Dallimore and Child Support Registrar and Anor

[2004] AATA 219

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 219

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/2021

GENERAL ADMINISTRATIVE  DIVISION		)
Re		EMMA DALLIMORE

Applicant

And CHILD SUPPORT REGISTRAR

Respondent

And                   MATTHEW CLEMENT LEWIS

Joined Party

DECISION

Tribunal The Hon R N J Purvis Q.C. Deputy President

Date17 February 2004

PlaceSydney

Decision

For the reasons given orally at the conclusion of this hearing, the
Tribunal decides that:

1.      The reviewable decision to grant Mr Lewis’ application for an extension of time, dated 10 December 2003, is affirmed.

2.      The application for a stay is dismissed.

[Sgd] The Hon R N J Purvis Q.C
  Deputy President

CATCHWORDS

CHILD SUPPORT ASSESSMENT – application to object relevant consideration in granting extension of time - decision affirmed

LEGISLATION

Child Support (Assessment) Act 1989

CASE

Agar v Australia Post [2000] AATA 1074

REASONS FOR DECISION

17 February 2004              The Hon R N J Purvis Q.C, Deputy President  

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. The Respondent pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. 

3.        An edited version of the transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

The Hon R N J Purvis Q.C., Deputy President

Signed:         
          ....................................................................................……………………………….

Associate

Date of Hearing  17 February 2004

Date of Decision  17 February 2004

Representative for Applicant      self represented

Solicitor for Respondent              Ms Prem Aleema, Senior Advisor

DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N3/2021
By  HON R. PURVIS QC, Deputy President
DALLIMORE and CHILD SUPPORT AGENCY
SYDNEY, TUESDAY, 17 FEBRUARY 2004

THE D.PRESIDENT:   There are presently before the Tribunal two applications. They are referred to in the Tribunal's direction of 9 February 2004.  The first of the applications in point of time is that of 20 December 2003 in which Ms Dallimore appeals to the Tribunal against the respondent's decision to grant Mr Lewis an extension of time to lodge an objection to the Child Support Registrar's decision of 10 December 2003.

The second application is one referable to a stay.  If it should transpire that the Tribunal is minded to affirm the decision under review then a stay is not warranted, so I shall consider the application referable to the extension of time before moving on to the stay application.

I shall not in these reasons repeat many of the matters set forth by the respondent in its Statement of Facts and Contentions (Exhibit 1).  Exhibit 1 will, as to the paragraphs to which I am about to make reference, form a part of this decision in that the Tribunal agrees with the recitation of matters set forth in those paragraphs. 

The factual situation that bears upon the application is as set forth in paragraphs 1 to 13 of exhibit 1.  Briefly, the facts may be summarised in this way.  There is in existence a child support assessment made pursuant to the Child Support Assessment Act 1999.  This in favour of Ms Dallimore and in aid of supporting the children of Ms Dallimore and Mr Lewis.  In July last, Mr Lewis applied to the respondent for a change to be made in the support assessment.  Whilst the arguments advanced by Mr Lewis in support of the change are not fully before the Tribunal suffice to say, as appears from the decision of the respondent, that Mr Lewis was maintaining an inability to pay the child support as it was then assessed, this on account of absence from work attributable to his alleged poor health as well as the vagaries of the industry where he works, that is, the sale of motor vehicles. He is a car salesman.

In October 2003 a decision was made by an officer of the respondent which had the effect of varying the earlier assessment.  A copy of the decision was forwarded to Ms Dallimore and Mr Lewis in October 2003 and between the date of the forwarding of the decision and 6 November 2003 discussions took place between Mr Lewis and various officers of the respondent, Mr Lewis orally maintaining a number of objections to the assessment that had issued.  The objections related again to his inability to fund the amounts due under the assessments, this on account of his state of health, his absence from work and the intermittent nature of the income that he had received and that he was to receive in the future.  He maintained that he needed to collate material, medical reports and income records, to present to the respondent if an objection made formally was to be favourably received. 

I interrupt a recitation of the facts here to note Ms Dallimore's observation that, be it Mr Lewis is engaged in the occupation of a car salesman, be it that his income varies from time to time by reason of the nature of his occupation as well as the state of his health, it might be more appropriate for his position to be looked at on a year end base rather than during the currency of a year. No doubt this is a matter that will be taken into consideration by the respondent if the respondent is given the opportunity of again looking at the assessment and, of course, when so examined the situation might move either way, that is, in favour of Ms Dallimore or in favour of Mr Lewis but that is not a condition relevant to the present application.

