Gordon and Child Support Registrar
[2003] AATA 685
•22 July 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 685
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/1136
GENERAL ADMINISTRATIVE DIVISION ) Re PETER GORDON Applicant
And
CHILD SUPPORT REGISTRAR
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date22 July 2003
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and substitutes its own decision that the respondent is to treat the objection lodged on 20 September 2002 as having been lodged within the time allowed under section 98Z of the Child Support (Assessment) Act 1989.
(Sgd) RG Kenny
Member
CATCHWORDS
CHILD SUPPORT – extension of time to lodge objection to decision – exercise of discretion – factors to be considered – whether merits of substantive matter to be considered – relevant period for which reasons for failure to lodge an objection must be given
Child Support (Assessment) Act 1989 Parts 6A, 6B; ss 98Z, 98ZA, 98ZD, 98ZE
Re Savage and Child Support Registrar [2002] AATA 334
Re Young and Child Support Registrar [2001] AATA 790REASONS FOR DECISION
22 July 2003 Mr RG Kenny, Member Background
1. Peter Gordon (“the applicant”) separated from his former wife, Ms Coral Gordon, on 6 April 1994 and, on 7 April 1994, his former wife made an application to the Registrar of the Child Support Agency (“the respondent”) for a child support assessment in relation to their daughter. The application was accepted by the respondent and the applicant was assessed as being liable for child support from 6 April 1994.
2. On 12 December 2001, the applicant applied to the respondent for a change of assessment on the basis of the significant costs he was incurring in gaining contact with his daughter. The matter was determined by a senior case officer as delegate of the Child Support Registrar who also determined a cross-application by the applicant’s former wife for departure from the original order on the basis that the assessment did not take into account the income, earning capacity, property and financial resources of the applicant.
3. On 19 February 2002, the senior case officer issued a notice of decision in the following terms:
“1. That there by a change to the administrative assessment of child support.
2.That for the period from 1 November 2001 to 31 January 2003 Peter Gordon be assessed to pay child support at an annual rate of $5,545.00.”
4. The effect of that decision was to increase the applicant’s liability for child support. The senior case officer, in setting out her reasons for the decision, found that the applicant had established that the costs associated with his having contact with his daughter exceeded the relevant statutory threshold necessary to establish a ground of departure. Nevertheless, she also determined that his former wife was successful in her cross-application by finding that the applicant’s taxable income did not give an accurate reflection of his income, earning capacity, property and financial resources. In the result, despite the finding in favour of the applicant in relation to the costs of contact, the senior case officer increased the child support assessment on the basis that this outcome was just and equitable and otherwise proper.
5. On 21 February 2002, a letter was sent to the applicant with the new assessment enclosed. On 20 September 2002, a letter was sent to the respondent by Michael Lynch & Associates, Solicitors acting on behalf of the applicant. This was an objection in relation to the decision of the respondent.
6. On 3 October 2002, the Regional Registrar of the Child Support Agency wrote to the applicant’s solicitor acknowledging receipt of the letter of 20 September 2002 and noting that it was lodged outside the relevant timeframe for the lodging of an objection. In that letter, the Regional Registrar determined that no extension of time would be given.
7. On 19 December 2002, the applicant sought review of that decision not to extend time with the Administrative Appeals Tribunal (“the Tribunal”).
appearances
8. The applicant was represented by Mr J Linklater-Steele of Counsel and the respondent was represented by Mr N Harden.
9. At the hearing, the following material was taken into evidence:
§exhibit 1 the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents T1-T15);
§exhibit 2 a statement, dated 28 May 2003, by the applicant (with annexures A–D);
§exhibit 3 a statement, dated 28 May 2003, from Shirley Ann Gordon, the applicant’s wife; and
§exhibit 4 a statement of facts and contentions completed on the applicant’s behalf and lodged with the Tribunal on 2 June 2003.
Issues and Legislation
10. Under Part 6A of the Act, the Child Support Registrar may make a departure order from administrative assessment of child support. It was this procedure which was followed by the senior case officer in making the determination on 19 February 2002 as a delegate of the Registrar.
