Godfrey and Child Support Registrar (Child support)

[2017] AATA 2865

Godfrey and Child Support Registrar (Child support) [2017] AATA 2865 (7 November 2017)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2017/SC012386

APPLICANT:  Mr Godfrey

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member W Budiselik

DECISION DATE:  07 November 2017

DECISION:

The decisions under review are affirmed.

Member W Budiselik

CATCHWORDS

Child support – Refusal to grant extensions of time to object – Particulars of the assessment – Fixed annual rates – Decisions 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. Mr Godfrey pays child support in respect of three child support cases (case numbers: [file number] registered [in] March 2005; [file number] registered [in] March 2007; and case number [file number] registered [in] January 2012).

2. [In] October 2016, the Department of Human Services – Child Support (the Department) wrote to Mr Godfrey in respect of each of the cases of child support advising him that his request to cease applying the fixed rate to his assessment had been declined. The letters each stated the reason for applying the fixed rate was because the Department was satisfied his income is more than $19,011 per year.

3. [In] May 2017, Mr Godfrey lodged with the Department written objections to the decisions. [Later in] May 2017, Mr Godfrey lodged requests for extensions of time with the Department within which to lodge his objections.

4. [Later in] May 2017, Mr Godfrey’s application for extensions of time within which to object was refused (the refusal decision) by the Department.

5. On 5 July 2017, Mr Godfrey lodged an application for a review of the Department’s decisions with the Administrative Appeals Tribunal (the tribunal).

6. On 16 August 2017, Mr Godfrey lodged applications to the tribunal for extensions of time within which to lodge his applications to the tribunal. On 24 August 2017, the tribunal (differently constituted) granted Mr Godfrey’ applications.

7. On 7 November 2017, the tribunal conducted a review into Mr Godfrey’ applications to the tribunal to review the Department’s decisions to deny his application for extensions of time within which to lodge objections. Mr Godfrey participated in the hearing via telephone conference. Prior to the hearing the Department provided Mr Godfrey and the tribunal with bundles of documents pertaining to each case of child support (folios 1 – 171, 1 – 83 and 1 – 95, respectively).

ISSUES

1. The statutory provisions relevant to these reviews are contained in the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).

2. The issues which arise in these cases are whether Mr Godfrey should be granted extensions of time to object to the Department’s decisions of [October] 2017.

CONSIDERATION

Issue: Should Mr Godfrey be granted extensions of time to object to the Department’s decisions of [October] 2017?

Timing of objection and application for extension of time

1. Under the Registration and Collection Act, apart from persons residing in particular foreign countries, objections must be lodged within 28 days of the day on which notice of the decision is given (section 81). An application outside that time can only proceed if the objector also applies for an extension of time in which to object and that application is granted (section 83).

2. The original decisions which are the subject of the Department’s refusal of an extension of time are the decisions of [October] 2016. Copies of the notices, of the same date, advising Mr Godfrey of the decisions are contained in the documents provided by the Department. Regulation 11A of the Child Support (Assessment) Regulations 1989 deems the service to have been effected at the time when the letter would be delivered, in the ordinary course of the post, unless the contrary is proved. The tribunal notes that under section 160 of the Evidence Act 1995, it is presumed that a posted letter is delivered four working days after being sent and considers that that period also represents the ordinary course of the post.  On that basis, the tribunal finds that notice of the decision was served on Mr Godfrey [in] November 2016. The 28 day period for the lodgement of an objection therefore ends [in] December 2016.

3. Mr Godfrey’ applications for extensions of time were received by the Department [in] May 2017, which is more than the 28 days allowed for a person to lodge an objection. Mr Godfrey’ objection can only proceed if he applied for, and the Registrar granted extensions of time under section 83 of the Registration and Collection Act.

4. In considering whether to exercise the discretion to extend the time for making an application for internal review, the tribunal decided that it is appropriate to have regard to the guiding principles set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. 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.

5. In Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42 O’Connor J outlined some principles to be applied in considering an application for an extension of time.

   The principles to be applied in considering an application for extension of time …are

   (i) prima facie proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so;

   (ii) it is relevant whether the applicant rested on his [or her] rights or took action to make the decision maker aware that the decision was being contested;

   (iii) any prejudice to the respondent that would be caused by granting the extension of time is relevant;

   (iv) any wider prejudice to the general public in terms of disruption to established practice is relevant;

   (v) the merits of the substantial application are relevant; and

   (vi) fairness of granting an extension of time as between the applicant and other persons in like position is relevant. 

6. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, the High Court in dealing with an extension of time 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 the facts of a particular case, may indicate that justice is served by the general rule being overturned.

