Confidential and Principal Member, Social Security Appeals Tribunal and Confidential (Party Joined)
[2011] AATA 423
•21 June 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 423
ADMINISTRATIVE APPEALS TRIBUNAL )
) N° 2011/0044
GENERAL ADMINISTRATIVE DIVISION ) Re
CONFIDENTIAL
Applicant
And
PRINCIPAL MEMBER, SOCIAL SECURITY APPEALS TRIBUNAL
Respondent
And CONFIDENTIAL
Party Joined
DECISION
Tribunal Mr C. Ermert, Member Date21 June 2011
PlaceMelbourne
DecisionThe Tribunal affirms the decision under review.
…………[signed]..……….
Member
It is noted that publication of this decision is approved by the Administrative Appeals Tribunal pursuant to s 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
CHILD SUPPORT – extension of time – explanation for delay – actions taken by applicant – prejudice to the parties – merits of substantive application – fairness – not proper to grant extension – decision affirmed
Administrative Appeals Tribunal Act 1975 s 37
Child Support (Registration and Collection) Act 1998 s 92(7)
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
REASONS FOR DECISION
21 June 2011 Mr C. Ermert, Member
INTRODUCTION
1. The applicant and joined party have two children. On 3 December 2007 the Child Support Agency (the Agency) recorded that the joined party had sole care of the children and the applicant had no care. The applicant disputed the levels of care. On 21 April 2008 the Agency set the applicant’s child support payment at $10,400 per year for the period between 31 March 2008 and 31 December 2009. On 15 May 2008 the Agency decided to record the levels of care as 325 nights per year to the joined party and 40 nights per year to the applicant. The applicant objected to the level of care decision.
2. On 16 July 2008 the Agency disallowed the applicant’s objection to the level of care decision and sent letters outlining their appeal rights to both parties. On 11 September 2009 the applicant lodged an application for a review of the Agency’s decision with an application for an extension of time to lodge the review application with the Social Security Appeals Tribunal (SSAT). On 24 December 2009 the SSAT refused the application for an extension of time (the EOT decision). This matter is an application for a review of the EOT decision.
THE HEARING
3. The applicant appeared in person at the hearing and gave evidence under oath. The joined party appeared by telephone and gave evidence under affirmation. Prior to the hearing, the joined party submitted a letter dated 6 June 2011 with 15 pages of attachments, 17 pages in all. The applicant had not had an opportunity to examine the documents. The Tribunal took the documents into evidence on the basis that the applicant could take time to examine them during the hearing as required. The Tribunal also had before it the documents provided by the respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents).
4. The parties had also been provided with a copy of a decision of the SSAT dated 20 October 2010 (the income decision) which considered an objection to the levels of income of the parties on which to base the level of child support payable by the applicant.
THE ISSUE
5. The issue before this Tribunal is whether the applicant should be granted an extension of time to make admissible his application for a review of the Agency’s level of care decision before the SSAT.
THE EVIDENCE
6. In his evidence the applicant said that he was unable to appeal the level of care decision. He referred to the reasons for the EOT decision which included, at page 22 of the T documents:
…the main problem for [the applicant] is the fact that a change of assessment decision was made on 21 April 2008 … for the period 31 March 2008 to 31 December 2009 – while this remains in place, any change to the level of care he had in this period cannot override the amount of child support that he has been set to pay by the COA decision…
7. The applicant referred to the income decision in which the SSAT stated in paragraph 102:
In the event that there is a change in the level of care, there may be a consequent change in the rate of child support payable.
The applicant contended that this finding opened the door for a reconsideration of the level of care decision.
8. The applicant referred to his affidavit of 5 May 2008, a statement by JJ dated 24 April 2008, undated statements by PH and JC and a statement dated 5 May 2008 by RH (T documents pages 9-13). He contended that these statements provide evidence of the pattern of his level of care prior to the period covered by the Agency’s level of care decisions. He stated that he had care of the children nearly every weekend of the year, amounting to 75 to 80 nights per year. In answer to a question, the applicant said that there was a short period prior to 2000 when the younger child did not stay with him due to the child’s disabilities.
9. When asked the reasons for his delay in seeking a review of the decision in question by this Tribunal, the applicant said that he did not know that he could seek a review until he received advice from a lawyer. He also said that he did not receive the letter from the Agency notifying him of the decision until near the end of the 28 day period, that he did not know that he had appeal rights, that he did not realise that he had 28 days in which to seek review, and that he did not have time to respond. The applicant said that he could not recall whether he had read the letter, and that he was under stress at the time. When asked why he did not make a telephone enquiry of the Agency he said that he may well have made a call but he could not recall it.
