Duffus and Child Support Registrar (Child support)

[2019] AATA 5022

Duffus and Child Support Registrar (Child support) [2019] AATA 5022 (23 October 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC016414

APPLICANT:  Mr  Duffus

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member J D’Arcy

DECISION DATE:  23 October 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – refusal to grant an extension of time to object - no satisfactory explanation for the delay - little merit - weighing all factors the extension of time was correctly refused - 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. The issue before the tribunal is whether an extension of time should be granted to Mr Duffus to lodge an objection against a decision made on 20 July 2018.

2. On 20 July 2018 a decision maker in the Department of Human Services – Child Support (Child Support) accepted Ms [Duffus]’ estimate of income. On the same date Child Support notified Ms [Duffus] and Mr Duffus of the decision in writing and advised them that any objection to the decision had to be lodged within 28 days of receiving notification of the decision.

3. On 17 December 2018 Mr Duffus objected to the decision. The objection was made more than 28 days after he had received notification of the decision. On 28 February 2019 Mr Duffus requested an extension of time to lodge his objection.

4. On 26 April 2019 Child Support refused his request.

5. On 26 April 2019 Mr Duffus lodged an application for review with the Administrative Appeals Tribunal (the tribunal).

6. A hearing was conducted on 23 October 2019 with Mr Duffus by telephone.

7. Child Support had provided a copy of the subsection 37(1) Statement and Documents (332 pages) to the tribunal and to Mr Duffus.

CONSIDERATION

1. The relevant law about an extension of time request is the Child Support (Registration and Collection) Act 1988 (the Act).

2. Subsection 80(1) of the Act provides that a party to a child support assessment can lodge an objection in writing to various decisions, including departure determinations.

3. Section 81 of the Act requires that a person must lodge an objection to such a decision within 28 days after a notice of the decision is served on them. Where that period for lodgement has ended, a person may send their objection to the Registrar along with an application requesting that the objection be treated as if it was lodged within the allowed time (section 82).

4. Section 83 of the Act provides that the Registrar must consider the application for an extension of time, then grant or refuse that application and advise the person of the decision in writing. Section 89 of the Act allows the person who applied for the extension of time to apply to this tribunal for a review of that decision.

5. On 20 July 2018 Child Support made a decision under Part 6A of the Child Support (Assessment) Act 1989 accepting Ms [Duffus]’ income estimate. The tribunal is satisfied that a copy of the decision was sent by post to the address provided by Mr Duffus on 20 July 2018. Mr Duffus stated that he probably received the letter.

6. The tribunal finds that Mr Duffus was served with a notice of the decision. An objection to the decision was not lodged until 17 December 2018 which is outside the 28 day time frame, allowing time for delivery by post, by almost five months.

7. In Mulheron and Australian Telecommunications Corporation [1991] AATA 673, O’Connor J outlined principles to be applied in considering an application for an extension of time, as follows:

   (i)Prima facie proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so;

   (ii)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;

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

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

   (v)The merits of the substantial application are relevant; and

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

Reason for delay

1. The tribunal is satisfied that Mr Duffus was sent a letter on 20 July 2018 which stated that he had 28 days in which to lodge an objection against the decision. Mr Duffus acknowledged that the letter had been sent to the correct address and that he had probably received it.

1. Mr Duffus explained that even though he thought Ms [Duffus]’ income was around $80,000 he did not have any factual material to support his estimate until the documents were disclosed in the Federal Circuit Court proceedings. At the time that he received notice of the estimate, he stated he was [details deleted], he was caring for two children and dealing with lawyers over intervention orders. In an email to Child Support on 24 February 2019 Mr Duffus referred to having to work long hours and not being able to communicate during Child Support’s window of operating times.

2. Mr Duffus has made very serious assertions about his state of mind around July 2018 and the issues that he was dealing with at the time. However there is no documentary evidence in support of his assertions and he has not previously raised these issues as reasons for his delay. Without documentary evidence the tribunal could not give weight to Mr Duffus’ assertions.

3. Although he may have been working long hours Mr Duffus communicated frequently with Child Support by email and it was open to him to email Child Support with his concerns about Ms Duffus’ estimate within 28 days and to advise that he would be seeking to support his objection with documentary evidence.

4. The tribunal finds that Mr Duffus did not have an acceptable reason for the delay.

Whether Mr Duffus rested on his rights

1. The tribunal finds that Mr Duffus rested on his rights in the period from 20 July 2018 to 17 December 2018. The effect of the child support decision was evident on 20 July 2018 because Child Support provided a notice of assessment based on Ms [Duffus]’ estimate and yet Mr Duffus did not lodge his objection until 17 December 2018. Had he lodged his objection as soon as he received notification of the assessment on 20 July 2018 he would not have been considered to have rested on his rights.

Merits of the objection

1. Mr Duffus is seeking a review of the decision to use Ms [Duffus]’ income estimate on the basis that it does not include the income components as set out in the schedule of [payments] which he supplied.

2. As Ms [Duffus]’ estimate details do not include any allowable deductions, reportable superannuation contributions or reportable fringe benefits, Mr Duffus’ objection has little merit.

Any prejudice to Ms [Duffus] and the general public

1. The tribunal finds that to grant an extension of time to seek a review of the decision would prejudice Ms [Duffus] because, in the absence of a timely application for review, she could expect that the acceptance of her income estimate had been finalised by the expiration of 28 days from the date of service, that is by 30 August 2018 (allowing nine business days for service). It was reasonable for Ms [Duffus] to expect that she could make plans and decisions based on the child support assessment after the 28 day objection period had passed.

2. A successful objection could result in an overpayment of child support, which would be to Ms [Duffus]’ and her children’s detriment.

3. If the estimate was revoked Ms [Duffus] would not have an opportunity to lodge a new estimate because the assessment has now ended.

4. The tribunal is satisfied that Ms [Duffus] would be prejudiced if Mr Duffus was granted an extension of time to seek a review.

5. It would be against the public interest to grant an extension of time to an objection lodged five months after Mr Duffus became aware of the effect of the decision because it would be an inefficient use of Child Support resources.

Whether an extension of time is fair to others in a like position

1. The public interest requires that decisions are made by Child Support in a timely fashion and in a manner that ensures that all applicants are treated fairly and equally.

2. The tribunal considers that granting an extension of time to Mr Duffus would not be fair to other persons in a similar position who lodged applications for review within the 28 day time frame.

Whether it is proper to do so

1. The tribunal took into account the principle that “proceedings commenced outside the prescribed time will not be entertained” unless it is proper to do so.

2. The tribunal carefully considered all of the above factors and found that Mr Duffus’ delay in lodging an objection within 28 days and the potential detriment caused to Ms [Duffus] outweighed any of his undocumented reasons for not being able to lodge the objection within time.

Conclusion

1. The tribunal determined that an extension of time to lodge an objection against the decision of 20 July 2018 should not be granted to Mr Duffus.

DECISION

The decision under review is affirmed.