GGPC and Child Support Registrar (Child support second review)

[2016] AATA 395

GGPC and Child Support Registrar (Child support second review) [2016] AATA 395 (2 June 2016)

Division	GENERAL DIVISION
File Number(s)	2015/0329
Re	GGPC
APPLICANT
And	Child Support Registrar
RESPONDENT
And	CWCV
OTHER PARTY

DECISION

Tribunal	Ms A F Cunningham, Senior Member
Date	2 June 2016
Place	Hobart

The decision under review is affirmed.

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Ms A F Cunningham, Senior Member

It is noted that publication of this decision is approved by the Administrative Appeals Tribunal pursuant to s 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).

CATCHWORDS

Child support – extension of time – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975

CASES

Hunter Valley Developments v Cohen (1984) FCA 176

WRITTEN REASONS FOR ORAL DECISION

Ms A F Cunningham, Senior Member

1. The Applicant is seeking a review of an objection decision made by a delegate of the Child Support Registrar which adjusted a decision of the Senior Case Officer such that for the period 14 February 2013 to 30 June 2014 his adjusted taxable income amount is fixed at $65,000. The decision is dated 2 October 2013. The Applicant’s application requesting a review by the Social Security Appeals Tribunal (SSAT) was not made until 15 October 2014, over 12 months post the date of the delegate’s decision.

2. On 11 December 2014 the SSAT refused the Applicant’s application for an extension of time to lodge his application for review of the Agency’s decision. On 20 January 2015 the Applicant lodged an application for review of the decision of the SSAT with this Tribunal.

3. Due to extensive pre-hearing procedures including inspection by the respondent and the other party of numerous documentation submitted by the Applicant in support of his application, the hearing of the Applicant’s application to extend time was not undertaken until this day, 2 June 2016. Whilst the Tribunal was prepared to determine the matter on the basis of the material before it, the Applicant requested a hearing. The Applicant appeared on his own behalf, the Child Support Registrar (CSR) was represented by Brian Sparkes and the Other Party appeared on her own behalf.

4. The T documents were received into evidence pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Relevant documentation submitted by the Applicant was identified and admitted into evidence.

5. In his application for review the Applicant states that he did not know the correct procedure for appealing a CSA decision until he was notified by Senior Case Officer Caroline Anderson. He requested that the Tribunal refer to his attachments and referred to the “traumatic sickness and death” of both of his parents.

6. The material submitted by the Applicant refers to the history of his dealings with the Child Support Registry. He maintains that not all relevant information was taken into account by the delegate considering his objection. The Applicant also contended that he was suffering physically and mentally during the relevant period and provided details of his stress and grief suffered as a result of the ill health and passing of his parents within a period of 16 months. This latter information was subject to a confidentiality order.

7. In response to the Applicant’s contention that that there is merit in his substantive application for review of the objection decision, Mr Sparkes informed the Tribunal that the CSR does not contest the finding of the SSAT where it concluded at paragraph 18 of its decision that there is prima facie merit, that is, an arguable case in the Applicant’s submission. The SSAT went on to note however “that this merit is not sufficient of itself to make it proper to grant an extension to the time available”.

8. Without a comprehensive review of the decision, the documentation and submissions of the Applicant, the Tribunal does not contest the conclusion of the SSAT and accepts the CSR‘s submission in this regard. However as correctly pointed out by the SSAT, the issue of merit to the substantive application is but one factor to be considered in the exercise of a discretion as to whether or not to extend time.