10. The joined party said that her evidence was essentially contained in the submitted documents. She said that her record of the level of child care she provided was contained in the copies of her diary entries. She said that she had given copies of the diaries to the Agency, attached to a Statutory Declaration made at the Frankston Police Station on 28 April 2008.
11. The applicant vehemently objected to the Statutory Declaration being taken into evidence, as the copy clearly showed signs of deletions. The joined party agreed that she had whited out her Agency file number, which she did not want to disclose to the applicant. The Tribunal considered the objection but decided that the Statutory Declaration did not taint the copies of the diary entries. The Tribunal decided to accept the copies of the diary entries as presented by the joined party.
12. The joined party agreed that the applicant had custody of the children for 16 nights in late 2007, while she was on a holiday.
SUBMISSIONS
13. The applicant submitted that he had produced an affidavit and four third party statements as evidence that he had custody of the children nearly every weekend in the 10 years prior to the level of care decision. He contended that this evidence indicated that he provided a higher level of support than normal. He submitted that the joined party’s oral evidence was not credible. He drew the Tribunal’s attention to paragraph 65 in the second SSAT decision where the SSAT said:
[The joined party’s] statements on this issue are clearly inconsistent and the Tribunal was not satisfied as to [her] credibility on the issue.
The applicant also referred to paragraph 66 of that same decision in which the SSAT said Again, the Tribunal did not find this evidence convincing.
14. The applicant again voiced his objection over the adulterated Statutory Declaration. He repeated his contention that he had the children nearly every weekend. Referring to the delay in his appeal, he stated that he was unable to appeal because of the findings in the first SSAT decision. He believed that he was not legally able to appeal. He said that he tried to appeal prior to November 2009 and that the first opportunity was occasioned by advice from his lawyer, although he could not remember when he received that advice.
15. The joined party submitted the decision in question was correct. She contended that extensions of time applications are devices to delay the child support payments. She contended that the 28-day time limit cannot just be ignored and that the applicant had had enough time to apply for a review of the decision, even by telephone. She re-iterated that the copies of the diary entries had been supplied to the Agency. She contended that the Tribunal should favour her evidence of diary entries over the statements submitted by the applicant, all of which related to a time before the period in question.
CONSIDERATION
16. The relevant legislation is contained in the Child Support (Registration and Collection) Act 1998 (the Act). Section 92(7) provides for a party to apply to this Tribunal when an extension of time application has been refused by the SSAT Principal Member but does not set out the basis on which this Tribunal should exercise its discretion.
17. Guidance for deciding extension of time applications was provided by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9. His Honour said that the following factors should be considered when deciding whether to grant an extension of time:
(a) an acceptable explanation for the delay;
(b) actions taken by the applicant;
(c) any prejudice to the parties;
(d) public considerations;
(e) the merits of the substantive application; and
(f)fairness as between the applicants and other persons in a like position.
explanation for the delay
18. The applicant gave evidence that he received the notification of the decision by the Agency but he had insufficient time to submit an appeal. He also said that he could not recall whether he had read the notification. These statements conflict. The applicant must have read and understood the notification to have reached a conclusion that he had insufficient time to respond. When asked why he did not make a telephone enquiry he said that he could not recall, but he said he may well have made a call.
19. The applicant also contended that he did not know he could appeal the decision until he was so advised by his lawyer. The notification states:
If you do not agree with the CSA’s decision, you have 28 days to ask the SSAT to review the decision. Please refer to … for information on how to apply to the SSAT.
In his evidence, the applicant stated that, due to his experience in the police force, he was familiar with reading legislation. The Tribunal does not accept that a person of the applicant’s background could have misunderstood the plain statement that he could ask for a review of the decision if he did not agree with it.
20. The Tribunal is satisfied that the applicant received the notification of the Agency’s decision and that he was aware of the time limit for an application for a review of the decision. It is not in dispute that he did not in fact submit any form of written request for a review within the 28-day time limit. The first request for a review was not submitted until 11 September 2009, over 12 months outside the time limit.
21. In the absence of evidence, other than his inconclusive may well have statement, the Tribunal is not satisfied that the applicant attempted to make a telephone enquiry within the 28-day time limit, or at any other time before his written application.
22. The applicant submitted the request for review over 12 months after the 28-day time limit. The Tribunal is not satisfied that there was a reasonable explanation for that delay.
actions taken by the applicant
23. The applicant provided no evidence of following up the decision or pursuing the issue with the Agency until advised by his lawyer. Even that advice was not initiated by an enquiry by the applicant about the decision in question. The applicant sought advice from his lawyer in regard to action being taken against him for the non-payment of his child support obligations. The advice to appeal the level of care decision apparently arose from the discussions on the non-payment issue.
