Chang and Child Support Registrar (Child support)

[2018] AATA 3208

Chang and Child Support Registrar (Child support) [2018] AATA 3208 (22 June 2018)

DIVISION:  Social Services & Child Support Division

REVIEW NUMBER:  2018/MC013877

APPLICANT:  Ms Chang

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:  Ms Hamilton-Noy, Member

DECISION DATE:  22 June 2018

DECISION:

The tribunal affirms the decision under review.

CATCHWORDS
Child support – Refusal of extension of time to lodge objection – Significant delay – Not proper to grant extension of time – 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 application relates to a decision by the Department of Human Services – Child Support (the Department) to refuse to grant an extension of time to Ms Chang to object to a decision of the Department.

2. Ms Chang and Mr Chang are the separated parents of [Child 1] and [Child 2].  As at June 2016, the following administrative assessments were in place for the parties:

   ·      For the period 25 April 2016 to 30 June 2016, Mr Chang was to pay $2,704 per annum, based on his income estimate for 2015/2016 of $0 and Ms Chang’s 2014/2015 adjusted taxable income of $18,878;

   ·      For the period 1 July 2016 to 30 November 2016, Mr Chang was to pay $11,528 per annum, based on his 2014/2015 adjusted taxable income of $60,430 and Ms Chang’s 2014/2015 adjusted taxable income of $18,878.

3. On 17 June 2016 Mr Chang applied to the Department for a departure determination, on the basis that the administrative assessment of child support was unfair because of both Mr Chang’s and Ms Chang’s income, property and financial resources; and because of the costs of educating the children.  Ms Chang cross-applied on the basis of the costs of educating the children; because of high child care costs for a child under 12; and because of Mr Chang’s earning capacity.

4. On 19 October 2016 a senior case officer of the Department found a ground established to depart from the administrative assessment of child support and made a departure determination on the following grounds:

   ·For the period 1 January 2016 to 31 December 2016, the annual rate of child support payable is reduced by $1,779 (varying the terms of an earlier departure determination made by the Department);

   ·For the period 1 June 2016 to 31 December 2017, Mr Chang’s adjusted taxable income is varied to $74,888;

   ·For the period 1 June 2016 to 30 November 2016, Ms Chang’s self-support amount is varied to $31,379;

   ·For the period 1 December 2016 to 31 December 2017, Ms Chang’s self-support amount is varied to $31,521;

   ·For the period 1 January 2017 to 31 December 2017, the annual rate of child support is increased by $971.

5. On 21 March 2018 Ms Chang lodged an objection to the decision of 19 October 2016.  On 5 April 2018 she requested an extension of time in which to lodge her objection.

6. On 6 April 2018 the Department notified Ms Chang that her request for an extension of time to lodge her objection had been refused.

7. On 16 April 2018 Ms Chang applied to the Administrative Appeals Tribunal for an independent review of the decision to refuse the extension of time application.  The matter was heard on 22 June 2018 on which date the applicant spoke to the Tribunal by telephone.  The Tribunal had before it documents provided by the Department, which had been provided to the applicant prior to the hearing.  The applicant confirmed receipt of the documents with the Tribunal.

CONSIDERATION

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).

2. Section 81 of the Registration and Collection Act requires that a person must lodge an objection to a decision of the Registrar within 28 days after a notice of the decision is served on the person and section 80 provides that such an objection must be in writing. Where the period for lodgement has ended, the person may send the objection to the Registrar along with an application requesting that the objection be treated as if it was duly lodged, that is, that it was lodged within the allowed time (section 82 of the Registration and Collection Act).

3. Section 83 of the Registration and Collection Act requires that the Registrar of the Department must make a decision to either grant or refuse an application for an extension of time. If granted, the Registrar must deal with the objection and if refused the Registrar must give written notice of the decision and must in the decision advise that if the person disagrees with the extension of time decision, they may seek a review of that decision by the Tribunal.

4. In Brisbane South Regional Health Authority v Sommerville (1996) 186 CLR 541 (Brisbane South Regional Health Authority), the High Court in dealing with an extension of time case and the general concept of time limitation periods, noted that while an extension of time is the exception to the general rule, there are legislative provisions which, in the circumstances of the facts of an individual case, may indicate that justice is served by the general rule being overruled.

5. In making this decision, the Tribunal considered the guiding principles for the exercise of a discretion to allow an extension of time as set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (Hunter Valley Developments).  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 in general, applications or proceedings commenced outside of a prescribed time limit will not be considered.  The Court also said that there must be an acceptable explanation for the delay and that it must be fair and equitable in the circumstances to extend time.  The Federal Court identified six factors to take into account when deciding whether to grant an extension of time.  In the context of more recent child support cases, for example, Vickers and Child Support Agency [2006] AATA 112 and McConnell and Child Support Registrar [2005] AATA 342, the Administrative Appeals Tribunal has applied the principles set out in the Hunter Valley Developments case and Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42.

