Goddard and Child Support Registrar (Child support)

[2019] AATA 5117

Goddard and Child Support Registrar (Child support) [2019] AATA 5117 (7 October 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/PC017014

APPLICANT:  Mr Goddard

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member W Budiselik

DECISION DATE:  07 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 - no merit - 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. On 25 January 2019, the Department for Human Services Child Support (the department) wrote to the applicant advising him for the purposes of his child support assessment it had updated his income estimate to $76,232 for the period 1 October 2018 to 30 June 2019. The applicant’s previously provided income estimate for the period 1 July 2018 to 30 June 2019 was $0.

2. On 15 May 2019, the applicant lodged an objection to the department’s decision to accept the income estimate and an application for an extension of time within which to lodge the objection. On 28 June 2019, the department advised the applicant it had refused to extend the time for him to object to the decision made on 25 January 2019, and that it would therefore not consider his objection.

3. On 25 July 2019, the applicant lodged an application for a review of the department’s decision with the Administrative Appeals Tribunal (the tribunal). On 7 October 2019, the tribunal conducted a hearing into the application. The applicant attended the hearing and provided testimony. Prior to the hearing the department provided the tribunal and the applicant with a bundle of documents taken from the applicant’s departmental file (folios 1‑368).

ISSUES

1. 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).

2. The issue which arises in this case is whether or not to grant the applicant’s request for an extension of time to lodge an objection to the original decision.

CONSIDERATION

1. Part VII of the Act is about the procedures related to internal (i.e. within the department) objections made for certain decisions. Section 80 of the Act provides that a person may lodge with the Registrar an objection in writing to particular decisions, including a decision made under subsection 63AE(1) of the Assessment Act (which deals with the Registrar determining a new year to date income amount). Section 81 is about time limits on lodging objections and provides that a person has 28 days in which to lodge an objection after a notice of the decision is served on them. Section 82 provides for a person to apply for an extension of time to lodge an objection after the 28-day period has elapsed. Section 83 requires the department to either grant or refuse an extension of time application and serve notice in writing of the decision.

2. If the department refuses the extension of time application, the person applying may apply to the tribunal for review (item 1 of the table in subsection 89(1) of the Act).

3. The applicant was advised about the outcome of the original decision in a letter from the department dated 25 January 2019. Given the applicant lodged his objection more than 28 days after he was served with notice, the tribunal is satisfied an extension of time is required for the objection to be considered.

4. The tribunal is required to consider whether or not it is reasonable or proper for an extension of time to be granted to the applicant to lodge his objection to the decision. From other decisions, which provide guidance to the tribunal on this matter, it is clear that generally the statutory time limit of 28 days is to be enforced unless there are acceptable reasons for departing from this prescribed timeframe.

5. A consideration of other relevant authorities establishes that when considering matters relating to 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 department’s letter to the applicant dated 25 January 2019 set out:

   You can ask for a review of 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.

12.The website link sets out information about the objections process, including the following:

If you want to object to our decision to change the care percentage, call the Child Support general enquiries line.

For all other objections use the Objecting to a Child Support decision form (emphasis added). …

Deadlines

You have 28 days to object to a decision we make that’s not about a care percentage. This starts from the day you get the decision letter. We need to get your objection letter or form on or before the deadline date (emphasis added).

13.The applicant said he thought he had objected to the decision of 25 January 2019 within time when he had a discussion with an officer from the department on 19 February 2019. The department’s records do not support the applicant’s recollection that he advised the officer he wished to object to the decision of 25 January 2019.

1. On 19 February 2019, the department wrote to the applicant advising him it had updated his income estimate for the period 19 February 2019 to 30 June 2019 to $40,150.

2. The tribunal is satisfied it was the applicant’s responsibility to act on the information provided in the letter sent to him on 25 January 2019 and to access the relevant information about the requirements associated with lodging an objection to the decision set out in the letter.

3. The applicant told the tribunal it was only in the context of another discussion with an officer from the department on 18 April 2019 that he was advised there was not an objection in play in respect of the updated income estimate. At this time he was informed that if he wanted to object he needed to do so in writing, which he did. He lodged the objection form on 15 May 2019.

4. Given the information available to him and set out in the letter dated 25 January 2019, the tribunal finds the applicant does not have a reasonable excuse for the delay in lodging the objection. The tribunal is satisfied he ignored the information set out in the letter and rested on his rights.

Merits of the application

1. In considering the merits of the case, it is not appropriate for the tribunal to form a conclusive view in extension of time proceedings. Rather, the tribunal needs to consider whether the applicant has an arguable case.

2. The department obtained information about the applicant’s income from the applicant’s employer and used this information to determine another income amount.

3. The applicant understood he was under an obligation to update the department about his income when he returned to work. The applicant returned to work and did not update his income. The applicant’s former partner asked the department to assess the applicant’s employment income. The applicant’s reason for not updating his income was that he concluded such information was not relevant to the private child support agreement. However, the applicant appreciated it was relevant to another child support case in which he was also the paying parent.

4. The applicant provided a written statement to the tribunal in which he set out:

   In the few months preceding February, I had been working an average of 60 hours a week and wasn’t paying attention to my bank accounts…I learned that 6 of the first eight weekly pays 2019, only netted me a disposable income of … despite working 14x12 hour shifts per 3 week cycle, plus 10 – 12 hours on a second job.

   The applicant explained to the tribunal after this period when he was working long hours, he then became unwell and reduced his workload.

5. The tribunal explained to the applicant that his income for a period is annualised and on the basis of his evidence it seemed as though the information provided by his employer, that his income was higher than he later estimated, was probably correct. The applicant agreed in the early part of his employment (from 23 September 2018) that his annualised income was higher than he estimated on 19 February 2019. The applicant had not calculated what the annualised estimate for the period he wished to dispute might have been.

6. The applicant did not identify any errors in the way the department had applied the provisions relating to income estimates.

7. The tribunal did not identify merit in the objection application.

Prejudice to the other party and the wider public

1. The tribunal must also consider the potential prejudice to the parent to whom the applicant pays child support and to the wider public.

2. The tribunal considers the parent to whom child support is paid should ordinarily be able to rely on the child support assessment once the period for objection has passed. 

3. The tribunal notes the other party would not be required to provide information if the extension of time for the objection is granted, so she would not be disadvantaged in this regard.

4. The tribunal also considered whether or not there would be prejudice to the general public if an extension of time was granted. Time limits for the review of administrative decisions set out in law should be observed as strictly as possible in order to assist the proper administration of legislation by government agencies. There is also a public expectation that there be a degree of certainty in relation to time limits, other than in circumstances permitted.

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

1. The department notifies parties that they can lodge an objection to a decision and that the parties have 28 days within which to lodge the objection. In this case when it provided this notification it provided the applicant with information about the legislative requirements for lodging an objection, namely that the objection needed to be in writing or on a form. The applicant did not review the information provided in the letter.

2. Most people comply within the 28 day timeframe. It is clear the statutory time limit is to be enforced unless there are acceptable reasons for the delay.  The tribunal cannot identify reasons why an exception to the prescribed time limit should be made in this case and as such it would not be fair to others to grant the applicant an extension of time so that his objection should be heard.

3. The tribunal referred the applicant to the department’s online guide for further information about the change of assessment process, as it seems he considers the administrative  assessment of his child support liability is unfair in his particular circumstances.

DECISION

The decision under review is affirmed.