Chopra and Child Support Registrar (Child support)

[2020] AATA 4305

Chopra and Child Support Registrar (Child support) [2020] AATA 4305 (28 July 2020)

DIVISION:  Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2020/BC019260

APPLICANT:  Miss Chopra

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                28 July 2020

APPLICATION:

An extension application made on 15 June 2020 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 23 April 2020 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

CHILD SUPPORT – application for extension of time – no 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.

STATEMENT OF REASONS

1. On 15 June 2020 Miss Chopra lodged an application with the Administrative Appeals Tribunal (the Tribunal) for an extension of time for review of a child support decision made on 23 April 2020.  The matter was considered on 28 July 2020 on the papers (consistent with the Tribunal’s “Child Support Review Directions”).  The Tribunal had before it a bundle of documents provided by the Child Support Agency.

2. Miss Chopra and [Ms A] are the parents of [Child 1] (born October 2015).  The case commenced on 16 May 2018 and [Ms A] is the parent liable to pay child support under the assessment.

3. On 30 September 2019 Miss Chopra applied for a change to the administrative assessment on the basis of the high cost of child care (the ground commonly referred to as Reason 6) and a parent’s income, property, financial resources and earning capacity (Reasons 8A and 8B).

4. On 14 January 2020 the Child Support Agency made the decision to change the assessment (the original decision) so that:

   ·     for the period from 1 October 2019 to 31 December 2019 the annual rate of child support payable by [Ms A] is increased by $3,576; and

   ·     for the period from 1 January 2020 to 31 December 2020 the annual rate of child support payable by [Ms A] is increased by $3,576.

5. On 7 February 2020 Miss Chopra objected to this decision and on 11 February 2020 [Ms A] also objected.

6. On 23 April 2020 the Child Support Agency allowed both objections in part and made the decision to change the assessment (the objection decision) so that:

   ·     for the period from 1 July 2019 to 30 September 2019 the annual rate of child support otherwise payable by [Ms A] is increased by $3,341;

   ·     for the period from 1 October 2019 to 5 April 2020 the annual rate of child support otherwise payable by [Ms A] is increased by $1,860;

   ·     for the period from 6 April 2020 to 30 June 2020 there is no increase to the annual rate in recognition of the government’s free child care subsidy; and

   ·     for the period from 1 July 2020 to 31 December 2020 the annual rate of child support payable by [Ms A] will be increased by $1,860.

7. This was done to reflect the high cost of child care (Reason 6).

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

9. The issue which arises in this case is whether or not to grant Miss Chopra’s request for an extension of time to submit an application for review of a child support decision.

10. Part VIIA, Division 2 of the Act sets out the procedures for applying to the Tribunal for a review of an objection decision made by the Child Support Agency, as well as applying for an extension of time for such a review in the event the application is not made within the prescribed period.

11. Subsection 29(2) of the Administrative Appeals Tribunal Act 1975 establishes that an application for review must be made within 28 days of being served with notice of the decision.

12. If the 28-day period to apply for review has ended, then a written application for an extension of time can be made under section 91 of the Act. The Tribunal finds Miss Chopra was advised about the outcome of the objection decision by electronic means in a letter from the Child Support Agency dated 23 April 2020. Given Miss Chopra lodged her application more than 28 days after she was served with notice, the Tribunal is satisfied that an extension of time was required.

13. Under subsection 92(1) of the Act, the Tribunal must consider and grant or refuse an extension application. In doing so, the Tribunal considers the guiding principles for the exercise of 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 an extension of time should not be granted unless satisfied it was proper to do so, noting that, in general, applications or proceedings commenced outside of a prescribed time limit will not be considered.

14. A review of other relevant authorities establishes that when considering whether or not to allow an extension of time, the Tribunal should consider and balance a range of factors.  These factors are a guide and are not exhaustive, but 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 they will experience in providing evidence as a result of the delay;

    ·     any prejudice to the general public; and

    ·     fairness in granting an extension of time.

Reasons for the delay

1. The Tribunal finds that Miss Chopra’s application for an extension of time on 15 June 2020 in relation to the objection decision made on 23 April 2020, of which she was notified by electronic means, is approximately 25 days out of time.

