Cruise and Child Support Registrar (Child support)

[2019] AATA 2534

Cruise and Child Support Registrar (Child support) [2019] AATA 2534 (25 June 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC016215

APPLICANT:  Mr Cruise

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member K Buxton

DECISION DATE:  25 June 2019

APPLICATION

An extension application made on 15 April 2019 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar notified on 25 February 2019 despite the period for applying for review having ended.

DECISION

The application for an extension of time within which to seek AAT first review is refused.

CATCHWORDS

CHILD SUPPORT – application for extension of time to appeal – substantive matter is refusal to grant an extension of time to object - no satisfactory explanation for the delay - little 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. Ms Cruise and Mr Cruise are the parents of three children in relation to whom Mr Cruise has been assessed by the Child Support Agency (CSA) to pay child support to Ms Cruise.

2. Mr Cruise’s income for the purpose of the child support assessment had been determined by a decision of the CSA made on 18 October 2017. In that decision his adjusted taxable income was varied to $168,000 per annum for the period 1 June 2017 to 30 November 2018, and the rates of child support were increased to reflect a contribution to private school fees.  At that time Mr Cruise was employed and the CSA delegate determined that his income was to be set at that level for that period to reflect his income from employment.

3. Mr Cruise resigned from his employment on 12 February 2018 and on 4 March 2018 he applied for a further departure from the administrative assessment of child support. On 9 May 2018 that application was refused. On 18 February 2019 Mr Cruise lodged an objection to that decision and, as he was outside the statutory 28-day time limit within which to object, he applied for an extension of time. On 25 February 2019 his application for an extension of time within which to object was refused. The decision was transmitted to Mr Cruise electronically. On 28 March 2019, Mr Cruise applied to this tribunal for review of the objection decision and, as he was outside the statutory 28-day time limit within which to apply for review, he applied for an extension of time by written application lodged on 15 April 2019.

4. Mr Cruise requires a short extension of time, of a few days, in order that his review application may proceed. If granted, he would require a further substantial extension of time within which to object to the decision of the delegate the effect of which, at the time of consideration of this matter by the tribunal, was to leave in place the decision about Mr Cruise’s income which has now been applied to the child support assessment for almost two years.

5. In considering Mr Cruise’s application I have had regard to the statement and documents produced by the CSA pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975 (Exhibit 1), to the sworn evidence of Mr Cruise given to the tribunal by telephone during a hearing which took place on 25 June 2019 and to the submissions of his representative, [Mr A] from [a company].

CONSIDERATION

1. Section 29 of the Administrative Appeals Tribunal Act1975 (the Act) provides that an application for AAT first review must be made within 28 days of a party being served with a document setting out the terms of the relevant decision. Mr Cruise was provided with the objection decision and reasons electronically on 25 February 2019. Although he stated that he did not open the document until 1 March 2019 Mr Cruise is deemed to have been notified of the decision on 25 February 2019 and therefore had until 25 March 2019 to seek review.

2. The legislation dealing with applications made outside that time frame is contained in the Act. The factors relevant in determining whether time should be extended are not set out in the legislation. Section 91 of the Act simply provides that an application for an extension of time may be made and that it must state the reasons why the party failed to apply for review within the stipulated 28 days.

3. The time limit for review will be enforced by the tribunal unless acceptable reasons exist to depart from it. In determining whether acceptable reasons exist to depart from a time limit the guiding principles are usefully set out in Hunter Valley Developments v Cohen [1984] 3 FCR 344, per Wilcox J at [348]–[349]:

   1. Although this section does not, in terms, place an onus of proof upon an Applicant for extension, an application has to be made. Special circumstances need not be shown but the Court will not grant the application unless positively satisfied that it is proper to do so. The “prescribed period” of twenty-eight days is not to be ignored. It is the prima facie rule that proceedings commenced outside that period will not be entertained. It is a pre-condition to the exercise of discretion in his favour that the application for extension show “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time.

   2. Action taken by the applicant, other than by making an application for review under the Act, is relevant consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not “rested on his rights”) and a case where the decision-maker was allowed to believe that the matter was finally concluded. The reasons for this distinction are not only the “need for finality in disputes” but also the “fading from memory” problem…

   3. Any prejudice to the Respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension.

   4. However the mere absence of prejudice is not enough to justify the grant an extension. In this context, public considerations often intrude. A delay which may result, if the application is successful, in the unsettling of people or established practices is likely to prove fatal to the application.

   5. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted.

   6. Considerations of fairness as between the Applicants and other persons otherwise in a like position are relevant to the manner of exercise of the Court’s discretion.

