Dillon and Child Support Registrar (Child support)

[2018] AATA 3284

Dillon and Child Support Registrar (Child support) [2018] AATA 3284 (11 July 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/MC014019

APPLICANT:  Mr Dillon

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member S Letch

DECISION DATE:  11 July 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS

Child support - Refusal of extension of time to object to a departure determination - Reasons for the delay not compelling - Objection unlikely to succeed - Extension of time to object should not be granted - Decision under review affirmed

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. Mr Dillon and Ms Dillon are the parents of four eligible children for whom Mr Dillon has been assessed by the Child Support Agency (“CSA”) to pay child support to Ms Dillon.

2. On 18 December 2017, Ms Dillon applied for a “change of assessment” on a number of different grounds. On 20 February 2018, an original decision-maker found a ground for departure, and varied Mr Dillon’s adjusted taxable income to $75,109 for the period 18 December 2017 to 31 July 2019.  The decision was notified by letter to both parties on 20 February 2018.

3. On 10 April 2018 (notably, more than 28 days after Mr Dillon accepted he had received the decision by post), Mr Dillon objected to the decision. On 26 April 2018, the CSA refused to grant Mr Dillon an extension of time in which to bring an   objection, citing a lack of a reasonable explanation for the delay, and an absence of substantive merit.

4. On 28 April 2018, Mr Dillon applied to the Tribunal for review of the decision to refuse his extension of time application.

5. The Tribunal conducted a hearing on 11 July 2018. Mr Dillon participated by conference telephone.

6. In reaching its decision, the Tribunal has considered the information provided by the CSA (Exhibit 1) and Mr Dillon’s evidence during the hearing.

CONSIDERATION

Background and legislative framework

1. The legislation relevant to this application is contained in the Child Support (Registration and Collection) Act 1988 (the Registration Act). The relevant provisions are summarised below. With the aim of promoting consistency in decision-making, the Tribunal has also had regard to the Child Support Guide (the Guide), the CSA’s online policy and legislation resource.

2. A parent may object to a decision made by the CSA pursuant to section 80 of the Registration Act (including a decision about a particular matter of the assessment, such as a parent’s income). Section 81 of the Registration Act provides that an objection must be lodged within 28 days after notice of the decision is served on the person.

3. The decision to which Mr Dillon wished to object was made on 20 February 2018 and notified to Mr Dillon by letter of the same date. Mr Dillon’s recollection at the hearing was that he received that letter in the post within 7 days (or by no later than 27 February 2018). Regulation 14 of the Child Support (Registration and Collection) Regulations 1988 provides that a notice may be served by the CSA by sending it by pre-paid post to a person’s address for service. Service is then taken to have occurred at the time the notification would have arrived at that address in the usual course of the post. The Tribunal is satisfied that Mr Dillon’s objection was made more than 28 days after receipt of the letter dated 20 February 2018.

4. Section 82 of the Registration Act relevantly provides that a person may apply for an extension of time in which to lodge an objection and that the application must state fully and in detail the grounds of the application, including the circumstances concerning, and the reasons for, the failure by the person to lodge the objection within the 28 day time period prescribed.

5. The Registration Act does not set out criteria for consideration when determining an application for an extension of time within which to object. However, the Guide contains useful guidelines at chapter 4.1.5. In summary, the Guide suggests that it is ultimately a question as to whether the interests of justice favour the grant or refusal of the application in the particular circumstances. Factors to be considered are the reason for the delay, the merits of the objection, whether the person has rested on their rights and any potential prejudice to the other party or the public.

6. The established cases indicate that the starting position is the prima facie rule that proceedings commenced outside a statutory period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). However, the primary concern “…is to do that which will enable justice to be done between the parties” (see Martinsen v Secretary, Department of Family & Community Services [2004] FCA 297 per Spender J). Spender J quoted McHugh J in Gallo v Dawson (1990) 64 ALJR 459 as follows:

   In order to determine whether the rules [imposing time limits] will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time.

   When the application is for an extension of time …it is always necessary to consider the prospects of the applicant succeeding in the appeal.

7. In line with Wilcox J’s survey of cases in Hunter Valley Developments P/L v Cohen (1984) 3 FCR 344, the tribunal proposes to consider the matters identified in Gallo v Dawson under the following heads:

   ·     the explanation for the delay;

   ·     the merits of the substantial application;

   ·     any prejudice to the other party including any prejudice in defending the proceedings occasioned by the delay; and

   ·     any public interest considerations that might flow from a successful application including “the unsettling of other people” (Ralkon v Aboriginal Development Commission[1982] FCA 153; (1982) 43 ALR 535 at p 550) or of “established practices” (Douglas v Allen (Morling J, 3 April 1984, unreported, p 19)).

Explanation for the delay

1. Mr Dillon told the Tribunal that he had thought he had only 14 days to object to the decision. By the time he had received the letter and considered his position, he thought he was already “too late”. He did not recall noticing the 28 day time limit which had been explained in the letter dated 20 February 2018.

2. In the Tribunal’s assessment, Mr Dillon’s explanation for the delay was not particularly compelling given the clear advice to him about his rights in the correspondence of 20 February 2018.

Merits of the objection

1. In the Tribunal’s assessment, the decision by the CSA to increase Mr Dillon’s adjusted taxable income appears entirely reasonable. It appears without question there is a ground to depart; however, as is often the case in matters involving self-employed parties, there is a degree of discretion in determining the quantum of variation from assessed taxable income.  Whilst the Tribunal considers it unlikely Mr Dillon would secure the outcome he seeks, a different outcome (either more or indeed less favourable to Mr Dillon) cannot be excluded given the breadth of a decision-maker’s discretion in this context. 

Potential prejudice

1. Ms Dillon was entitled to rely on the assessment in place since the earlier decision was made. The extension sought by Mr Dillon is not particularly long; however, the Tribunal must weigh any potential prejudice to Ms Dillon arising from the desirability of the certainty of the CSA’s decision against the other factors relevant to the application for an extension.

Public interest considerations

1. The statute provides for a 28 day time limit for the lodgement of objections so that parents (and the CSA) can act with certainty as to the outcome when the objection period has elapsed. The public has an interest in reviews of decisions made by the CSA being performed in a timely fashion and in a manner that ensures all applicants are treated fairly and equally. Accordingly, an extension of the time for objection is not to be automatically granted. All of the factors must be carefully weighed.

Conclusion

1. The Tribunal is not captivated by Mr Dillon’s explanation for the delay. He was properly informed of his appeal rights; it was incumbent upon him to read and understand those rights. Absent a reasonable explanation for the delay, an extension will not ordinarily be granted. 

2. The Tribunal is not persuaded there are good prospects for Mr Dillon securing a better outcome were his objection permitted to proceed. The Tribunal is also concerned about the possible prejudice to Ms Dillon who has been entitled to rely on the original decision.

1. In weighing all the relevant factors, the Tribunal finds that granting an extension of time in which to object is not in the interests of justice in this case.

2. The Tribunal observes that it is open for a party to a child support assessment to make an application for a fresh departure at any time for consideration of any material changes in circumstances. 

DECISION

The decision under review is affirmed.