11. Under Part 6B of the Act, an objection procedure is set out and this enables a person in the applicant’s position to lodge with the Registrar an objection to the decision that was made. Subsection 98X(1) of the Act requires that the objection be in writing and subsection 98Z(1) of the Act provides that it must be lodged within 28 days after service of notice of the decision on the person. Section 98ZA of the Act provides that an objection must state fully and in detail the grounds of objection relied on. Provision is made for the extension of time for objecting in section 98ZD of the Act which reads:
“(1) If the period for lodging an objection under this Part has ended, a person may lodge the objection with the Registrar, together with a written application asking the Registrar to consider the objection in spite of the ending of the period.
(2) The application must state the reasons for the person's failure to lodge the objection within the period required by this Part.”
12. Where an application for extension of time is made, the Registrar is required to consider the application and the person aggrieved by the Registrar’s decision may, pursuant to subsection 98ZE(7) of the Act, apply to the Tribunal for review of that decision.
13. As noted above, the Regional Registrar determined that the applicant’s objection to the senior case officer’s decision was outside the relevant 28 day timeframe and an extension of time was not granted. The issue for the Tribunal is whether such an extension should be granted in this case.
Applicant’s Evidence
14. The applicant did not give evidence and was not required for cross-examination by the respondent. In his statement (exhibit 2), he said he received the decision on 25 February 2002 and wrote to the respondent in a letter dated 17 March 2002 (see annexure B to exhibit 2) in the following terms:
“In reference to your letter received by me on the 25th February 2002. Please be advised that I am objecting to the decision reached as a number of your statements are untrue, unfounded and purely based on innuendo either by yourself or Mrs Gordon.
I am currently making an appointment to see my solicitor and will advise you in writing of my objections in due course.”
15. The applicant said he received a telephone call on 8 April 2002 from the respondent in which reference was made to that letter as not being a valid objection. The applicant was also advised that he was out of time and that he would need to lodge a written request for an extension of time when he lodged the valid objection. The applicant said, at that time, that he informed the respondent that he would be attending upon a solicitor that week in relation to the matter. He said that, during that week, he then attended, with his present wife, the office of solicitor Derek Cronin of Tucker & Associates, Solicitors and were referred to Robert Bax & Associates, Solicitors. He said that he and his wife then attended upon that firm where they spoke to Andrew McGinness, solicitor.
16. The applicant said that he was advised by Mr McGinness that he acted solely in personal injury matters and that Robert Bax would act for him in relation to the objection to the respondent. He said that he and his wife provided all of their material in relation to the objection to Mr McGinness and were informed that it would be dealt with by Mr Bax immediately.
17. The applicant said that he contacted Robert Bax & Associates a week later but was advised that Mr Bax was on holidays.
18. The applicant said that, on 15 May 2002, his accountant, Barry Helton of Barry Helton & Company, drafted a letter to the respondent in relation to the respondent’s decision concerning his assessment and this was forwarded to Robert Bax on 21 May 2002. He referred the Tribunal to a copy of this draft (annexure C of exhibit 2).
19. The applicant said that, throughout this period, he believed that Robert Bax & Associates, Solicitors, were negotiating with the respondent on his behalf in relation to the objection. He said that several phone calls were made to the firm of solicitors but that Mr Bax was not able to be contacted. He said that, in August 2002, his wife, on his behalf, requested that the file in the matter be returned to them and that, after a few weeks delay during which he had been told that the file could not be found, a courier attended the premises of the firm and collected the file.
20. The applicant said that he then instructed his present solicitors, Michael Lynch & Associates, to act on his behalf and that, since that time, matters have progressed to the present stage.
Evidence of Shirley Anne Gordon
21. Mrs Gordon, the applicant’s wife, did not give oral evidence and was not required for cross-examination by the respondent. Her statement (exhibit 3) includes the following:
“4.During the week beginning 8 April 2002, my Husband, Peter Gordon and I attended upon Mr Andrew McGinness of Robert Bax & Associates, Solicitors and instructed him to lodge an Objection with the Child Support Agency together with a written request for an extension of time. We were informed by Mr McGinness that as he did not practice in this area, and that Mr Bax would attend to the lodging of that Objection immediately. (sic)
5.I telephoned the office of Robert Bax & Associates a week later to speak to Mr Bax, however I was advised that Mr Bax was unavailable. I left a detailed message at his office, chasing the status of the Objection.
