Felangan and Child Support Registrar (Child support)

[2024] AATA 1894

Felangan and Child Support Registrar (Child support) [2024] AATA 1894 (6 May 2024)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2024/BC027743

APPLICANT:  Mr Felangan

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                6 May 2024

APPLICATION:

An extension application made on 5 April 2024 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 5 February 2024 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

CHILD SUPPORT – extension of time to apply to tribunal – child support assessment – change to care arrangements – objections officer’s decision to amend care change date – application to tribunal made more than 28 days after – busy at work, cursory reading of decision and misunderstanding of impact on liability – no apparent merit to objection – application refused

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.

STATEMENT OF REASONS

1. Mr Felangan and [Ms A] are the parents of two children. There has been a child support assessment in place since 9 September 2013, collected by Services Australia – Child Support (Child Support) from 28 October 2013.

2. At all relevant times the child [Child 1] was recorded as being in Mr Felangan’s 100% care.

3. On 19 July 2023 [Ms A] advised Child Support that there was a change to [the child]’s care arrangements, whereby she had 100% care from 12 June 2023. The care change application was accepted on 21 August 2023.

4. On 4 October 2023 Mr Felangan lodged an objection to that decision and on 5 February 2024 an objections officer made two decisions. The first was to amend the care change date to 24 June 2023. The second decision was made pursuant to section 87AA of the Child Support (Registration and Collection) Act 1988 (the Act) whereby the amended decision was reflected in the assessment from 4 October 2023 (the date of effect decision), being the date on which Mr Felangan lodged his objection. This date of effect decision is a separately reviewable decision by this Tribunal.

5. Mr Felangan lodged an application to this Tribunal on 5 April 2024, requesting a review of the date of effect decision. As this request for a review of the decision was not lodged with the Tribunal within 28 days of the objections officer’s decision, an application for an extension of time was also lodged.

6. The matter was heard on the papers. The Tribunal had regard to the documents supplied by Child Support (folios 1 to 120), the reasons for review outlined by Mr Felangan in his application and his reasons for delay outlined in his extension application.

ISSUE

1. The relevant legislation is contained in the Administrative Appeals Tribunal Act 1975 (the AAT Act) and the Act.

2. The issue to be decided by the Tribunal is whether Mr Felangan be granted an extension of time to lodge a request for review regarding the objections officer’s decision dated 5 February 2024.

CONSIDERATION

1. The law relating to a person’s right to seek review of a decision of the Registrar is contained in section 29 of the AAT Act. Subsection 29(2) of the AAT Act requires that a person must lodge a review request with this Tribunal within 28 days after a notice of the decision of the Registrar is given to them.

2. Section 91 of the Act states that, where the period for lodgement has ended, the person may send the application to the Tribunal along with a request that the review be treated as if it was duly lodged within the allowed time. This is commonly referred to as an extension of time request. Section 92 of the Act then provides that the Tribunal must consider the application for an extension of time, and grant or refuse that application in writing.

3. In this case, Mr Felangan was sent notification of the 5 February 2024 decision to disallow his objection electronically.[1] Mr Felangan then lodged an application for review with the Tribunal on 5 April 2024. As this request for a review of the decision was not lodged within 28 days, an application for an extension of time must now be considered.

   [1] Folio 11

4. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, the High Court, in dealing with an extension of time case and the general concept of limitation periods, noted that while a grant of an extension of time is the exception to the general rule, justice may be served by the general rule being overruled in particular circumstances.

5. The Tribunal considered the guiding principles for the exercise of the discretion to allow an extension of time as set out in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176. In that case the Federal Court said that an extension of time should not be granted unless it was proper to do so, noting that generally applications commenced outside of the prescribed time limit will not be considered. A consideration of other relevant authorities establishes that when considering whether to allow an extension of time, the Tribunal should consider 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 the applicant rested on their rights;

   ·     the merits of the substantive application;

   ·     any prejudice to the other party including any difficulties that they will experience in providing evidence as a result of the delay;

   ·     wider prejudice to the general public;

   ·     fairness in granting an extension of time as between the applicant and other persons in a similar position; and

   ·     whether it is proper to grant the extension of time.

The reasons for the delay and whether Mr Felangan rested on his rights

1. The Tribunal is satisfied that Mr Felangan lodged his application to this Tribunal some 31 days after the expiration of the 28-day period.

2. When lodging his extension application, Mr Felangan stated:

   I received the decision letter from CSA dated 5^th February, and as the decision was reached in accordance with the evidence I provided, I was happy with the actual decision - being the care date adjustment made by CSA. However, I am a Director of a [Group] in [a work sector] firm, I get over 100 emails/messages a day, working 11-12hrs a day and therefore, and perhaps mistakenly, I didn’t notice the finer print of the letter on the 5^th by CSA. I had assumed, since the decision was made in line with my evidence, that an adjustment would be made to the Backcharges I was previously lumped with.

   Therefore, I waited until the next CSA statement dated 17^th February for an adjustment. When no adjustment was made, I thought perhaps it was too soon from the decision date of the 5^th and would be on the next statement. Therefore, I again waited for the account statement in late March to confirm again there was no adjustment, and thus being outside of the 28 day period. This week I dug deeper into the CSA letter and noted that while I was able to provide sufficient evidence that the children's mother had fabricated false information, that the CSA would make no financial adjustment. I called the CSA today and their only response was sorry your objection was too late, see next paragraph.

