Deyes and Child Support Registrar (Child support)

[2022] AATA 4103

Deyes and Child Support Registrar (Child support) [2022] AATA 4103 (19 October 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/PC024417

APPLICANT:  Mr Deyes

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member S Hoffman

DECISION DATE:  19 October 2022

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides as follows:

• Mr Deyes’s request for an extension of time to lodge an objection to the decision made on 2 March 2022 is granted.

CATCHWORDS

CHILD SUPPORT – application for extension of time – satisfactory explanation for the lengthy delay – some merit – no prejudice - extension of time granted – decision under review set aside and substituted

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 Deyes is the parent liable to pay child support to Ms [A].   

2. On 10 May 2021, an officer from the Child Support Agency (the CSA) made a decision to accept an estimate of income from Mr Deyes of nil, to be applied from 1 July 2021.

3. On 2 March 2022, a CSA officer decided to amend the income estimate of nil, to an annualised income estimate of $224,246 for the period from 2 August 2021 to 30 June 2022 (the original decision).

4. According to its records, the CSA received an objection from Mr Deyes to the original decision on 6 July 2022.

5. Generally, a person has 28 days in which to lodge an objection to a decision made by the CSA. Because of the time that had elapsed between the date of the original decision – which was 2 March 2022 – and 6 July 2022, Mr Deyes requested an extension of time (EOT) so his objection could be considered.

6. The EOT was requested on 9 July 2022 and refused on 18 July 2022 (the EOT decision).

7. On 8 August 2022, Mr Deyes sought a review by this tribunal of the EOT decision. The matter was heard on 19 October 2022.

8. The tribunal had before it a bundle of documents provided by the CSA (numbered 1 to 177), a copy of which had been provided to Mr Deyes. Mr Deyes also submitted documents (A1 to A33). Mr Deyes gave affirmed evidence in person.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the (Child Support (Registration and Collection) Act1988 (the R & C Act).

2. The main issues which arise in this case are whether Mr Deyes lodged an objection within the 28-day timeframe, and if not, why not; on what date did he lodge an objection and can an EOT be granted.  

CONSIDERATION

Legislation and policy

1. Section 63B of the Assessment Act allows the Registrar (the CSA) to amend an assessment of child support which used an income estimate if certain criteria are met. There is a note that this provision does not limit the power under section 75 to amend assessments.

2. Section 75 of the Assessment Act allows the CSA to amend an administrative assessment as considered necessary to give effect to the Assessment Act or the R & C Act.

3. Part VII of the R & C Act is about the procedures related to objections made for certain decisions. Section 79D of the R & C Act gives a simplified outline of Part VII and sets out that the Registrar (the CSA) is required to reconsider a decision to which a person has objected.

4. Subsection 80(1) of the R & C Act requires a person objecting to a decision to make their application in writing.[1]

   [1] There is an exception. Objections do not have to be in writing for care percentage decisions (subsection 80(6) of the R & C Act). The decision relevant to this review is not a care percentage decision but a decision to do with an estimate of income.

5. Section 81 of the R & C Act is about time limits on lodging objections. Relevant to this review, it provides that a person has 28 days after a notice of the decision was served on them, in which to lodge an objection.

6. Section 82 of the R & C Act provides for a person to apply for an extension of time to lodge an objection, after the 28-day period has elapsed. It requires that the application must state fully and in detail the grounds for the application, including the circumstances concerning, and the reasons for failing, to lodge the objection within the 28-day timeframe. It also states that the application must be lodged in the manner specified by the CSA.

7. Subsection 83(1) of the R & C Act requires the CSA to either grant or refuse an extension of time application, and if granted, to deal with the objection.

8. Section 84 of the R & C Act sets out that the objection must state or give fully and in detail the grounds relied on.

9. The Child Support Guide (the Guide) assists CSA officers in administering the child support legislation. Generally, the tribunal will follow the Guide unless there is a good reason in a particular case not to do so. At 4.1.4, the Guide states that an objection must be in writing and can be lodged by mail, email or in person. It states: “It is not necessary for the person to use the word ‘objection’ in their written objection, but they must ask the Registrar to reconsider the original decision”.[2]

   [2] The Guide (2022) 4.1.4 Can an objection decision be made? accessed 22 October 2022 at >

   Section 4.1.4 also sets out how to work out the last day of the 28-day period. Part of this involves establishing the date when the notice was served on a person, if it was posted to them. Section 4.1.4 states that in most cases, a notice is presumed to have been served on a person on the twelfth working day after the date of the notice. This allows for the time it could take for a notice to be printed and mailed after being produced, and then delivered by the postal service.

Evidence and consideration of evidence

1. The tribunal is required to consider whether it should grant an EOT for Mr Deyes to lodge his objection to the decision made on 2 March 2022. Other decisions provide guidance to the tribunal in 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.

2. The Federal Court in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment [1984] FCA 176 said at [18]:

   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 28 days is not to be ignored. Indeed it is the prima facie rule that proceedings outside that period will not be entertained. It is a precondition to the exercise in his favour that the applicant for an extension show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time”.