2. In seeking an extension of time Miss Chopra cites a number of reasons for the delay in her application. Miss Chopra states that she was trying to understand the paperwork, calculations and reasoning behind the decision made by the Child Support Agency. Miss Chopra said a discussion with the Child Support Agency on 27 May 2020 about a separate child support matter revealed she did not have certain paperwork and she then requested a second copy of the objection decision. Miss Chopra adds that during a further conversation with the Child Support Agency on 13 June 2020 she advised that she did not agree with the objection decision but was reluctant to seek the assistance of the Tribunal as she could not cope with more paperwork. Miss Chopra also states she has been overwhelmed with working full-time, endeavouring to understand the objection decision and dealing with correspondence from [Ms A] all of which had taken a toll on her.

3. Miss Chopra was advised about the outcome of the objection decision by electronic means in a letter from the Child Support Agency dated 23 April 2020. While the Tribunal accepts that she may have had difficulty in understanding the objection decision Miss Chopra admits she did not contact the Child Support Agency until 27 May 2020 in relation to another child support matter.  The Tribunal notes in evidence from the Child Support Agency a transcript of that conversation on 27 May 2020 which indicates it was only then that Miss Chopra sought a further copy of the objection decision.  This was approximately four weeks after the objection decision had been finalised and sent to her.

4. The Tribunal notes in evidence from the Child Support Agency that during a conversation with the objections officer on 23 April 2020 Miss Chopra was given a detailed explanation of the objection decision.  She was also advised of her appeal rights to the Tribunal and the need to exercise those rights within 28 days of receiving the objection decision.

5. The Tribunal is of the view that if Miss Chopra needed any clarification around aspects of the objection decision, or required additional paperwork, it was incumbent upon her to do so in a timely fashion.

6. Miss Chopra has also referred to the significant demands on her time as a single parent working full-time and dealing with other issues. Miss Chopra is not unique in this regard with most parents having to balance numerous competing interests in their professional and private lives.  The Tribunal notes that Miss Chopra was able to pursue a non-agency payment decision and a second change of assessment application during this period, which indicates she had time to deal with child support matters she believed to be important.

7. The notification of the objection decision provided by the Child Support Agency dated 23 April 2020 outlines what to do if Miss Chopra disagreed with the decision.  This included asking the Tribunal to undertake a review “within 28 days from the date you receive this letter”.  The words “within 28 days” are in bold which, in the view of the Tribunal, gives a clear indication of the importance of this timeframe.

8. Miss Chopra was advised of her appeal rights.  The Tribunal finds Miss Chopra has not provided a reasonable explanation for the delay in applying for a review of the objection decision and that she rested on her rights.

Merits of the application

1. Miss Chopra is seeking review of an objection decision which increased the annual rate of child support payable by [Ms A] as her contribution towards child care costs for [Child 1]. 

2. In her application for review to the Tribunal Miss Chopra submits she disagrees with the objection decision and refers to evidence she provided to the Child Support Agency indicating [Ms A] would contribute to child care fees for [Child 1].  Miss Chopra argues the Child Support Agency only backdated the payment of child care to July 2019.  The Tribunal notes her application for a change of assessment requested any changes commence from 1 March 2018.

3. In making any determination to depart from an administrative assessment, the Child Support Agency must first find a ground for departure. These grounds are listed in the Assessment Act and in this case it was on the basis of the high costs of child care.

4. In considering the merits of Miss Chopra’s application, the Tribunal undertook a careful review of the information used by the Child Support Agency in reaching its decision in relation to child care costs.  A ground was not established in relation to the income, property, financial resources and earning capacity of [Ms A].  As Miss Chopra did not raise Reasons 8A and 8B in her application for review the Tribunal did not consider them further.

5. There are several threshold requirements that must be met in order to establish Reason 6 and these are set out in section 117 of the Assessment Act. They include that:

   ·     the child must be younger than 12 years of age at the start of the child support period;

   ·     the costs are incurred by a parent or non-parent carer;

   ·     the child care costs for the parent are only high if they total more than five per cent of that parent’s adjusted taxable income during a child support period; and

   ·     the costs of maintaining the child are significantly affected because of the high child care costs.

