Gettins and Child Support Registrar (Child support)

[2018] AATA 3080

Gettins and Child Support Registrar (Child support) [2018] AATA 3080 (3 July 2018)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2018/SC013812

APPLICANT:  Ms Gettins

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                03 July 2018

APPLICATION:

An extension application made on 5 April 2018 asking the Administrative Appeals Tribunal (AAT) to consider the application for AAT first review of a decision of the Child Support Registrar on 16 February 2018 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS
Child support - Extension of time to apply for review of a departure determination - Reasonable explanation for the delay - Little merit in relation to grounds for departure - Decision to refuse the extension of time

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.

STATEMENT OF REASONS

1. On 5 April 2018 Ms Gettins lodged an application with the Administrative Appeals Tribunal (the Tribunal) for an extension of time for review of a child support decision made on 16 February 2018.  The matter was considered on 28 June 2018 on the papers (consistent with the Tribunal’s Child ‘Support Review Directions’).  The Tribunal had before it a bundle of papers provided by the Department of Human Services, Child Support (the Child Support Agency).

2. Ms Gettins and [Mr A] are the parents of [Child 1] (born December 2004) and [Child 2] (born February 2008) and Ms Gettins is the parent liable to pay child support under the assessment.  Child support was first registered for assessment on 23 September 2013.

3. On 21 August 2017 Ms Gettins applied for a change to the administrative assessment on the grounds of her necessary commitments of self-support (the ground commonly known as Reason 7) and the earning capacity of [Mr A] (the ground commonly known as Reason 8B).

4. On 8 November 2017 the Child Support Agency refused to change the assessment on the basis that a ground was not established (the original decision).

5. On 19 December 2017 Ms Gettins objected to the original decision and on 16 February 2018 the objection was disallowed on the basis that a ground was not established (the objection decision).

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

7. The issue which arises in this case is whether or not to grant Ms Gettins’ request for an extension of time to submit an application for review of a child support decision.

8. Part VIIA Division 2 of the Act sets out the procedures for applying to the Tribunal for a review of an objection decision made by the Child Support Agency as well as applying for an extension of time for such a review in the event the application is not made within the prescribed period.

9. Subsection 29(2) of the Administrative Appeals Tribunal Act 1975 establishes that an application for review must be made within 28 days of being served with notice of the decision.

10. If the 28 day period to apply for review has ended then a written application for an extension of time can be made under section 91 of the Act. Ms Gettins was advised about the outcome of the objection decision by electronic means on 16 February 2018. Given Ms Gettins lodged her application more than 28 days after she was served with notice the Tribunal is satisfied that an extension of time was required.

11. Under subsection 92(1) of the Act, the Tribunal must consider and grant or refuse an extension application. In doing so, the Tribunal considers the guiding principles for the exercise of discretion to allow an extension of time as set out in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186. In that case, the Federal Court said an extension of time should not be granted unless satisfied it was proper to do so, noting that, in general, applications or proceedings commenced outside of a prescribed time limit will not be considered.

12. A review of other relevant authorities establishes that when considering whether or not 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 they will experience in providing evidence as a result of the delay;

    ·     any prejudice to the general public; and

    ·     fairness in granting an extension of time.

Reasons for the delay

1. The Tribunal finds that Ms Gettins’ application for an extension of time on 5 April 2018 in relation to the objection decision made on 16 February 2018, which she received by electronic means, was approximately 20 days out of time.

2. In seeking an extension of time, Ms Gettins explained she did not receive an email through her myGov account about the decision and contacted the Child Support Agency on 6 March 2018 to instead request a copy by post.  Ms Gettins said she eventually received the letter from the Child Support Agency on 14 March 2018.  Ms Gettins said she needed to see the decision made by the Child Support Agency before submitting her appeal to the Tribunal.

3. Evidence provided by the Child Support Agency confirms a voicemail message was left for Ms Gettins by a child support officer on 16 February 2018 advising her the objection was disallowed.  When Ms Gettins did not receive the objection decision she made contact with the Child Support Agency on 6 March 2018 and said she was unable to access her online correspondence.  The Child Support Agency then sent notification of the objection decision by post and changed Ms Gettins’ method of receiving correspondence from email to surface mail.

4. The Tribunal notes that while it was Ms Gettins’ preference to receive correspondence from the Child Support Agency by electronic means and notification of the objection decision was sent to the email address recorded for her in the system, this email was never received.

5. Further evidence from the Child Support Agency shows the email address nominated by Ms Gettins was not linked to an active myGov account.  A search by myGov operations did locate another email address in use by Ms Gettins which was linked to an active myGov account, however, there was no correspondence relating to the objection decision in that active account.  The Child Support Agency also advised that no SMS was sent to Ms Gettins’ mobile phone to alert her about correspondence relating to the objection decision.

6. While the onus is on Ms Gettins to ensure her contact details with the Child Support Agency are up-to-date, the evidence provided nonetheless confirms Ms Gettins was not aware she had received email correspondence about the outcome of the objection decision.  Ms Gettins was then proactive in seeking another copy of the decision from the Child Support Agency as soon as she became aware there was an issue with her myGov account.

7. Under the circumstances the Tribunal is satisfied Ms Gettins has provided a reasonable explanation for the short delay in applying to the Tribunal for a review.

Merits of the application

1. Ms Gettins is seeking a review of an objection decision which refused to change the administrative assessment on the basis that a ground for change was not established. 

2. The original decision made by the Child Support Agency found similarly.  It could not establish either that Ms Gettins’ capacity to provide financial support for the children was reduced because of her necessary commitments of self-support or that [Mr A] had an unexercised earning capacity which made the child support assessment unfair.

