Frith and Child Support Registrar (Child support)

[2019] AATA 563

Frith and Child Support Registrar (Child support) [2019] AATA 563 (15 February 2019)

DIVISION:  Social Services & Child Support Division

REVIEW NUMBER:  2018/MC015212

APPLICANT:  Mr Frith

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:  Member Hamilton-Noy

DECISION DATE:  15 February 2019

DECISION:

The Tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – refusal to grant an extension of time to object - applicant rested on his rights - no arguable 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. This application relates to a refusal by the Department of Human Services – Child Support (the Department) to grant an extension of time to object to a decision made by the Department in June 2018.

2. Mr Frith and Ms Frith are the separated parents of [Child 1].  On 20 July 2018 Ms Frith contacted the Department to apply for the registration of a child support case.

3. On 23 July 2018 an employee of the Department wrote to Mr Frith to advise that a decision had been made to accept Ms Frith’s request for the Department to collect ongoing child support payments and all of the outstanding child support for [Child 1].

4. Mr Frith objected to this decision in writing on 4 September 2018 and lodged an extension of time request to have the matter determined out of time with the Department on 24 September 2018.

5. On 10 October 2018 an employee of the Department made a decision to refuse to extend the time in which Mr Frith could object to the decision of 23 July 2018.

6. On 11 October 2018 Mr Frith made application to the Administrative Appeals Tribunal for an independent review of the decision to refuse the extension of time request.  The hearing was scheduled to be heard on 30 January 2019 at 11:30 am.  The Tribunal phoned Mr Frith at the time of the hearing and he stated to the Tribunal that he did not accept the authority of the Tribunal and repeatedly questioned the authority of the Tribunal member to hear the matter.  Mr Frith indicated to the Tribunal that he was not in a private area on his own and, when the Tribunal explained the hearing was required to be in private, questioned the authority of the Tribunal to insist on this.  Mr Frith would not indicate to the Tribunal that he had moved to an area that was private and, in these circumstances, the Tribunal considered that it could not proceed with the hearing, having regard to paragraph 21(2)(c) of the Child Support Review Directions which allows the Tribunal to give permission to make oral submissions by telephone unless making oral submissions in that way could adversely affect the privacy of the hearing. 

7. The Tribunal wrote to Mr Frith on the day of the hearing and advised that he could make written submissions if he wished to do so, and that these were to be provided to the Tribunal by close of business on 13 February 2019.  Nothing was received from the applicant during the deferral period and on 15 February 2019 the Tribunal proceeded to make a decision on the information before it.

CONSIDERATION

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).

2. Section 81 of the Registration and Collection Act requires that a person must lodge an objection to a decision of the Registrar within 28 days after a notice of the decision is served on the person and section 80 provides that such an objection must be in writing. Where the period for lodgement has ended, the person may send the objection to the Registrar along with an application requesting that the objection be treated as if it was duly lodged, that is, that it was lodged within the allowed time (section 82 of the Registration and Collection Act).

3. Section 83 of the Registration and Collection Act provides that the Registrar of the Department must make a decision to either grant or refuse an application for an extension of time. If granted, the Registrar must deal with the objection and, if refused, the Registrar must give written notice of the decision and must in the decision advise that if the person disagrees with the extension of time decision, they may seek a review of that decision by the Tribunal.

4. In Brisbane South Regional Health Authority v Taylor [1996] HC 25 (Brisbane South Regional Health Authority), the High Court, in dealing with an extension of time case and the general concept of time limitation periods, noted that while an extension of time is the exception to the general rule, there are legislative provisions which, in the circumstances of an individual case, may indicate that justice is served by the general rule being overruled.

5. In making this decision, the Tribunal considered the guiding principles for the exercise of a discretion to allow an extension of time as set out in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 (Hunter Valley Developments).  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 in general, applications or proceedings commenced outside of a prescribed time limit will not be considered.  The Court also said that there must be an acceptable explanation for the delay and that it must be fair and equitable in the circumstances to extend time.  The Federal Court identified six factors to take into account when deciding whether to grant an extension of time.  In the context of more recent child support cases, for example, Vickers and Child Support Agency [2006] AATA 112 and McConnell and Child Support Registrar [2005] AATA 342, the Administrative Appeals Tribunal has applied the principles set out in the Hunter Valley Developments case and Re Mulheron and Australian Telecommunications Corporation [1991] AATA 673.