4. Mr Cruise stated during the hearing that he had understood that he had 28 days from the time he opened and read the decision to seek review and that he was working towards that timetable. He stated that he was spending time on holidays with the children during the 28-day period and wished to deal with the matter when the children were no longer in his care. [Mr A] stated that the CSA had expressed the view to him that time began to run from when Mr Cruise opened and read the decision. Even if that view had been expressed to [Mr A], it is somewhat surprising that it would have been accepted as correct in circumstances where an expert child support advocate could reasonably be expected to be aware of the time frames for applying to the AAT for review of a decision of the CSA. Further, given the delays that had already occurred it is unclear why Mr Cruise would not simply apply to the AAT within clear margins of what he perceived to be the statutory time frame. Mr Cruise has explained why he did not lodge his application for review within 28 days, but his explanation does not take into account the seriousness of the statutory timeframe or provide a justification for extending that time frame.

5. If the tribunal were to grant an extension of time to review the decision of the CSA made on 25 February 2019, refusing an extension of time within which to object to the 9 May 2018 decision, it would be necessary to consider the explanation for the delay lodging that objection. Mr Cruise stated that the underlying decision was incorrect because he did not voluntarily leave his employment in February 2018 but, rather, left for health reasons. Mr Cruise pointed to the evidence available to the delegate that he had medical appointments, , and that he was suffering from [a medical condition] and necessitated his resignation. Mr Cruise stated that, after he received the decision from the delegate he was in a “dark place”. He did not know his rights and was dissuaded from pursuing those rights by the decision maker, who told him that things would only get worse for him if he sought review. Mr Cruise stated that it was only when his brother spent time with him in August that he realised he had to seek review of the decision.

6. Mr Cruise’s explanation for the delay between August 2018 and February 2019 is unsatisfactory. At that time Mr Cruise was establishing a new business and working in it. He had consulted lawyers about his rights surrounding the ending of his former employment and [a professional] (not [Mr A]) about objecting to the decision. Mr Cruise was able to function in those regards, and it is difficult to see why he could not also have lodged an objection with the CSA directly at the same time. Mr Cruise waited until Christmas to terminate the services of [a professional] and did not retain [Mr A] until February 2019, shortly after which the objection was lodged and extension of time sought. Mr Cruise also stated that he was gathering evidence about his employment and his health prior to objecting. However, Mr Cruise did not explain why that information had not been available many months earlier, or why it was necessary to wait for the information prior to initiating his objection.

7. The earlier departure decision, made on 18 October 2017, in which Mr Cruise’s adjusted taxable income was varied to $168,000, was based on his actual income at that time, with allowances for deductions. Mr Cruise had been earning that income, which was significantly higher than that used in the administrative assessment, from 23 January 2017. However, the delegate chose to apply the higher income only from 1 June 2017 through to 30 November 2011.

8. Therefore, there was a period of over four months, from 23 January 2017 to 31 May 2017, when Mr Cruise was earning significantly higher income than that used in the assessment. As a result of the decision on 9 May 2018, there is a period of just over nine months when Mr Cruise was assessed on an adjusted taxable income of $168,000 after he had resigned on 12 February 2018 until 30 November 2018. Mr Cruise received a lump sum comprised of annual leave and sick pay in his final pay. He also worked in his own business during that period. Taking into account all of those factors together it does not appear that, over time, Mr Cruise has been significantly over-assessed in terms of income. In any event, Mr Cruise seeks to object to a decision well after the last date on which that decision had any impact on the child support assessment. From 1 December 2018 the administrative assessment of child support used the parents’ most recently available taxable incomes. Any objection could deal only with the child support assessment for that past period which has long now been settled. Mr Cruise has not demonstrated a sufficiently strong case on the merits in his application and the tribunal is not satisfied he is likely to achieve a better outcome on objection, were that objection permitted to proceed.

9. Ms Cruise is entitled to assume that decisions not reviewed within the statutory time frame are settled and finalised. Whilst there is no evidence of particular prejudice to Ms Cruise, the proposition that she be involved in a review of a decision which will affect the calculation of child support for an entirely past period is undesirable and unfair. Further, Mr Cruise has available to him the avenue of pursuing an objection to the further departure application relating to his income, financial circumstances and earning capacity from 1 January 2019. As at the date of the hearing a decision had been made in this departure application. Although Mr Cruise stated that he disagreed with that decision he had not objected to it within the 28-day time frame and would require an extension of time within which to do so. These are all factors which militate against the granting of an extension of time.

10. In conclusion, the prescribed period of 28 days within which to file an application is to be enforced, not ignored, unless there are good reasons to extend time. Here, the explanation for delay is inadequate, the merits do not justify an extension and fairness is best achieved by refusing to extend time to review the decision of the CSA made to the tribunal out of time to seek to extend by many months the time within which to object to a decision of the CSA. The extension application is therefore refused.

DECISION

The application for an extension of time within which to seek AAT first review is refused.