6. The Child Support Agency calculated the costs of child care for the relevant child support periods based on information provided by Miss Chopra.  These costs exceeded five per cent of Miss Chopra’s adjusted taxable income as applied in the assessment for the relevant child support periods.  As [Child 1] was younger than 12 years of age and the high costs of child care significantly affected the costs of maintaining him, Reason 6 was established. 

7. When considering a just and equitable determination the Child Support Agency made the decision that [Ms A] should contribute 24 per cent of the child care costs based on the cost percentage of each parent in the child support formula.

8. The Tribunal is of the view the Child Support Agency properly considered all the relevant information available at the time in accordance with the applicable law and reached a reasonable conclusion in relation to the costs of child care.

9. The primary issue raised by Miss Chopra is the backdating of the assessment. When making a change of assessment decision the law allows for a determination that is not more than 18 months prior to the date the change of assessment application was made (paragraph 98S(3B)(a) of the Assessment Act). In this case the earliest date would be 16 May 2018 being the start of the child support case. Generally, however, the date on which the change commences is the date on which the application is received.

10. Miss Chopra made her application for a change of assessment on 30 September 2019.  When considering the backdating of a decision, thought must be given to the position of both parents to ensure it is just and equitable to do so.

11. The Tribunal notes that in backdating the assessment to 1 July 2019 the objections officer did, in fact, take into account the circumstances of both parents.  This included the argument made by Miss Chopra that she was led to believe [Ms A] would contribute to child care costs but kept delaying any payments.  Consideration was also given to [Ms A] and the financial responsibility she has to children of another case.  The objections officer concluded, “I am not satisfied it would be fair or reasonable to any of [Ms A’s] children to create child support arrears from the beginning of this assessment”.

12. The Tribunal is satisfied, based on the evidence provided, that backdating the objection decision to 1 July 2019 is a fair and reasonable approach in the circumstances of this case.

13. The test of merit has alternatively been expressed as whether, were it to proceed, the application for review “would have good prospects of success” (Smith and Commissioner of Patents [2012] AATA 60 at [29]–[31]).

14. Based on the evidence available, the Tribunal finds Miss Chopra’s application for review would not have good prospects of success.  The Tribunal therefore considers Miss Chopra’s application has little merit.

Potential prejudice to [Ms A] and the wider public

1. [Ms A] should ordinarily be able to rely on the child support assessment once the time for objection has passed.  On the other hand Miss Chopra is approximately 25 days late in making her application.  The Tribunal does not consider that [Ms A] would be significantly disadvantaged if an extension of time to lodge an objection was granted.

2. Time limits for the review of administrative decisions should be observed as strictly as possible in order to assist the proper administration of government agencies.  There is also a public expectation that there be a degree of certainty in relation to time limits, however, the law also allows for extensions of time.  In this case the Tribunal believes there would be little prejudice to the wider public if an extension of time to lodge an objection was granted.

Fairness in granting an extension of time as between Miss Chopra and other persons in similar positions

1. The Child Support Agency notifies parties that they can seek a review of decisions with the Tribunal and they have 28 days within which to submit a request for such a review.  Most people comply within the 28-day timeframe.  It is clear the statutory time limit is to be enforced unless there are acceptable reasons for the delay.  The Tribunal is not satisfied Miss Chopra’s circumstances are sufficiently different to that of other applicants in a similar position that an extension of time is warranted.  The Tribunal finds that it would be unfair to others to grant Miss Chopra an extension of time in view of the statutory timeframe which applies.

CONCLUSION

1. Miss Chopra has not provided a satisfactory explanation for the delay in applying for a review of the objection decision. The Tribunal could also find little merit to her application based on the evidence available. This weighs heavily against the granting of an extension of time. There would be limited prejudice to [Ms A] should an extension of time be granted, however, the Tribunal is of the view that it would be unfair to grant Miss Chopra an extension of time given her circumstances are not sufficiently different to that of other applicants in a similar position.

2. Having carefully considered the various factors which it must take into account, the Tribunal finds it would not be proper to grant an extension of time to seek review of the objection decision made on 23 April 2020. Accordingly, the extension application is refused.