982) 45 ALR 411). 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:1

   ·       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.

   1 Comcare v A’Hearn (1993) 45 FCR 441; Dix v Client Compensation Tribunal (1993) 1 VR 297; Doyle v Chief of Staff (1982) 42 ALR 283; Wedesweiller v Cole (1983) 47 ALR 528.

Was there an acceptable explanation for the delay?

1. Mr Carlyle stated that he may have received the letter dated 7 August 2014 informing him of a change to the assessment. The letter enclosed the decision and a summary of the assessment.  He stated that he moved house a number of times in the period 2010 to 2016 so he cannot be sure whether he received the letters dated 7 August 2014.

2. However, the Tribunal is satisfied that Mr Carlyle did receive the letters of 7 August 2014 as there is included in the Child Support Agency papers a contact note disclosing that Mr Carlyle telephoned the Child Support Agency on 26 August 2014 “enquiring the amount of child support he is now required to pay as a result of the recent COA decision”.

3. In relation to the letter dated 7 August 2014 the Tribunal finds that the letter included the statement: “You can ask us to review the decision (we call this an objection) within 28 days from the date you receive this letter” (emphasis included in the letter). 

4. The Tribunal also finds that by lodging his objection on 25 September 2017 Mr Carlyle’s objection was lodged well outside of the required 28-day period.  Allowing for delivery by post of 10 days the Tribunal finds that Mr Carlyle applied approximately 1,104 days (just over three years) after the expiry of the required 28-day period.

5. Mr Carlyle asserted to the Tribunal that the main reason why he did not lodge an objection earlier to the change of assessment decision of 7 August 2014 was because his “health and mental state of mind was not 100 per cent”.

6. Mr Carlyle provided a brief medical certificate dated [in] July 2015 from the East Adelaide Health Care which stated that “Mr Carlyle has very poorly controlled diabetes  due to neglect due to underlying depression.  This would have affected his concentration and energy levels and therefore his work would have been affected”. The Tribunal acknowledges that Mr Carlyle has been suffering from depression for some years although his current state of health is unknown as the latest medical certificate provided was from [July] 2015.  At the time of the 7 August 2014 decision Mr Carlyle was working and earning an income so the Tribunal is not persuaded that Mr Carlyle was not well enough to lodge an objection to the decision within 28 days if he was aggrieved by it.

7. In his affidavit of [March] 2018 Mr Carlyle recounted a number of negative events which had occurred in his life and which the Tribunal accepts were distressing for him but the vast majority of these were prior to 2014 and not directly relevant to the reasons why he did not object earlier to the decision of 7 August 2014.

8. The Tribunal is not satisfied that there was a reasonable reason for delaying his objection to the decision of 7 August 2014.  It transpired that Mr Carlyle was seemingly well enough to lodge an application for a new change to the assessment on 18 May 2015 and to lodge an objection to the decision of 6 July 2015 within time.  In addition, there were numerous telephone communications between Mr Carlyle and the Child Support Agency in the period between 7 August 2014 and 25 September 2017 such that the Tribunal is satisfied that Mr Carlyle could have lodged an objection within time had he chosen to do so.  

9. Mr Carlyle also stated that he didn’t object earlier because he had only recently completed his income tax returns for a number of past financial years.

10. In the Tribunal’s view, Mr Carlyle’s reasons for lodging his objection late are not persuasive.  He has continued to actively interact with the Child Support Agency and there is no substantial reason why he delayed such a long time to object to the decision of 7 August 2014.  It seems that instead he decided to lodge a further change of assessment application which he did on 18 May 2015.

Action taken by the applicant to make the respondent aware of dissatisfaction with the decision

1. There is no evidence that Mr Carlyle disputed the change of assessment decision at the time that it was made or shortly thereafter.

2. His contacts with the Child Support Agency were mostly concerned with the processes regarding the payment of child support, discussions regarding payment of arrears and the possibility of having NAPs credited.  In a telephone call from Mr Carlyle on 26 September 2014 the Child Support Agency officer also, in discussing the change of assessment decision of 7 August 2014, referred to Mr Carlyle’s objection rights and the need for an extension of time as the decision was made more than 28 days previously.  However, at that time Mr Carlyle did not object or seek any extension of time.

3. The Tribunal is satisfied that Mr Carlyle rested on his rights when he waited more than three years to seek to object to the decision of 7 August 2014.

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

1. The other party to the review is Ms Carlyle.  While it is not likely that the passage of time would hinder her ability to put forward her case should there be a review of the substantive decision, the result of a successful objection may result in a retrospective change to the assessment.  In light of the significant arrears owed by Mr Carlyle it is unlikely that Ms Carlyle would have been overpaid child support.  However, a delay in lodging an objection has the potential to cause uncertainty to Ms Carlyle and to that extent may cause some prejudice to Ms Carlyle arising out of the delay.

Public interest considerations

1. Time frames 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 hardship especially where debts are raised.  In turn, this can have a significant effect, including financial repercussions on the child or 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 a general expectation that unless there is a very good reason, time frames will generally be observed.  This factor weighs against an extension of time in Mr Carlyle’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 Carlyle has an arguable case if the evidence he provides is accepted.

2. Mr Carlyle strongly argued that his objection should be able to be pursued because his taxable incomes over the last few years have not reached the level upon which his child support liability has been based.  He stated that he has not earned $45,000 since the determination was made to set his income at this level in the 7 August 2014 decision of [Ms A] and the subsequent change of assessment decision on 6 July 2015.

3. The Tribunal acknowledges that Mr Carlyle’s taxable income has not reached the level of $45,000 in the financial years affected by the change of assessment decision of 7 August 2014.  This decision affected the financial years 2014/2015, 2015/2016 and 2016/2017.  However, the change of assessment decision was predicated on Mr Carlyle’s asserted income of $45,000 at the time of that decision and the decision maker had no information to suggest that Mr Carlyle would not continue to earn a similar income.  It transpired that Mr Carlyle resigned from his employment in February 2015 and the subsequent change of assessment decision of 6 July 2015 resulted in the decision maker determining that there was insufficient evidence to support Mr Carlyle’s claim that he could not continue working for health reasons.  The decision maker found that Mr Carlyle was not exercising his earning capacity and set his income at $45,000 for a longer period.

4. The Tribunal acknowledges that Mr Carlyle did not in fact earn a taxable income of $45,000 in any of the relevant financial years.  However, the Tribunal is not persuaded that he did not have the potential to do so and that this is what led to the decision maker determining on 6 July 2015 that he was not exercising his full earning capacity.

5. The Tribunal considers it unlikely that Mr Carlyle’s objection has merit.

Conclusion

1. The Tribunal acknowledges that Mr Carlyle holds a genuine view that he has been financially disadvantaged by the change of assessment decision of 7 August 2014.

2. 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 Carlyle’s reasons are lacking in substance, he rested on his rights, he took no action to express dissatisfaction about the decision until a number of years had passed and there is unlikely to be merit to his objection.  In addition, there is some (albeit limited) prejudice to Ms Carlyle and some policy reasons militating against granting an extension of time.

3. Mr Carlyle’s application for an extension of time to object to the decision on 7 August 2014 is refused.

DECISION

The decision under review is affirmed.