3. In Re Mulheron and Australian Telecommunications Corporation [1991] AATA 673, O’Connor J of the Administrative Appeals Tribunal noted the following principles of relevance to this review:

   ·     It is relevant whether the applicant rested on his [or her] rights or took action to make the decision maker aware that the decision was being contested;

   ·     Any prejudice to the respondent that would be caused by the granting of the extension of time is relevant;

   ·     Any wider prejudice to the general public in terms of disruption to established practice is relevant;

   ·     The merits of the substantial application are relevant; and

   ·     Fairness in granting an extension of time as between the applicant and other persons in like position is relevant.

4. The tribunal will therefore consider this matter under the following headings:

   ·     Did Mr Deyes rest on his rights?

   ·     Is there any prejudice to the other parent?

   ·     Is there any prejudice to the general public?

   ·     Are there merits in reviewing the substantive application?

   ·     Is it fair to grant the extension of time?

Did Mr Deyes rest on his rights?

1. The original decision was made on 2 March 2022. In accordance with the Guide, the notice of that decision would have been served on Mr Deyes 12 working days later which the tribunal calculates to be 18 March 2022.

2. Mr Deyes had 28 days from 18 March 2022 in which to lodge an objection. The 28th day was 18 April 2022.

3. Although the CSA recorded that Mr Deyes lodged his written objection on 6 July 2022, the tribunal notes that Mr Deyes uploaded a letter to the CSA system on 27 May 2022 at 2:08pm. The letter was dated 26 May 2022. In this letter he made a number of points, including that he was responding to an assessment notice dated 22 April 2022 which was incorrect. He set out details of dates during which he was working and his estimates of income for 2021/22 (from 1 July 2021) and 2022/23. In his covering email, Mr Deyes wrote as follows:

   Please treat this as formal notice of my change of income. Please amend my child support payment from 19 August 2021 onwards to reflect my current status. The assessment used (which I don’t know how it came about as I was not consulted) is incorrect.

4. On 8 June 2022, the CSA wrote to Mr Deyes asking him to contact them. They sent him an SMS to that effect on 14 June 2022. Mr Deyes spoke to a CSA officer on 28 June 2022. It was recorded as being a lengthy discussion.

5. On 6 July 2022, Mr Deyes lodged an objection to the decision made on 2 March 2022, using the CSA’s form designed for that purpose.

6. The tribunal was unable to locate any requirement or expectation in the legislation or the Guide that a person lodges their written objection using a particular form. The quote from the Guide at paragraph 19 implies that they are not required to lodge an objection using a particular form as it states they do not have to state “this is an objection” for an objection to be an objection.

7. The tribunal is of the view that the email, letter and other attachments sent to the CSA on 27 May 2022 could reasonably be taken to be Mr Deyes lodging an objection to the decision made on 2 March 2022. However, even if that was the case, Mr Deyes would not have lodged his objection within the 28-day timeframe.

8. Mr Deyes said the reason he did not lodge an objection within 28 days of the 2 March 2022 notice was that he never received the original decision. This was consistent with what he wrote in his letter to the CSA dated 26 May 2022. He stated in that letter that in the past few months he had received only two letters: one dated 16 April 2022 which he received on 16 May 2022 and one dated 22 April 2022 which he received on 20 May 2022. Neither of these were included in the CSA documents.

9. The time between the dates of the letters and when he received them may be because Mr Deyes was working away during those periods.

10. Mr Deyes submitted a photograph of his letterbox with mail sticking out. He said his home was on the route taken by students attending the nearby [High] School. He did not know why he did not receive the letter dated 2 March 2022 but speculated that someone may have taken it from his mailbox.

11. In his various letters to the CSA, Mr Deyes wrote that if he had known he was being assessed on an income of $224,246 he would of course have contacted them immediately. He said the same to the tribunal. The tribunal accepts that this is the case. It accepts that the delay between the notice being issued on 2 March 2022 and Mr Deyes contacting the CSA on 27 May 2022 is because he did not receive the notice dated 2 March 2022.

12. Mr Deyes wrote that he did receive a notice dated 16 April 2022 which showed the income used for him in the child support assessment. Allowing 12 working days for that notice means he was taken to receive it on or before 3 May 2022. As Mr Deyes did contact the CSA on 27 May 2022 about the income figure that was then being used for him, the tribunal is satisfied that once he became aware of the income figure used for him in the assessment, he did not rest on his rights.

Is there any prejudice to the other parent?

1. Prejudice to the other party could occur if, for example, [Ms A] experienced difficulties in obtaining documents that she might want to submit as evidence, and these difficulties were due to the time that has elapsed since the original decision was made.

2. Given this case is to do with Mr Deyes’s income estimate and relevant evidence had been obtained by the CSA from Mr Deyes’s employers and provided by Mr Deyes to the CSA, the tribunal is satisfied that [Ms A] would not be disadvantaged in relation to the provision of evidence by her if the EOT was granted.