7. In Comcare v A’Hearn (1993) 119 ALR 85 the Full Federal Court noted that there is no requirement that there must be an acceptable reason for delay:

   We note that the Tribunal used language that might be taken to suggest that it is a precondition for success in such an application that an acceptable explanation for the delay must be given. Although it is to be expected that such an explanation will normally be given, as a relevant matter to be considered, there is no rule that such an explanation is an essential precondition…

Reason for the delay and whether Mr Godfrey rested on his rights

1. Mr Godfrey told the tribunal the Department’s correspondence was correctly addressed to his parents’ [address]. Mr Godfrey did not contend he did not receive the notices. He said he could not recall the notices. The tribunal notes the Department recorded Mr Godfrey said he had not received the mail.

2. The tribunal regards the notices as received [in] November 2016. It also concluded Mr Godfrey read the notices sent to him [in] October 2016, and decided they were of limited relevance to his situation. The reason why Mr Godfrey underestimated the relevance of the notices was because he anticipated that when his adjusted taxable income was determined by the Australian Taxation Office it would be reconciled by the Department and he would either pay more child support or receive a refund in the amount paid.

3. He had since come to understand that the fixed annual rate decision set his child support for a period and that the Department did not have regard to his adjusted taxable income.

4. In the letter sent to Mr Godfrey [in] October 2016 the Department informed Mr Godfrey it was satisfied his current income ‘is more than $19.011 per annum’.

5. The tribunal noted from a Departmental file note that Mr Godfrey advised the Department that he:

   advised that his current income was $20,000 per annum...is a [occupation]...advised that he would ask for re-assessment again if his income changed down the track.

6. There is no evidence Mr Godfrey contacted the Department seeking to update his income estimate or discuss his concerns until [May] 2017.

7. The tribunal found Mr Godfrey did not have a reasonable excuse for not lodging an objection within the prescribed period and that he rested on his rights in that he did not raise any concerns with the Department about its decision in the period [November] 2016 to [May] 2017.

Merit of the objection

1. The tribunal did not conduct a substantive review of the decision. The decision in this case relates to a decision to apply a fixed annual rate of child support because Mr Godfrey estimated his income at a level below the amount set for self-support but at a level higher than the amount paid in parenting payment.

2. Mr Godfrey argued that his child support assessment should be reassessed on his actual income rather than his estimate.

3. The tribunal noted the Department’s papers reported Mr Godfrey had taken a holiday and that is why his income fell. Initially Mr Godfrey told the tribunal he had a holiday and then said the holiday was enforced because the work he undertook had dried up.

4. Mr Godfrey argued the only criterion the Department could use to determine his child support was his Australian Taxation Office determined adjusted taxable income. Mr Godfrey did not accept the tribunal’s indication that the process of determining the fixed annual rate should not apply to a person who is not in receipt of an income support payment. Instead the process relies on information other than solely their adjusted taxable income (see section 65A of the Child Support (Assessment) Act 1989 and the online Guide to Child Support)

5. The tribunal did not find on the face that there was merit in Mr Godfrey’s objection.

6. The tribunal put it to Mr Godfrey that if he believed his child support assessment was in the special circumstances of his case unfair, he could lodge a change of assessment application so his assessment could be reviewed. Mr Godfrey said that is what he thought he had done.

Prejudice to the other party and to the general public

1. The tribunal considered the prejudice to the other parent, should the extension of time be granted.

2. The tribunal was satisfied that the other party would not be prejudiced by the delay because the decision of the Department made [in] October 2016 did not rely on information provided by her.

3. However, the tribunal recognised the other party in this case would be prejudiced because she had relied on the Department’s earlier assessment and if Mr Godfrey’s objection was upheld she could be in debt or not entitled to arrears she may have relied upon.

4. The tribunal also considered whether there would be prejudice to the general public and whether it is in the public interest for the issues raised by Mr Godfrey in his objection to the officer’s decision to be determined.  The legislation prescribes timeframes in which to lodge objections. Parliament and the public have an expectation that these timeframes will generally be observed. Disregarding the limits placed on objection applications could undermine public confidence in the child support process and system.

Conclusion

1. The tribunal having weighed the various factors concluded the explanation for the delay in objecting in this case was not reasonable. Mr Godfrey had not considered the decision when it was provided to him, or sought further advice about it. He sought to object to the decision once he understood how the fixed annual rate of child support worked in the legislation. If Mr Godfrey had attended to the decision at the time he could have lodged his objection at the time.

2. The tribunal does not perceive a prejudice to the other party in respect of the information required to consider an objection to the decisions. However, the tribunal concluded the other party would be prejudiced because she could lose child support payments she had received or been promised, and that she had a right to anticipate no further changes to the child support assessment following the Department’s decision [in] October 2016.

3. The tribunal perceived a possible prejudice to the general public if extensions of time were granted after a person failed to read notices and to seek advice about their relevance.

4. In this case there is an alternative administrative pathway open to Mr Godfrey, which is for him to lodge a change of assessment application in relation to his current circumstances if he believes the child support assessment is unfair (see the grounds for seeking such a change at subsection 117(2) of the Child Support (Assessment) Act 1989).

5. On balance the tribunal found that it is not proper to grant the extension applications in the circumstances of this case.  

DECISION

The decisions under review are affirmed.