6.From April 2002 until approximately August 2002, my Husband and I were informed by staff at Messrs Robert Bax & Associates, Solicitors, that the matter was being attended to and therefore we believed that Messrs Robert Bax & Associates, Solicitors, were negotiating with the Respondent regarding the Objection. During this time my Husband and I telephoned the offices of Messrs Robert Bax & Associates, Solicitors, on a weekly to fortnightly basis chasing the status of the Objection.
7.In August, 2002, my Husband and I requested that the file be returned as despite assurances, Mr Bax had failed to attend to the lodgment of the Objection. I advised Messrs Robert Bax & Associates, Solicitors, that we needed to secure new Solicitors and demanded the return of the files, by courier. Messrs Robert Bax and Associates initially could not locate the file and failed to provide the file for approximately three (3) weeks until such time as I arranged for a courier to attend and collect the file.”
Applicant’s Submission
22. Mr Linklater-Steele submitted that the applicant had fulfilled a pro-active role in seeking to object to the decision. He referred to the letter written on 17 March 2002 in which the applicant stated his objection, gave some general reasons for his dissatisfaction and also indicated that he would be seeking legal advice in relation to furthering the objection. Mr Linklater-Steele submitted that, in the following months, the delay was due to the inaction by the solicitor that the applicant had briefed. He referred the Tribunal to the letter of the accountant, Barry Helton, as being supportive of the applicant’s intention to continue with the objection process.
23. Whilst conceding that a significant time had passed, Mr Linklater-Steele submitted that this would not be a surprising thing for an individual who believed his case was in the hands of a lawyer because, not uncommonly, the law is slow to act at times. He said there was nothing to indicate to the applicant that the solicitor was not being vigilant in progressing the claim.
24. Mr Linklater-Steele also referred to the merits of the application which had been dealt with by the senior case officer. He noted that that officer had determined in the applicant’s favour that there had been travel contact costs in excess of the threshold required under the child support assessment legislation but that, nevertheless, a decision contrary to him had been made and that this was on the basis of that information about his income which was incorrect. In that regard, he again referred to the terms of the accountant’s letter which related to aspects of the applicant’s income.
25. Mr Linklater-Steele also made reference to the possible detriment to the applicant if the extension of time were not granted. He submitted that, if the matter were not able to be re-opened, the applicant’s only avenue was to seek a further departure order and, in particular, he would be disadvantaged because of a calculation of arrears that had been made by the senior case officer on 19 February 2002. He then submitted that, if time were extended and the objection considered, this would then finalise the processes in the Child Support Agency and keep alive further appeal options to the applicant.
26. Mr Linklater-Steele also submitted that, in the event that it were dealt with as an objection, there would be little or no impact on the applicant’s former wife because there would be no requirement for her to give evidence and there would be no costs associated in that process. Further, he submitted that any evidence that would need to be considered would be that provided by the applicant and any burden of proving that the decision was wrong would lie with the applicant so that there would be no prejudice to his former wife.
Respondent’s Submission
27. Mr Harden submitted that the relevant 28 day timeframe in this case began to run from the date when, in the ordinary course of post, the applicant would have received the decision of 19 February 2002. He said the Child Support Agency usually allowed a 5 day period for service by post so that the 28 day timeframe would have run by 27 March 2002.
28. Mr Harden said that the Child Support Agency did not dispute the evidence of the applicant or his wife in relation to their engagement of the services of Robert Bax & Associates as solicitors although he noted there was no independent evidence of such a relationship.
29. Mr Harden referred to a file note (T6) of a telephone conversation between the applicant and an officer of the respondent, which is dated 22 February 2002, and he conceded that this related to a call by the applicant to the Child Support Agency and that a discussion took place about the decision. He referred to a further file note (T7) which he described as a transcription of the applicant’s letter of 17 March 2002 on to a computer file. In addition to the text of that letter, he submitted that this file note also recorded the actions of the officer who contacted the applicant by telephone, after reading the applicant’s letter, and advised him that the letter was not a valid objection because it did not advise the grounds of objection. He also submitted that the file note also recorded that the applicant had an appointment with his solicitor in that same week to arrange for that to be done.
