Darby and Child Support Registrar (Child support)

[2021] AATA 1263

Darby and Child Support Registrar (Child support) [2021] AATA 1263 (25 March 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/BC020552

APPLICANT:  Mr Darby

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  25 March 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – application for extension of time to object – significant delay – no satisfactory explanation for delay – applicant rested on rights – little merit – prejudice to other party – unfair to allow – extension of time refused – decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted 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. Mr Darby and [Ms A] are the parents of [Child 1] (born March 2006) and [Child 2] (born November 2007).  The child support assessment commenced on 7 December 2007 and Mr Darby is the liable parent under the assessment.

2. From 7 December 2007 the child support assessment reflected Mr Darby as having 0 per cent care and [Ms A] as having 100 per cent care of [Child 1] and [Child 2]. 

3. On 29 March 2010 Mr Darby notified the Child Support Agency of a change to the care arrangements stating that he provides care of four nights every three weeks.

4. On 9 April 2010 the Child Support Agency made the decision to reflect that Mr Darby provides 18 per cent care of [Child 1] and [Child 2] and [Ms A] provides 82 per cent care from 29 March 2010 (the original decision).

5. On 4 November 2020 Mr Darby objected to the original decision and as his objection was not made within the prescribed period he applied for an extension of time.[1]

   [1] As the original care percentage decision was made on 9 April 2010 an extension of time is required.  The legislative provision removing the time limit in relation to objecting to care decisions came into effect on 1 July 2010.

6. On 10 December 2020 the Child Support Agency made the decision to refuse to grant an extension of time and on 29 December 2020 Mr Darby applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the refusal decision.

7. The Tribunal conducted a hearing into the application on 25 March 2021. Mr Darby gave evidence on affirmation by conference telephone. The Child Support Agency provided the Tribunal and Mr Darby with papers relevant to the matter (379 pages).  Additional evidence was also received from Mr Darby prior to the hearing (A1-A27).

ISSUES

1. 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).[2]

   [2] As it applied prior to 1 July 2010.

2. The issue which arises in this case is whether or not to grant Mr Darby’s request for an extension of time to lodge an objection to the original decision.

CONSIDERATION

1. Part VII of the Act is about the procedures related to objections made for certain decisions. Section 80 sets out the decisions against which an objection may be lodged (a care percentage decision relates to the particulars of an administrative assessment). Section 81 is about time limits on lodging objections and provides that a person has 28 days in which to lodge an objection after a notice of the decision is served on them. Section 82 provides for a person to apply for an extension of time to lodge an objection after the 28-day period has elapsed. Section 83 requires the Child Support Agency to either grant or refuse an extension of time application and serve notice in writing of the decision.

2. In the event the Child Support Agency refuses the extension of time application, the person applying may apply to the Tribunal (the then Social Security Appeals Tribunal or SSAT) for review (item 1 of the table in subsection 89(1) of the Act).

3. The Tribunal finds Mr Darby was advised about the outcome of the original decision in a letter from the Child Support Agency dated 9 April 2010.  Given Mr Darby lodged his objection more than 28 days after he was served with notice, the Tribunal is satisfied an extension of time is required.

4. The Tribunal is required to consider whether or not it is reasonable or proper for an extension of time to be granted to Mr Darby to lodge his objection to the decision made on 9 April 2010.  From other decisions, which provide guidance to the Tribunal on this matter, it is clear that generally the statutory time limit of 28 days is to be enforced unless there are acceptable reasons for departing from this prescribed timeframe.

5. A consideration of other relevant authorities establishes that when considering matters relating to an extension of time, the Tribunal should take into account 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 or not 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 Mr Darby’s application for an extension of time on 4 November 2020 in relation to the decision of 9 April 2010, of which he was notified in a letter dated 9 April 2010, is approximately 3,815 days out of time.

