Hackler and Child Support Registrar (Child support)

[2019] AATA 2188

Hackler and Child Support Registrar (Child support) [2019] AATA 2188 (10 June 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/AC015795; 2019/AC015815

APPLICANT:  Mr Hackler

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member S Letch

DECISION DATE:  10 June 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – refusal to grant an extension of time to object – satisfactory explanation for the delay – substantive matter has no chance of success – weighing all factors 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. Mr Hackler and [Ms A] are the parents of [Child 1] and [Child 2]. Mr Hackler has been assessed by the Child Support Agency (“CSA”) to pay child support to [Ms A].

2. This matter has been established as two applications; however, the documents supplied by the CSA reveal only one decision dated 22 November 2018 concerning a decision by the CSA to refuse to grant Mr Hackler an extension of time to object to an original decision on 8 May 2018. Mr Hackler, according to the CSA, objected on 22 October 2018, more than 28 days after he was notified of the original decision of 8 May 2018 to accept his “nil” estimated 2017/18 income for the period 8 May 2018 to 30 June 2018 only.

3. Mr Hackler indicated there had been another decision concerning the date of effect of his reduced (2018/19) estimated income in the following financial year which he sought to take effect from 1 July 2018. He advised this was the real issue he was seeking to agitate. The Tribunal made further enquiries with the CSA; the CSA did not supply any evidence of another objection decision or decision to refuse to grant an extension of time in which to object. As a result, the only decision before the Tribunal is the decision to refuse Mr Hackler an extension of time to object to the decision of 8 May 2018 concerning his “first estimate”.

4. The Tribunal conducted a hearing on 8 May 2019; Mr Hackler participated by conference telephone.

Application of the law

1. The first hurdle for Mr Hackler is whether he requires an extension of time to make application to the Tribunal; the decision refusing his extension of time to object was made on 22 November 2018, and he applied to the Tribunal for review on 21 January 2019. Mr Hackler’s evidence was that he used to work [in an occupation] – he did not go away for Christmas and the letter was not delivered to his post box until 3 January 2019. He said he was accustomed to delays around that time of year, but this delay was particularly lengthy.

2. The Tribunal accepted Mr Hackler’s evidence, and accepted that he did not receive the objection letter until 3 January 2019.  He said the CSA told him that he had 28 days from the day he received the letter to apply for review to the Tribunal. Accordingly, the Tribunal finds Mr Hackler made his application to the Tribunal within 28 days; he does not require an extension of time to apply for review to the Tribunal.

3. Turning to the substantive issue, the legislation relevant to this application is contained in the Child Support (Registration and Collection) Act 1988 (the Registration Act). The relevant provisions are summarised below. With the aim of promoting consistency in decision-making, the Tribunal has also had regard to the Child Support Guide (the Guide), the Department’s online policy and legislation resource.

4. A parent may object to a decision made by the CSA pursuant to section 80 of the Registration Act (including a decision about a particular of the assessment). Section 81 of the Registration Act provides that an objection must be lodged within 28 days after notice of the decision is served on the person.

5. The decision to which Mr Hackler wished to object was made on 8 May 2018 and notified to him by letter of the same date. Regulation 14 of the Child Support (Registration and Collection) Regulations 1988 provides that a notice may be served by the Department by sending it by pre-paid post to a person’s address for service. Service is then taken to have occurred at the time the notification would have arrived at that address in the usual course of the post. The Department determined that Mr Hackler objected to the decision on 22 October 2018, and that he required an extension of time within which to object.

6. Section 82 of the Registration Act relevantly provides that a person may apply for an extension of time in which to lodge an objection and that the application must state fully and in detail the grounds of the application, including the circumstances concerning, and the reasons for, the failure by the person to lodge the objection within the 28 day time period prescribed.