Further in relation to the factual situation, there was communication between Mr Lewis and the respondent Registrar during October and, indeed, through November and December. A letter of 26 October 2003 (Exhibit 2) is said by Mr Lewis to have been forwarded by him by post to the respondent. The letter does not appear in the T documents. The respondent says, through Ms Alima who appears on behalf of the Registrar, that it did not receive this letter. Be that as it may, as Mr Brown who appears on behalf of Mr Lewis submits, quite rightly, it does, nevertheless, evidence action by Mr Lewis within the time frame for an objection to be lodged showing his intent to object to the assessment.

The relevant principles to be applied in an application such as the present, and the factors that are to be considered in an application for extension of time have been considered by this Tribunal and the Federal Court on a number of occasions and more recently by myself in Agar v Australia Post [2000] AATA 1074. They are detailed in paragraphs 1 to 9 of exhibit 1 under the heading, Application for Review of Registrar's Decision. So far as they are relevant they are incorporated into and are to form a part of these reasons for decision.

It is of interest to note however that in section 98XD of the Child Support Assessment Act, the section applicable to applications for extension of time, there is only one matter stated as relevant and that is that the application must state the reasons for the person's failure to lodge the objection within the period required by this part.  No other prerequisite is set forth in the Act.  However, the Tribunal is minded to agree with the submissions made by Ms Alima and endorsed by Mr Brown that an application for extension appropriately should extend beyond a consideration of the mere reasons for the delay and embrace the various other matters referred to in the relevant authorities.

Turning then to the "reasons", those "matters", and bearing in mind the position taken by Ms Dallimore, the Tribunal would make the following observations.  It is true to say that time constraints are inserted in statutes for good reason.  First, so that matters referable to objections to decisions should be dealt with expeditiously so that persons such as Ms Dallimore and Mr Lewis should know where they stand as soon as possible and as in a case like the present where Ms Dallimore has the responsibility of caring for the children in respect of whom the assessments have been made and for their support, that she should know what funds she will have available in aid of their support. 

She is the one who has to budget expenditure, she is the one who has the responsibility of ensuring that in a physical sense they are properly cared for and cared for with the support provided by their father and, to some extent, maybe by their mother but in the present sense primarily by their father.  She needs to know how much she is to receive. Likewise, but in another sense Mr Lewis needs to know how much he will have to pay.  He has, as I have mentioned, difficulties in deriving his income measured by the nature of his occupation as well as his alleged state of health. No doubt he has to carefully budget the calls upon his available income. So, there is a need for there to be certainty as to any decision and this is one reason why time constraints are inserted in statutes for objections or appeals being lodged. But that is not the end of the matter. 

When considering whether one should go outside a time constraint, it is necessary to look, at the nature of the application that is being opposed, the nature of the objection that is being made, not to make a determination as to whether the objection will or will not succeed but rather to see if the objection is founded upon arguable matters and whether or not there is a reasonable chance that the objection could succeed. In other words, that there is an arguable case to be put by the applicant.  If there is no sign or no indication of an arguable case then it would be a waste of all of the resources that will be applied to a consideration of an objection at some time in the future.

Consideration is also to be given to whether a person has, as Ms Alima puts it and as the authorities state, rested on his or her rights, that is, just stood aside and let time pass without showing an interest in and enthusiasm for the objection that is to be made. 

Again, consideration is to be given to the effect that a decision to allow an objection to appeal would have upon each of the parties.  Are they going to be prejudiced?  Are they going to be adversely affected by time being granted for an objection to be lodged?  Not as to the eventual decision that might be made, that is, for another time and another place, but rather whether by granting the extension of time Ms Dallimore will be hurt, prejudiced, harmed and whether Mr Lewis would be hurt, prejudiced, harmed if an extension of time is not granted.

It is fair to say that in most cases that each party could say, Yes, I will be adversely affected, and then it is a matter of weighing the adverse effect upon each party and seeing perhaps which is the more adversely affected, which of the two is the more prejudiced or harmed.  It is fair to say, so far as Ms Dallimore is concerned, that she has an assessment at the present time in her favour.  She would say, I want to keep the assessment that I now have.  I am satisfied with it.  It gives me money in aid of supporting the children.  I don't want to have to go through an objection process.  I don't want to have to be concerned with the Registrar reconsidering the amount that should be paid.  I'm happy as things are.  If a decision is then made against her, she would say, Well, I have to go through this inconvenience.  I have to go through this uncertainty. 

On the other hand, Mr Lewis puts up a case whereby he says that if an extension of time is not granted to him, he will be deprived of his opportunity to object and as Mr Brown rightly submits if he does not object to the assessment then his right,which otherwise would exist, of taking the matter further, taking the matter to the Family Court would be lost. He would be deprived of seeking to have the present assessment looked at anew.  It is true as Ms Alima says in exhibit 1 that Mr Lewis can perhaps file a further application for a variation of the assessment but I don't think this is really the point in the present case. Time would pass and the present assessment may well then remain on foot at least up until the time of further consideration. So, there is the matter then of weighing the prejudice to Ms Dallimore against the prejudice to Mr Lewis.