30. Based on the timeframes referred to in those phone calls and in the letter, Mr Harden submitted that the applicant was already at the end of the statutory timeframe allowed for the objection.
31. In relation to the merits of the case before the senior case officer, Mr Harden submitted that, even though there may have been a finding in the applicant’s favour concerning the threshold question of the increase in costs of having contact with his daughter, this was only one of the grounds that needed to be satisfied in order for a departure order to be made. He submitted that, in addition to establishing that ground of departure, it was necessary for any decision that was made to be just and equitable and otherwise proper in accordance with a range of factors listed in the Act. He submitted that this was what had been done by the senior case officer in referring to the income of the applicant so that, even though a ground of departure had been made out in relation to high access costs, justice and equity and the propriety of the matter required a decision to be made for his assessment to be increased.
32. Mr Harden also submitted that, rather than have the objection dealt with by the Registrar, it was always open for the applicant to make a further application for departure and for updated information in respect of his income to be provided on the occasion of a further hearing.
33. Mr Harden also submitted that, in the event that the objection was able to be heard, there would be prejudice to the applicant’s former wife because the issue determined by the senior case officer related not only to the costs of contact but also to issues of income and that these related to her financial position as well as to that of the applicant. Therefore, he submitted, she would need to provide evidence if the matter were heard. He also submitted that there would be obvious prejudice to the applicant’s former wife in the sense that, since the decision was made, she had been in a position where she has been able to rely upon it and to re-arrange her affairs on the basis of it.
Consideration
34. The decision of the senior case officer was made on 19 February 2002 and it has not been disputed by the applicant that an objection to that decision had to be lodged with the Child Support Agency by the date nominated by the respondent. This was 27 March 2002 and this date took into account the 28 days provided for in section 98Z of the Act as well as a period to accommodate transmissions by post. I am satisfied that the relevant date for lodgement of the objection was 27 March 2002.
35. The first contact by the applicant with the respondent after the decision had been made was on 22 February 2002. At that time, the applicant had not received written notice of the decision and it would seem that he contacted the Child Support Agency in an attempt to determine what the outcome was. A file note of the conversation (see T6) records that he was advised of the decision as well as his objection rights and it is also noted that he declared his intention to object to the decision. This did not constitute an objection because, pursuant to subsection 98X(1) of the Act, it had to be in writing.
36. The next contact was by the letter that the applicant wrote on 17 March 2002. This is reproduced above. Clearly, this was in writing and was within the timeframe required by section 98Z of the Act. It was transcribed into a computer file by the respondent (see T7). It indicates an intention to object and also identifies the course of action that the applicant intended to follow. This was to see a solicitor. As to the basis of his objection, the applicant said that a number of the statements in the decision were untrue, unfounded and purely based on innuendo. I am satisfied that this did not constitute a full and detailed statement of his grounds of objection as required by section 98ZA of the Act. I am also satisfied that the applicant made no other contact with the respondent prior to 27 March 2002 and that the objection which set out grounds thereof was the letter, dated 20 September 2002, of his solicitor, Michael Lynch and Associates (see T8). This letter was also an application for extension of time to lodge an objection under section 98ZD of the Act.
37. The Act provides no guidance on the way in which the Tribunal is to determine the issues relating to an extension of time. The Child Support Agency has published a Guide to assist decision-makers in that Agency in making such decisions and It refers to the following factors as being of relevance: reasons for delay, the merits of the objection and any prejudice to the other parent. Clearly, the reason for delay will always be significant as will issues of prejudice to other persons. However, in relation to the merits of the objection, I note the decision in Re Savage and Child Support Registrar [2002] AATA 334 where the Tribunal declined to consider the relative merits where those merits are not able to be determined by the Tribunal because the matter is beyond its jurisdiction: see also Re Young and Child Support Registrar [2001] AATA 790. I agree with that approach and, in particular, note that the substantive matter is not merely the issue of whether a threshold additional level of expenditure was incurred in relation to contact between the applicant and his daughter, but also that of the discretionary factors of whether the ultimate decision was just and equitable and otherwise proper. The Tribunal has no jurisdiction to determine any of those matters and I make no findings in relation to them.