3. Mr Deyes said he believed he had arrears of child support at the time of the hearing of about $8,000 to $9,000. If an EOT is granted and an objection decision is made in Mr Deyes’s favour, then the amount of the arrears will be reduced. There is also the possibility that [Ms A] will have been overpaid child support. However, given the amount of the arrears, it is unlikely that any overpayment would be for a significant amount.

4. The tribunal is satisfied that allowing the EOT will not prejudice the other parent.

Is there any prejudice to the general public?

1. The legislation sets out timeframes in which to lodge objections and the public would reasonably expect that these are observed. However, the legislation also allows for there to be extensions to these timeframes when circumstances warrant.

2. In this case the tribunal has accepted Mr Deyes’s submission that he did not receive the notice dated 2 March 2022 and when he did realise the income amount used in the child support assessment, he did contact the CSA in good time.

3. The tribunal is of the view that it is generally accepted that mail does sometimes go astray and allowance is made for this in different situations. On that basis, the tribunal finds that there would not be prejudice to the general public if the EOT was granted.

Are there merits in reviewing the substantive application?

1. The tribunal is satisfied that there would be merit reviewing the substantive application as Mr Deyes provided the CSA with ample evidence showing what his income was at different times during 2021/22.

2. It is agreed that Mr Deyes lodged an estimate of income of nil, that applied from 1 July 2021. He started work on 2 August 2021 and was paid $18,700 a month.

3. Mr Deyes said that he was employed on a two-month contract that was later extended to four months.

4. Mr Deyes did not submit a revised estimate in August 2021, as he should have done. In December 2021, the CSA made enquiries and ascertained that Mr Deyes had commenced work with [Company 1] Pty Ltd ([Company 1]) some months earlier. [Company 1] responded to the CSA’s enquiries on 22 December 2021, stating that Mr Deyes was still employed with them, that he was paid $18,700 a month and that his contract expired on 30 June 2022.

5. In his letter dated 26 May 2022, Mr Deyes wrote that he was employed by [Company 1] until 24 December 2021 and was unemployed until 28 February 2022. He started work again on 1 March 2022, having found another contract position with a different employer.

6. A CSA officer tried to call Mr Deyes to enquire about his employment, to no avail. A message was left for him on 10 February 2022 to contact the CSA. Mr Deyes did not contact the CSA and a decision was made to amend his estimate in accordance with section 63B of the Assessment Act.

7. A salary of $18,700 a month is equivalent to $224,400 a year. The CSA used a reviewed estimate figure of $224,246 a year for the period from 2 August 2021 to 30 June 2022. This was reasonable given the information the CSA had to hand at the time.

8. Mr Deyes acknowledged that he was at fault for not informing the CSA when he started work in August 2021 and not providing them with a revised estimate at that time. He said that he did not know what the process was and that a person could lodge a revised estimate. However, that is not a sufficient reason for not calling the CSA to find out or to check information on estimates readily available on the CSA’s website. Mr Deyes is an [Occupation 1] who was employed as a project manager. The tribunal is confident those tasks are well within his capabilities.

9. In his letter dated 26 May 2022, Mr Deyes provided information to the CSA about the periods during 2021/22 when he was employed and when he was unemployed. He subsequently provided more details of his income during 2021/22 including payslips from [Company 1] and his second employer, [Company 2] Pty Ltd.

10. According to his 2021/22 tax return, Mr Deyes’s taxable income for that year was $149,685. It is apparent from this evidence that although Mr Deyes was assessed on an annual income of $224,426 from 2 August 2021 to 30 June 2022, his income during that period was less than that.

11. In light of the foregoing, the tribunal concludes that there is merit in reviewing the substantive application.

Is it fair to grant the extension of time?

1. The CSA notifies parties that they can lodge objections to decisions within 28 days. The statutory time limit of 28 days should be enforced unless there are acceptable reasons for the delay.

2. Given the evidence already set out, the tribunal is satisfied that on balance, it is fair to grant the EOT.

Conclusion

1. As there is merit in reviewing the substantive application and the tribunal is satisfied with Mr Deyes’s explanation as to why he contacted the CSA on 27 May 2022 and not an earlier date, the tribunal is of the view that these factors outweigh other considerations that might weigh in favour of not granting an EOT. 

2. The tribunal determines that, on balance, it is fair and equitable, and proper, to grant the extension of time request.

Other matters

1. As a consequence of Mr Deyes’s contact on 27 May 2022, the CSA amended his income estimate from 27 May 2022 to $184,877. The CSA documents include a file note of a conversation between a CSA officer and Mr Deyes on 22 August 2022.[3] The file note seems to be indicating that the CSA would review that figure ($184,877) if supporting evidence of income was provided. The CSA officer wrote that she agreed that payslips already submitted would be suitable for that purpose.

   [3] Page 136 of the CSA documents.

2. Mr Deyes said the estimate from 27 May 2022 had not been adjusted and was too high. The tribunal is not reviewing that decision but would draw the CSA’s attention to this particular point.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides as follows:

• Mr Deyes’s request for an extension of time to lodge an objection to the decision made on 2 March 2022 is granted.