3. It is not a requirement in considering an extension of time application for the Tribunal to come to a final view about the substantive application.  Deliberation is instead given to whether or not the claim has the merit to justify an extension of time.

4. In her application for review to the Tribunal Ms Gettins stated that the Child Support Agency had made a mistake of fact and applied the law incorrectly.  She said that in justifying the claim that Reason 8B was not established, the Child Support Agency had stated that [Mr A] had not worked since the start of the child support case.  Ms Gettins said this was incorrect.  Ms Gettins also said the Child Support Agency failed to present any form of legal basis to define earning capacity solely with respect to previous earnings.

5. As Ms Gettins has restricted the comments in her application to the Tribunal to those relating to [Mr A]’s earning capacity, the Tribunal will consider this matter first.

6. In order to establish that [Mr A]’s earning capacity is greater than that reflected in the child support assessment and therefore renders the assessment unfair, all three compulsory criteria set out in subsection 117(7B) of the Assessment Act must be satisfied. Those three criteria are:

   (a) one or more of the following applies:

   ·the parent does not work despite ample opportunity to do so (subparagraph 117(7B)(a)(i));

   ·the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full-time work for the occupation or industry in which the parent is employed or otherwise engaged (subparagraph 117(7B)(a)(ii));

   ·the parent has changed his or her occupation, industry or working pattern (subparagraph 117(7B)(a)(iii)); and

   (b)  the parent's decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern is not justified on the basis of:

   ·the parent's caring responsibilities (subparagraph 117(7B)(b)(i)); or

   ·the parent's state of health (subparagraph 117(7B)(b)(ii)); and

   (c)  the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child (paragraph 117(7B)(c)). 

7. In considering the merits of Ms Gettins’ application, the Tribunal therefore conducted a review of the information used by the Child Support Agency in reaching this conclusion.

8. In relation to the first criterion, [Mr A] is in receipt of Centrelink benefits and is not currently working.  In order to qualify for the newstart allowance, [Mr A] must meet certain eligibility criteria including looking for paid work and reporting regularly to Centrelink.  [Mr A] informed the Child Support Agency he had worked part-time in the past but for medical reasons he could not continue and provided medical certificates to Centrelink to support this.  The Child Support Agency found that [Mr A] had not reduced his weekly hours of work to below full-time as records showed that he had not worked full-time since the start of the child support case.  [Mr A] has also not changed his occupation, industry or working pattern.  The Child Support Agency did not find the first criterion met.

9. As all three criteria must be satisfied, it follows that if one is not satisfied, then this ground for a change to the assessment cannot be considered.  The Child Support Agency was unable to find that all three criteria were met and did not consider [Mr A]’s earning capacity as a basis for changing the assessment.

10. Ms Gettins believes this is incorrect as [Mr A] has worked in the past and she also argues that earning capacity should not be defined solely with respect to previous earnings.

11. There is no evidence suggesting [Mr A] has worked full-time since the child support assessment began. Furthermore, the determination of earning capacity is set out clearly in the Assessment Act and requires all three criteria to be satisfied.

12. The Tribunal also considered the evidence provided in relation to Ms Gettins’ necessary commitments of self-support.  While finding in both the original decision and the objection decision that Ms Gettins did have such necessary commitments, the Child Support Agency concluded these did not significantly affect her ability to maintain the children.  The Tribunal is satisfied the conclusion reached by the Child Support Agency was reasonable given the evidence provided.

13. The test of merit has alternatively been expressed as whether, were it to proceed, the application for review “would have good prospects of success” (Smith and Commissioner of Patents [2012] AATA 60 at [29]–[31]).

14. Based on the evidence available, the Tribunal finds Ms Gettins’ application for review would not have good prospects of success either on the ground of [Mr A]’s earning capacity or Ms Gettins’ necessary commitments of self-support.

15. The Tribunal therefore considers Ms Gettins’ application has little merit.

Potential prejudice to [Mr A] and the wider public

1. [Mr A] should ordinarily be able to rely on the child support assessment once the period for objection has passed.  On the other hand the application made by Ms Gettins to the Tribunal is approximately 20 days out of time.  While it is not likely that the passage of time would hinder his ability to put forward his case should there be a review of the substantive decision, the outcome of a successful objection may be an overpayment to [Mr A].  On balance, the Tribunal does not consider that [Mr A] would be significantly disadvantaged if an extension of time to lodge an objection was granted.

2. Time limits for the review of administrative decisions should be observed as strictly as possible in order to assist the proper administration of government agencies.  There is also a public expectation that there be a degree of certainty in relation to time limits, however, the law also allows for extensions of time.  In this case the Tribunal does not believe there would be significant prejudice to the general public if an extension of time to lodge an objection was granted.

Fairness in granting an extension of time as between Ms Gettins and other persons in similar positions

1. The Child Support Agency notifies parties that they can seek a review of decisions with the Tribunal and they have 28 days within which to submit a request for such a review.  Most people comply within the 28 day time frame.  It is clear the statutory time limit is to be enforced unless there are acceptable reasons for the delay.  The Tribunal finds that it would not be fair to others to grant Ms Gettins an extension of time to seek review of a decision in view of the statutory time frame which applies and the lack of merit to her application.

CONCLUSION

1. While Ms Gettins has provided a satisfactory explanation for the delay in applying for review of the objection decision, the Tribunal could find little merit to her application based on the evidence available.  This weighs heavily against the granting of an extension of time.

2. Having carefully considered the various factors which it must take into account, the Tribunal finds it would not be proper to grant an extension of time to seek review of the objection decision made on 16 February 2018 in the circumstances of this case.  Accordingly, the extension application is refused.