24. There is no evidence that the applicant did anything other than rest on his rights. The absence of any actions or enquiries about the decision prior to the incidental discussions with his lawyer indicates to the Tribunal that the applicant accepted the decision for over 12 months.
prejudice to the parties
25. The judgement in Hunter Valley Developments refers to prejudice to the applicant by a refusal of an extension, and prejudice suffered by defendant or the Government if an application is granted.
26. In this case, a decision to grant an extension of time is likely to cause detriment to the joined party. In her evidence she stated that to date she has not received any child support payments from the applicant. The grant of an extension of time to appeal the decision will introduce an additional delay in the finalisation of the matter and hence a further delay before the joined party might receive payments due to her.
27. There is no apparent detriment to the SSAT or the Government attributable to an extension of time. An extension of time without good reason would, however, be detrimental to the prima-facie rule that proceedings outside the prescribed time limits will not be entertained. An extension would also be detrimental to the general need for finality in disputes.
28. The refusal of an extension of time may prejudice the applicant, depending on the merits of his case in the substantive issue. As he has not made any child support payments he suffers no detriment in the form of possible overpayments that might be recoverable.
public considerations
29. The judgement in Hunter Valley Developments refers to delays which may unsettle other people or established practices. In this case, an extension of time would unsettle the joined party, however it is not possible to specifically identify other parties who may be affected or unsettled. As argued above, however, an extension of time without good reason would unsettle public’s understanding of the prima-facie rule and the general need for finality in disputes.
merits of the substantive application
30. The applicant’s evidence to the Tribunal was unchanged from that provided for the Agency’s consideration of his initial objection to the level of care decision, namely his affidavit dated 5 May 2008 and statements from JJ, PH, RH and JC (T documents pages 9-13)
31. In its Details of Objection Decision dated 16 July 2008 the Agency said:
On 12 May 2008 [the applicant] lodged evidence from 4 third parties however he did not complete the calendar of nights for the first twelve months of the Child Support Period starting from 03/12/2007 sent to him by CSA.
... I enquired if he was able to furnish information from disinterested third parties. I also stated that although the testimonials indicate some level of care they do not necessarily establish he has regular care of more than 52 nights.
... There is no evidence provided by [the applicant] to indicate that he has met the threshold for regular care for [the children].
32. In its EOT decision the SSAT said:
…the substantive merits of [the applicant’s] application appealing against the objection decision are low. Firstly there is a lack of evidence provided by both parties, as neither appear to have kept diaries or calendars for 2007-2009 regarding the care of [the children].
…the statements relied upon by [the applicant] do give some weight to his claims; however, several are expressed in general terms and/or refer to periods in 2007 prior to the start date of liability and are therefore of limited relevance to the level of care decision made by the objections officer on 16 July 2008...
33. Since those decisions, the joined party has provided copies of diary entries for the period in question. On the other hand, in spite of the Agency’s request to him to complete a calendar of nights of care, and the opportunities afforded by the appeals to the SSAT and this Tribunal, the applicant has provided no additional evidence to that already found to be insufficient and not relevant to the period in question.
34. The Tribunal attaches some weight to the copies of the diary entries as contemporaneous evidence of the joined party’s care of the children. In contrast, and considering the lack of further and better evidence from the applicant, the Tribunal is not persuaded that the applicant had care of the children in excess of that recorded by the joined party. Accordingly, the Tribunal is not satisfied that the applicant’s case on the substantive issue has sufficient merit to warrant the grant of an extension of time.
fairness
35. In weighing the fairness of an extension of time, the Tribunal weighed the following considerations. The applicant received a notice advising him of the 28-day limit for the request of a review of the level of care decision. He chose not to make that request and took no action until advised to do so as a result of legal advice on another issue. His request for review was more than 12 months outside the time allowed. He has made no child support payments. An extension of time would further delay the making of payments to the joined party. Despite opportunities to do so, the applicant has provided no further evidence in support of his case. In contrast, the joined party has provided copies of diary entries documenting her care of the children.
36. The Tribunal is satisfied that it would not be fair and equitable to grant the extension of time. Indeed an extension of time would prejudice the joined party, and would be contrary to the general rule that prescribed periods are not to be ignored.
conclusion
37. After considering each of the issues determined by Wilcox J in Hunter Valley Developments, the Tribunal finds that it there is no good reason to grant the applicant an extension of time to request a review of the SSAT’s EOT decision. The Tribunal is not satisfied that it would be proper to grant the extension and finds accordingly. Therefore, the Tribunal refuses the applicant’s request for an extension of time.
DECISION
38. The Tribunal affirms the decision under review.
I certify that the thirty-eight [38] preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr C. Ermert, MemberSigned:..........................[signed]..........................................
Associate Grace HorzitskiDate of Hearing 8 June 2011
Date of Decision 21 June 2011
Advocate for the Applicant Self-representedAdvocate for the Party Joined Self-represented
No appearance by the Respondent
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