9. The Applicant claims that he was unaware of the correct procedure to appeal a CSA decision until advised by Senior Case Officer, Caroline Anderson. He claims that it was his intention to have the matter reviewed by the Ombudsman. Despite this intention the Applicant made no approach to the Office of the Ombudsman. Whilst this may have been the Applicant’s intention, the Tribunal does not accept that he was not aware of the appeal process. Details of a person’s right to appeal are attached to the Objection Decision of 2 October 2013 which was forwarded to the Applicant under cover of letter dated 3 October 2013 and which specifically states the following:

   “If you think this decision is incorrect you have a limited time frame in which to ask the Social Security Appeals Tribunal to review the decision. For more information you can go to their website SSAT.gov.au or call the Social Security Appeals Tribunal on 1800 011140…”

10. The evidence is that the Applicant was orally advised of the outcome of the objection decision and of his appeal rights. The Applicant does not dispute having received the subject correspondence and a copy of the Objection Decision. As the SSAT notes in its decision at paragraph 16:

    “Subject to the decision on 2 October 2013, the Applicant lodged an application for a departure from the administrative assessment on 7 February 14 but did not seek to exercise his rights of review regarding the previous decision of the department made on 2 October 2013.”

11. In response to the contention that he took no action to object to the Objection Decision the Applicant referred to a letter dated 21 July 2014 in which he states that he is pursuing the services of the Ombudsman. This letter however relates to a decision dated 15 July 2014 and it was the Applicant’s evidence that he did not in fact contact the office of the Ombudsman. There is no evidence that the Applicant contested the Objection Decision of 2 October 2013.

12. Whilst the Tribunal can accept that the illness and subsequent death of the Applicant’s parents caused him much distress and grief, the Tribunal does not accept that such grief and distress prevented him from lodging an application for a review until 15 October 2014. The Applicant advised that his father died in September 2012 and that his mother died on 15 January 2015. It is noted that the Other Party claims that the date of the Applicant’s mother’s death was 15 January 2014.

13. At T10 page 169 there is a letter from the Applicant dated 30 January 2014 received by the CSA on 7 February 2014 in which he provides financial information and contests the calculation of his child-support payments. This is not consistent with the Applicant’s claim that he was not in a position to lodge an application for review of the Objection Decision on account of the stress and grief suffered as a result of the death of his parents. Nor does this correspondence refer to the Applicant’s intention to consult the services of the Ombudsman regarding the Objection Decision.

14. In considering an application for an extension of time the Tribunal has regard to the criteria adopted by the courts and other Tribunal’s particularly those identified by the Federal Court in Hunter Valley Developments v Cohen (1984) FCA 176. They are as follows:

    ·that the Applicant show an acceptable explanation for the delay and that it is fair and reasonable in the circumstances to extend time;

    ·action taken by the Applicant to make the decision-maker aware that he contests the finality of the decision and has not rested on his rights;

    ·any prejudice to the respondent, including any prejudice in defending the proceedings, occasioned by the delay;

    ·any prejudice to the wider public;

    ·the merits of the substantive application; and

    ·consideration of fairness as between the Applicants and other persons otherwise in a like position.

15. For the reasons identified above the Tribunal finds that the Applicant did not make the decision-maker aware of his intention to seek a review of the decision despite receiving advice as to his appeal rights to the SSAT.

16. The Federal Court further said in its decision that the prescribed period of 28 days is not to be ignored and that it is the prima facie rule that proceedings commenced outside that period will not be entertained. To grant the extension of time sought which is in excess of a period of 12 months, for the Applicant to file an application for a review of the delegates decision, would be contrary to the above stated principle that proceedings should be instituted within the statutory timeframe provided. The objective being to ensure finality of decision-making and avoid prejudice to the parties involved. The Tribunal considers that in this case it would be unfair and unreasonable to expect the other party to respond to the Applicant’s appeal of the objection decision which was made almost 20 months ago and by the time the matter could be listed for hearing, may be almost a period of two years.

17. Although there may be some merit to his application for review, the Tribunal does not consider that the Applicant has satisfactorily explained his reason for the delay in lodging an application for review and does not consider that it is fair and equitable in the circumstances to extend time. The Applicant was clearly provided with the relevant information regarding his right to appeal but decided to pursue another course of action.

18. For all of the above reasons the Tribunal affirms the decision under review.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham, Senior Member

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Administrative Assistant

Dated: 16 June 2016

Date(s) of hearing	2 June 2016
Applicant	In person
Solicitors for the Respondent	Mr Brian Sparkes, Program and Litigation Review Branch
Other Party	In person