6. These authorities establish that when considering whether to exercise the discretion to allow an extension of time, a decision-maker should consider and balance a range of factors including:

   ·      The reasons for the delay and whether the applicant rested on their rights or took action to make the decision-maker aware that the decision was being contested;

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

   ·      Any wider prejudice to the general public;

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

   ·      The merits of the substantive application;

   ·      Whether it is proper to grant an extension of time.

7. In light of the approach by the Administrative Appeals Tribunal in recent times and mindful that the Hunter Valley Developments case factors are only a “guide”, the Tribunal has taken these factors into account in determining whether the extension of time should be granted in this case.

8. Ms Chang told the Tribunal that when the decision was originally made, the Department told her Mr Chang’s income was not “fixed”.  She had raised her concerns about Mr Chang only having provided one payslip when she had provided three.  The industry he works in pays commission and one payslip did not provide a true indication of what he was earning.  When he eventually did his income tax return (for 2016/2017) in early 2018, he earned $30,000 more than the Department had calculated.  She then started to make phone calls to the Department about the decision.

9. In response to questions put by the Tribunal, Ms Chang stated that the Department’s calculation of Mr Chang’s income of $74,888 sounded wrong to her, as the entire time they were together he had earned in excess of $140,000 as a base retainer and had earned commission on top of this.

10. The Tribunal noted the letter sent to Ms Chang at the time of the original decision, dated 24 October 2016, where it was noted that: “You can ask us to review the decision (we call this an objection) within 28 days from the date you receive this letter.”  As to why she had not objected at that point, given she knew the income calculated by the Department was incorrect, she stated that the case manager was persuasive in advising her she could be worse off and bullied her into not objecting.

11. The Tribunal took Ms Chang to a record of discussion she had had with the Department on 28 October 2016, where the details of the decision were discussed with her and it was noted that Ms Chang disagreed with aspects of the decision.  The record of the discussion reflected that Ms Chang stated she would be objecting as she disagreed with the calculation, and the case officer agreed to post objection forms to Ms Chang, with the explanation that she could write an objection on paper with her reasons and her signature.  Ms Chang stated in response that she is not sure whether she received the forms or not, but she was bullied into not objecting.

12. As to the merits of the matter, Ms Chang stated that Mr Chang’s tax return was completed some time after the decision and the Department did not have that information then.  She agreed that Mr Chang’s 2015/2016 adjusted taxable income had been much lower, around $60,000, and that her child support rate had increased at the end of the departure period, from 1 January 2018 onwards.  She submitted that Mr Chang put numerous estimates of income in to the Department, which was consistent with the Tribunal’s observation from the documents provided by the Department.

13. In response to further questions by the Tribunal, Ms Chang submitted that there would be no prejudice to the other party or to the wider public if the extension of time were granted.  She stated that she had put a further change of assessment application in several months prior which had not been accepted by the Department.

14. In terms of the matters the Tribunal must consider, as set out above, the Tribunal considered that, at the time the original decision was made in October 2016, Ms Chang had concerns about the use of only one payslip being provided by Mr Chang and the inaccuracies this may have caused in the Department’s calculations.  She was aware that Mr Chang’s income had historically been higher than that calculated by the Department.  She was sent a letter advising of the 28 day time limit at the time the decision was made and had a telephone conversation with the Department in late October 2016 where the need for a written objection appeared to have been explained to her.  While the preparation of the income tax return in early 2018 provided further information, it was not the only information available to the Department to review the decision at an earlier time.  The Tribunal noted that the lodging of the objection was 476 days outside of the time limit and considered that the applicant rested on her rights for a significant period of time outside of the time limit set by the legislation.

15. As to the merits of the substantive decision, the Tribunal accepted that Mr Chang’s eventual adjusted taxable income was higher than that set by the Department.  However, the senior case officer’s decision had also increased Ms Chang’s self support amount and otherwise increased child support payable due to educational costs of the children.  While there may be some merit in reviewing the aspect of the decision challenged by the applicant, the Tribunal noted that there were several variations to child support payable made by the senior case officer, a number of which were favourable to the applicant.

16. The Tribunal finds that there would be some, but not significant, prejudice to the other party given that part of the senior case officer’s decision deals with periods of time now two years in the past.  The Tribunal considered that there would be some prejudice to the wider public, on the basis that the public expects decisions by government agencies to be finalised in a timely manner.  The Tribunal found that there would be no unfairness as between the applicant and others in a similar position who are also able to have a request for an extension of time considered on the merits of their particular case.

17. The Tribunal took into account the principles established in Brisbane South Regional Health Authority and in Hunter Valley Developments Pty Ltd, and had particular regard to the length of the delay in objecting to the decision following a discussion with the Department in late October 2016 about the lodgement of a written objection.  On balance, the Tribunal concluded that it is not proper to grant the extension of time sought in this case.  The Tribunal therefore found that the Department’s decision is legally correct and this decision is affirmed.

DECISION

The tribunal affirms the decision under review.