2. Mr Darby told the Tribunal at the time the original decision was made he was still receiving his correspondence from the Child Support Agency by post.  He said following separation he had moved at least five times and was uncertain exactly when he received the correspondence from the Child Support Agency in relation to the change of care.  Mr Darby added that he had frequently complained about his level of care but did not know that he needed to submit an objection.  Mr Darby said he was not aware of his rights.

3. Mr Darby explained that it was only when [Ms A] had submitted an objection to a separate care decision, which was backdated, that he sought legal advice and better understood the objections process.  He said it was then he objected to the original decision made by the Child Support Agency.

4. The Tribunal notes in evidence that during a discussion with a child support officer on 16 April 2010 Mr Darby advised that he had received a letter from the Child Support Agency dated 1 April 2010 asking him to make contact about the care of the children.  This would indicate he was receiving his correspondence from the Child Support Agency.  The Tribunal further notes in evidence that Mr Darby contacted the Child Support Agency again on 26 May 2010 to discuss care of the children and a number of other child support matters.  During this conversation Mr Darby is recorded as stating there was a recent care decision which reflected his level of care, however, this care had remained the same since the start of the assessment.  Mr Darby asked the child support officer why, if his care had remained the same since the case commenced, it could not be backdated in the assessment.

5. The Tribunal is satisfied that at some point prior to contacting the Child Support Agency on 26 May 2010 Mr Darby had received notification of the original decision made on 9 April 2010 relating to his change of care.

6. The letter notifying Mr Darby of the change in his level of care outlines what to do if he disagreed with the decision.  It states that Mr Darby “may object and seek a review of the decision” and refers to an enclosed brochure as well as providing website details which explain how to object.  The letter also recommends calling the Child Support Agency to discuss the objection to ensure “you fully understand your options and rights.”

7. The Tribunal is satisfied that Mr Darby was properly informed of his right to object to the original decision.  Although Mr Darby has informed the Tribunal he did not fully understand these rights, there was nothing preventing him from seeking legal advice sooner.

8. The Tribunal finds that Mr Darby has not provided a reasonable explanation for the significant delay in submitting his objection to the original decision.  The Tribunal finds that Mr Darby rested on his rights.

Merits of the application

1. Mr Darby told the Tribunal it was not the level of care determined by the Child Support Agency that he disputed but rather the date from which the change occurred.

2. Mr Darby explained that he had always had regular care of the children from the time the child support case commenced, however, this had not been recorded by the Child Support Agency.  Mr Darby said as soon as he became aware the child support assessment reflected him as having 0 per cent care of the children he contacted the Child Support Agency.  He said that was on 29 March 2010.  Mr Darby added that his level of care had never been correctly established by the Child Support Agency in the first place.  Mr Darby said that perhaps in the first few weeks after separation he had no care of the children but then had regular care from around January 2008 onwards.  He said he could not recall the Child Support Agency asking him about his level of care when the case first commenced.

3. Mr Darby said he had provided evidence to the Tribunal which showed he had regular care of [Child 1] and [Child 2] well before 29 March 2010.

4. The Tribunal notes in evidence statutory declarations from [Ms B] and [Mr C] dated 5 March 2021 and an affidavit from [Mr D] also dated 5 March 2021.  The Tribunal also notes records from the child care centre attended by [Child 1] and [Child 2] which show pick-ups and drop-offs made by Mr Darby during the period 18 April 2008 to 27 November 2009.

5. Although [Ms A] did not participate in the hearing, the Tribunal notes that during a conversation with a child support officer on 6 November 2020 she is recorded as stating that Mr Darby left the family home in 2007 and did not have a regular pattern of care until March 2010.  [Ms A] states there is no way Mr Darby had 18 per cent care from 2008.