There is then to be considered the explanation provided by Mr Lewis for the delay for not complying with the time restraints contained in the legislation.  A lot of the explanation for the delay appears in the T documents, appears in computer file notes made by the respondent as to telephone conversations with Mr Lewis. They are to the effect that he intended to object but he wanted to collate medical evidence and other documentary material before filing his formal document.  This is evidenced by exhibit 2 as well as the objection that was, in fact, forwarded under date 7 November but not received until some days later.

Ms Dallimore says that she agrees with the assessment.  She says that she wants the disputation between she and Mr Lewis as to the quantum of child support put at an end. She wants certainty, as no doubt, does Mr Lewis.  She wants to know where she stands, so no doubt, does Mr Lewis but as I have earlier indicated, she is the one who has the responsibility for the day to day practical care of the children and her attitude in this regard is not without some merit.

She says that she believes that Mr Lewis has had ample time to lodge his objection and further she takes issue with his statements as to his health and as to his income.  As I have earlier mentioned, she also submits that the assessment should be made on a year end basis when the full situation is known and not during the currency of a year.  She also makes mention of her own state of health and the effect that the continuing disputation as to quantum of child support is having upon her.  These matters are relevant to a decision that the Tribunal is to make.

On behalf of Mr Lewis, Mr Brown supports the submissions made by Ms Alima in exhibit 1 and more particularly as they appear in paragraphs 3 to 9 under the heading, Contentions.  In addition, he says that Mr Lewis will suffer the hardship that I have earlier mentioned, that is, the loss of opportunity to have the assessment reviewed, the loss of opportunity to apply to the Family Court of Australia for departure.  These are significant matters so far as hardship or prejudice is concerned.

He also says that the explanation given by Mr Lewis for delay of only a few days is adequate for the purposes of the present application.   The delay was minimal and the fact that the formal objection was not received until some few days after the statutory period expired should not weigh against Mr Lewis having in mind the conversations he had had with officers of the Registrar and exhibit 2.  He further submits that Mr Lewis did not rest on his rights but maintained his objection through the discussions he had had with officers of the Registrar as well as the material that he forwarded to the Registrar.

The merits of the objection, as I say, are not to be looked at in a substantive way at the present time but are to be looked at in the light of assessing whether there is shown to be an objection having merit in the sense of warranting an officer of the Registrar reconsidering the earlier assessment.  As I have said it may be that no change will be made and that the assessment as it presently stands will be maintained.  It may be that it will be reduced.  That is a matter for the Registrar or an officer of the Registrar, not for this Tribunal.

I have already mentioned during the currency of the hearing of and in this regard Mr Brown has quite properly drawn the Tribunal's attention to, a statement contained in T5, that is, the notice of decision, which on its face certainly would warrant some reconsideration, namely, to the period for which the support income was reduced.  This may be a clerical error, it may not be.  It may be that an error of substance was made but it certainly, on its face, bears further consideration. 

I have already made mention of the prejudice that would be experienced by Ms Dallimore. I am mindful of the matters that were set forth by Ms Dallimore in the submissions that she made as they appear in the T documents two submissions both of 21 December 2003 and I have taken into consideration the matters that she raises in those written submissions.  There may be merit in some of the matters that she submits referable to quantum of income and other relevant considerations but as I say they are a matter for the Registrar to consider in due course.

I am satisfied that having considered all of the matters that are relevant to an application for extension of time, the matters referred to in exhibit 1 and in Mr Brown's submissions, that the hardship that will be experienced by Mr Lewis if he is not allowed to object is greater than the hardship that will be experienced by Ms Dallimore if the situation is such that he is able to object the application. 

I am satisfied on the evidence that the explanation given for the delay is adequate and that Mr Lewis did not rest, as it is put, on his rights.  Whilst finding that there is merit in the objection this by no means says that Mr Lewis will succeed with his objection.  It merely indicates that on the face there is an arguable case to be put by Mr Lewis and that he should have the opportunity of putting it.

I am conscious of the position taken by Ms Dallimore, and appreciate the responsibility that rests on her but consider that in fairness to both parties Mr Lewis should be given the opportunity of making his objection known to the Registrar and the Registrar given opportunity of making an appropriate decision after taking into account Mr Lewis' objections and any material that Ms Dallimore wishes to place before the Registrar at that time.

For these reasons, the Tribunal affirms the decision under review, that is, that extension of time to lodge an objection to the Registrar's decision be granted to Mr Lewis such time to be extended to 14 November 2003.  The Tribunal having made a decision to affirm the decision under review, the application for a stay is not warranted and the application of Ms Dallimore of 6 January 2004 for a stay is refused.