7. The Registration Act does not set out criteria for consideration when determining an application for an extension of time within which to object. However, the Guide contains useful guidelines at chapter 4.1.5. In summary, the Guide suggests that it is ultimately a question as to whether the interests of justice favour the grant or refusal of the application in the particular circumstances. Factors to be considered are the reason for the delay, the merits of the objection, whether the person has rested on their rights and any potential prejudice to the other party or the public.

8. The established cases indicate that the starting position is the prima facie rule that proceedings commenced outside a statutory period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at [416]). However, the primary concern “is to do that which will enable justice to be done between the parties” (see Martinsen v Secretary, Department of Family & Community Services [2004] FCA 297 per Spender J). Spender J quoted McHugh J in Gallo v Dawson (1990) 64 ALJR 459 as follows:

   In order to determine whether the rules [imposing time limits] will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time ...

   When the application is for an extension of time …it is always necessary to consider the prospects of the applicant succeeding in the appeal …

9. In line with Wilcox J’s survey of cases in Hunter Valley Developments P/L v Cohen (1984) 3 FCR 344, the Tribunal proposes to consider the matters identified in Gallo v Dawson under the following heads:

   ·     the explanation for the delay;

   ·     the merits of the substantial application;

   ·     any prejudice to the other party including any prejudice in defending the proceedings occasioned by the delay; and

   ·     any public interest considerations that might flow from a successful application including “the unsettling of other people” (Ralkon v Aboriginal Development Commission[1982] FCA 153; (1982) 43 ALR 535 at [550]) or of “established practices” (Douglas v Allen (Morling J, 3 April 1984, unreported, at [19]).

Explanation for the delay

1. Mr Hackler told the Tribunal that he telephoned the CSA in May 2018 saying he was not happy with the decision, and was asked to provide something in writing. In around early June 2018, he posted back an objection form; he was not given a return envelope – he used his own envelope and put a stamp on it. He phoned CSA again in August 2018 as he had not heard anything; CSA said they had not received anything, and Mr Hackler sent in another objection form.

2. The Tribunal accepted Mr Hackler posted the objection form in early June 2018; however, ultimately, the question is whether that form was received by the CSA.  There are a number of possibilities, including it being lost in the postal system in transit. The CSA has no record of an objection being received prior to 22 October 2018. Whilst not without doubt, the Tribunal considers it more likely that an objection was not received by the CSA until 22 October 2018.

3. This was clearly not a case of Mr Hackler resting on his rights; the Tribunal considers that he has a reasonable explanation for the delay.

Merits of the objection

1. If there is no merit in the substantive application, there is no point in granting an extension of time to object.

2. There are technical requirements before an estimate can be considered and applied. On 26 April 2018, in his initial contact with CSA, Mr Hackler was not able to provide all the information necessary to meet the legislative requirements to make an estimate election. It seems not in serious dispute that the first date the election requirements were met occurred on the day of Mr Hackler’s contact with the CSA on 8 May 2018; his estimate cannot be given effect from an earlier date.

3. Accordingly, his application cannot succeed. This weighs very heavily against granting an extension.

Potential prejudice

1. [Ms A] has been entitled to rely on the assessment in place since the earlier decision was made. The Tribunal must weigh any potential prejudice to [Ms A] arising from the desirability of the certainty of the Department’s decision against the other factors relevant to the application for an extension.

Public interest considerations

1. The statute provides for a 28 day time limit for the lodgement of objections so that parents (and the CSA) can act with certainty as to the outcome when the objection period has elapsed. The public has an interest in reviews of decisions made by the CSA being performed in a timely fashion and in a manner that ensures all applicants are treated fairly and equally. Accordingly, an extension of the time for objection is not to be automatically granted. All of the factors must be carefully weighed.

Conclusion

1. The Tribunal has concluded there is no purpose in granting an extension to Mr Hackler in this application given his substantive application has no prospects of success.

2. The Tribunal observes that Mr Hackler may seek to further agitate with the CSA about the decision concerning the date of effect of his later 2018/19 estimated income for which the Tribunal has no evidence has been reviewed.  

DECISION

The decision under review is affirmed.