38. The file note at T7, referred to above, indicates that an officer of the respondent contacted the applicant by telephone on 8 April 2002 and advised him that he needed to provide grounds in order for his objection to be treated as being valid. The applicant is recorded as advising that he intended seeing a solicitor that week. On that evidence, I am satisfied that the applicant had not consulted with a solicitor before 8 April 2002 which was some 10 days outside of the timeframe for lodgement of his objection. This was despite his indication, in his letter of 17 March 2002, that he intended to do so.
39. In their statements, the applicant and his wife said that they contacted Andrew McGinness at Robert Bax & Associates, Solicitors in the week after 8 April 2002. The respondent has not disputed their evidence that they did this. No supporting material was before the Tribunal in respect of the relationship between the applicant and Robert Bax & Associates but neither the applicant nor his wife were required for cross-examination and I accept as being correct their unchallenged statements that the applicant placed his affairs relating to the raising of an objection to the decision in the hands of that firm of solicitors. I am also satisfied that Robert Bax & Associates did not deal with the matter in any manner between April and August 2002. Although that period comprises a period of some four months, I accept the applicant’s evidence that, throughout that period, he believed that the matter was in the hands of his solicitor and that it would be dealt with in an appropriate manner. In that sense, I am satisfied that satisfactory reasons have been given by the applicant for the delay from April until August 2002.
40. After August 2002, the applicant engaged the services of his current solicitor, Michael Lynch & Associates, who advanced the matter in a timely way and set out in the letter of objection the reasons for the applicant being out of time (see T8). However, that explanation concentrates on the period after the applicant contacted a solicitor in April 2002. It makes no specific reference to the period prior to 27 March 2002. That is significant because of the terms of subsection 98ZD(2) of the Act which requires that an application for extension of time must state the reasons for the person's failure to lodge the objection within the period required by Part 6B of the Act.. This means that the explanation must be of the reasons for delaying prior to 27 March 2002 rather than from April 2002.
41. In relation to the period prior to 27 March 2002, the letter from Michael Lynch & Associates refers to the applicant as having an appointment with a solicitor in April and the file note of the conversation with the applicant of 8 April 2002 (see T7) also refers to the applicant as already having an appointment at that time with a solicitor. The applicant’s letter of 17 March 2002 states that he was “currently” making an appointment to see his solicitor. This evidence was not challenged by the respondent. On the balance of probabilities, I am satisfied that the applicant was in the process of putting in place, before 27 March 2002, the procedure whereby he would consult with a solicitor on a date in April 2002. I am also satisfied that the reference to that appointment in the letter from Michael Lynch & Associates can be interpreted as a reference to the applicant’s actions prior to 27 March 2002. Because the applicant was in the process of having the matter dealt with by a solicitor at that time, particularly in the context of having already given notice both orally and in writing to the respondent of his intention to object, I am satisfied that he has given a satisfactory explanation of his delay within the period required by subsection 98ZD(2) of the Act.
42. The respondent has referred to prejudice that would befall the applicant’s former wife if an extension of time were granted. She may well have re-arranged her affairs to an extent although no evidence of this was provided to the Tribunal. However, an element of the applicant’s concern about the departure decision of the senior case officer relates to the payment of arrears and, as I understand it, these have not yet been paid (see T8, 18). While it is inevitable in most cases where an extension of time is granted that some prejudice will befall one party more than another, I am satisfied that there is no evidence that prejudice would arise in the case of the applicant’s wife if an extension of time were granted for the applicant’s objection to be heard and, on balance, I am satisfied that the interests of justice will be served by setting aside the decision to refuse the extension of time.
Decision
43. The Tribunal sets aside the decision under review and substitutes its own decision that the respondent is to treat the objection lodged on 20 September 2002 as having been lodged within the time allowed under section 98Z of the Act.
I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: .......................................................................................
AssociateDate of Hearing 4 July 2003
Date of Decision 22 July 2003Counsel for the Applicant Mr J Linklater-Steele
Solicitor for the Applicant Michael Lynch & Associates
Solicitor for the Respondent Mr N Harden, Departmental Advocate
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