   I had previously provided sufficient reasoning to the Senior Objection officer at the time of my initial objection, as it was indeed late. This was due to an error in part of the CSA, they were officially supposed to make contact to discuss the change, which did not occur. At the time I knew there would be a claim, and expected it, so I didn't think to review the exact details until I received the $1200 back-charge which was then already too late, but that's when I found that false information provided. The CSA accepted this at the time and advised/accepted my objection, now they are back-peddling.

3. Mr Felangan’s position is that he works long days and did not notice that the objection decision would only be implemented from the date he lodged his objection. Further, though he was aware that there was no adjustment to his child support liability, he assumed that there was an administrative delay in implementing the decision. Thus, the 28 day period had lapsed before he understood the impact the date of effect determination would have upon his liability.

4. In this case Mr Felangan has provided no satisfactory reasons for his delay. Instead, his evidence is that he simply did not read the objection decision closely, largely because of his work responsibilities.

5. There is no evidence to suggest that Mr Felangan was prevented from lodging the application within the requisite period. In such circumstances, the Tribunal is not satisfied that Mr Felangan had adequate reasons for the delay in lodging his application to this Tribunal.

6. The Tribunal is satisfied that Mr Felangan did rest on his rights.

The merits of Mr Felangan’s objection

1. An objection to a care percentage decision does not have to be lodged within 28 days. However, subsection 87AA(1) of the Act states that if it is lodged outside the 28 days and, as in this case, the objection is allowed the effective date of the objection decision is the date on which the objection was lodged.

2. The Registrar may, if special circumstances exist that prevented the person from lodging the objection within the relevant period, make a determination under subsection 87AA(2) that subsection 87AA(1) applies for an extended period of time. The objection officer did not make a determination under subsection 87AA(2) of the Act and so the decision took effect from 4 October 2023 and not before.

3. When lodging his objection Mr Felangan advised that he did not lodge his objection within 28 days of receipt of the decision:

   Because ‘your’ (CSA) letter dated 21^st August stated that the assessment was suspended during the objection period. Therefore, I did not expect to see the adjustment on my latest Invoice. I refute the adjustment of $1200. Please refer to the attached details. 

4. The Tribunal notes that attached to his objection application were screen shots of letters sent, including the 21 August 2023 letter which did (correctly) state that the administrative assessment reflected that both he and [Ms A] had 0% care of [the child] during the period 12 June to 18 July 2023.[2]

   [2] Folio 53. This letter correctly stated that the administrative assessment in respect of [the child] was suspended during that period. As [Ms A] reported the care change more than 28 days after it occurred, her new care percentage was only reflected in the assessment from the date she lodged the care change application. Mr Felangan’s reduced care percentage of 0% was only reflected in the administrative assessment from 12 June 2023. These decisions were made pursuant to paragraphs 54F(3)(b)(i) and (ii) of the Child Support (Assessment) Act 1989. For completeness, the Tribunal notes that, when the objection decision determined that the care change occurred on 24 June 2023, it follows that [Ms A] did lodge her care application within 28 days of it occurring.

5. In his submissions to Child Support Mr Felangan stated:

   Thus, it was out interpretation that there would be no backpay changed to my account based on this clause, therefore, we decided it was not really worth fighting over the wrong date stated above by [the child]’s mother as we believed there would be no impact to the child support payments.

6. However, the updated child support assessment attached to this letter clearly shows that Mr Felangan’s child support liability increased from $13,592 to $17,460 per annum from 12 June 2023[3] and to $35,255 per annum from 19 July 2023[4] because he was no longer assessed as meeting 100% of [the child]’s costs.[5]

   [3] Folio 57

   [4] Folio 58

   [5] Folio 57

7. That Mr Felangan did not pay close attention to this letter or that he made a particular interpretation based on the advice of the suspension of the assessment in respect of [the child] does not, in the Tribunal’s view, constitute a special circumstance that prevented him from lodging a timely objection.

8. The Tribunal has carefully considered the objection decision and the statement of reasons provided by the objections officer. It is apparent that the findings in respect of the section 87AA of the Act are sound.

9. On review, it is unlikely that a decision maker may determine that Mr Felangan was prevented from lodging his objection application on an earlier date because of special circumstances.

10. In the Tribunal’s view there is no apparent merit to the application.

Prejudice to [Ms A] and the wider public

1. The Tribunal does consider that there would be significant prejudice to [Ms A] if an extension of time was granted, given the delay in lodging the objection application.  

2. The Tribunal is satisfied that there would be prejudice to the wider public if the extension of time were granted, as it may lead to unnecessary administrative costs and would be contrary to community expectations regarding the finality and certainty of administrative decision-making.

Fairness in granting an extension of time as between the applicant and other persons in a similar position

1. The Tribunal finds that it would not be fair to others to grant Mr Felangan an extension of time. This is largely because Mr Felangan has rested on his rights, his application his limited merit and the apparent prejudice to [Ms A].  

Whether it would be proper to grant an extension of time

1. The Tribunal considers that in the circumstances of this case it would not be proper to grant Mr Felangan an extension of time.

Conclusion

1. Mr Felangan requested a review out of time. He has not provided an adequate explanation for the delay. There is no apparent merit to his application. Weighing up all the relevant factors, the Tribunal is not persuaded that it is fair and equitable to extend the permissible time in which Mr Felangan can lodge his application.

2. In the circumstances, the Tribunal has decided to refuse to grant an extension of time to Mr Felangan.