6. These authorities establish that when considering whether to exercise the discretion to allow an extension of time, a decision-maker should consider and balance a range of factors including:

   ·      The reasons for the delay and whether the applicant rested on their rights or took action to make the decision-maker aware that the decision was being contested;

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

   ·      Any wider prejudice to the general public;

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

   ·      The merits of the substantive application;

   ·      Whether it is proper to grant an extension of time.

7. In light of the approach by the Administrative Appeals Tribunal in recent times and mindful that the Hunter Valley Developments case factors are only a “guide”, the Tribunal has taken these factors into account in determining whether the extension of time should be granted in this case.

8. The Tribunal found from the Department’s documents that Mr Frith was advised of the original decision by correspondence sent to him from the Department dated 23 July 2018.  The correspondence notified him that a decision had been made to accept the request to collect ongoing child support payments and outstanding child support for [Child 1].  The letter noted the following:

   Call us if you think this decision is incorrect because information was not provided or taken into account; or the legislation has not been applied correctly.  We will check the details and explain the decision.  You can ask us to review the decision (we call this an objection) within 28 days from the date you receive this letter.  For more information about how to object go to our website humanservices.gov.au/reviewsandappeals

9. The Tribunal noted that the Department had telephoned Mr Frith on the date the letter was sent, 23 July 2018 (folio 10) where the letter was discussed and Mr Frith was advised of his objection rights to the decision and was referred to the Department of Human Services website for further information.

10. The Tribunal noted that Mr Frith had contacted the Department on 1 August 2018 regarding his dispute with another aspect of the Department’s decision making (care) and was advised at that point that an objection needed to be made as a decision had been made; and that an objection could not be lodged over the phone (folio 13).

11. Mr Frith lodged an objection to the decision on 4 September 2018.  The Child Support Guide at 4.1.4 states that the Registrar will presume that a letter was posted to an individual on the fifth business day after the notice was produced; and was received by an individual four business days later.  Taking this into account, the letter of Monday 23 July 2018 is presumed to have been received by Mr Frith on Friday 3 August 2018.  The 28 day period in which to object expired on 31 August 2018.

12. While the Tribunal accepted that Mr Frith was overseas during August 2018, the Tribunal considered that he had been advised by letter and during a phone call of the requirements for a written objection and the time frame in which to object and considered that he had rested on his rights in relation to the decision of 23 July 2018.  In so finding, the Tribunal noted that Mr Frith’s application had not been made significantly out of time.

13. As to the merits of the application, the Tribunal noted that section 25 of the Registration and Collection Act allows a payee to apply to the Registrar for the registration of a maintenance liability under the Act. Subsection 25(2) of the Registration and Collection Act requires the liability to be registered, subject to exceptions set out in section 25 which do not apply in this case. The Tribunal found that there is little merit in Mr Frith’s objection to the case being registered with the Department.

14. A second aspect of the Department’s decision related to arrears and the Tribunal had insufficient information before it to make clear findings about the merits of this aspect of the decision.  However, the Tribunal noted that Mr Frith’s stated reasons for applying to the Tribunal (folio 1) went to Department decisions other than the decision that forms the basis of this application, namely, that he has a private agreement with the other party and that the Department had used a wrong income for him from three years ago.  The Tribunal did not have the benefit of speaking to the applicant at the scheduled hearing time and he did not provide submissions following the hearing date.  There is nothing before the Tribunal confirming that Mr Frith disputes this aspect of the decisions and the reasons for this dispute.

15. The Tribunal found that there would be some, but not significant, prejudice to the other party if she were required to provide further information to the Department during an objections process.  The Tribunal considered that there would be some prejudice to the wider public, on the basis that the public expects decisions by government agencies to be finalised in a timely manner.  The Tribunal found that there would be no unfairness as between the applicant and others in a similar position who are also able to have a request for an extension of time considered on the merits of their particular case.

16. The Tribunal took into account the principles established in Brisbane South Regional Health Authority and in Hunter Valley Developments Pty Ltd, and had particular regard to the applicant having rested on his rights in relation to the objection and the little, if any, established merit in the application.  On balance, the Tribunal concluded that it is not proper to grant the extension of time sought in this case.  The Tribunal therefore found that the Department’s decision is legally correct and this decision is affirmed.

DECISION

The Tribunal affirms the decision under review.