6. Section 48 of the Assessment Act defines a care period, the events that must occur in order to give effect to a change in the percentage of care and how to work out a percentage of care. It relevantly states:

   Working out percentage of care

   (1)  A person’s percentage of care for a child for a day in a child support period is the percentage of care of the child that the person is likely to have during the period (the care period) of 12 months from:

   (a)  the day on which an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child; or

   (b)  if one of the following events occurs:

   (i)  there is a change of less than 7.1% in the percentage of care for the child that the person has because of an agreement, plan or order mentioned in paragraph 49(a) or (b) (including a variation of such an agreement, plan or order);

   (ii)  there is a change of at least 7.1% in the percentage of care for the child that the person has, and the change alters the person’s cost percentage for the child;

   (iii)  the person’s percentage of care for the child falls below 14%;

   (iv)  the person’s percentage of care for the child increases to 14%, or above 14%;

   (v)  the person’s percentage of care for the child falls below 35%;

   (vi)  the person’s percentage of care for the child increases to 35%, or above 35%;

   whichever of the following days is applicable:

   (vii)  if the Registrar is notified, or otherwise becomes aware, of the event within 28 days after the day on which the event occurs—the day on which the event occurs;

   (viii)  in any other case—the day on which the Registrar is notified, or otherwise becomes aware, of the event; or

   (c)  if the child is a relevant dependent child in respect of whom section 73A applies—the day specified in that section as the first day on which the parent is taken to have had the child.

   Note: The Registrar is not entitled to amend an administrative assessment in respect of a person’s percentage of care unless the Registrar becomes aware of an event mentioned in paragraph (1)(b) (see subsection 75(2)).

7. Mr Darby has told the Tribunal that he does not dispute his level of care but that he had 18 per cent care of the children from around January 2008 and not from 29 March 2010 as recorded by the Child Support Agency.  Mr Darby notified the Child Support Agency of the new care arrangements on 29 March 2010 and stated he had always had a level of care for the children.  The Child Support Agency recorded this date as the date of notification.

8. Paragraph 48(1)(b) of the Assessment Act provides that, in circumstances where notification of a change in care is not made within 28 days after the day on which the change took place, the change is applied from the day on which the Registrar is notified or otherwise becomes aware of that change.  Even if Mr Darby did have 18 per cent care of the children from a date in January 2008, as he did not notify the Child Support Agency of this change until 29 March 2010, the date of effect would be 29 March 2010 and not an earlier date.  There is no evidence before the Tribunal to suggest that the Child Support Agency was aware of the change any earlier than 29 March 2010.

9. 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]).

10. The Tribunal finds Mr Darby’s application for review would not have good prospects of success.  Based on the evidence provided and having carefully reviewed the relevant law, the Tribunal considers that the application made by Mr Darby has little merit.

Prejudice to [Ms A] and the wider public

1. Given Mr Darby is significantly out of time in making his objection, it would be reasonable for [Ms A] to consider the decision was final. [Ms A] should ordinarily be able to rely on the child support assessment once the period for objection has passed. As Mr Darby is approximately 3,815 days late in making his application, the Tribunal finds [Ms A] would be disadvantaged should the extension of time to lodge an objection be granted.

2. The Tribunal also considered whether or not there would be prejudice to the general public if an extension of time was granted. 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 allows for extensions of time. In this case, given the very lengthy delay, the Tribunal believes there would be prejudice to the general public if an extension of time was granted.

Fairness in granting an extension of time as between Mr Darby and other persons in similar positions

1. The Child Support Agency notifies parties that they can seek a review of decisions. Most people comply within the relevant timeframe. It is clear the statutory time limit is to be enforced unless there are acceptable reasons for the delay. The Tribunal finds that it would not be fair to others to grant Mr Darby an extension of time in view of the statutory timeframe which applies.

CONCLUSION

1. The Tribunal has found there is little merit in reviewing the substantive application.  The Tribunal has also found that Mr Darby has not provided a reasonable explanation for the delay in submitting his objection. The significant delay cannot be overlooked and the Tribunal considers that Mr Darby rested on his rights.  There would also be some prejudice to [Ms A] and the general public should an extension of time be granted.

2. Taking into account all these relevant factors, the Tribunal concludes it would not be appropriate in this case for the extension of time in which to lodge an objection to be granted.

DECISION

The decision under review is affirmed.