Haden and Child Support Registrar (Child support)

[2019] AATA 2191

Haden and Child Support Registrar (Child support) [2019] AATA 2191 (11 June 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC016234

APPLICANT:  Mr Haden

OTHER PARTY:  Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  11 June 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 significant delay – arguable merit – 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

1. Mr Haden and [Ms A] are the parents of [Child 1]. In 2012 a child support case was registered with the Department of Human Services – Child Support (“the CSA”). The Child Support (Assessment) Act 1989 provides for an administrative assessment of child support payable. It uses a formula which contains variables such as the parents’ adjusted taxable incomes and their percentages of care of the child. From 1 October 2013 the administrative assessment was based on Mr Haden’s 2012-13 adjusted taxable income of $10,218, [Ms A]’s 2012-13 adjusted taxable income of $26,037, and [Ms A]’s 100% care of [Child 1]. Mr Haden was required to pay $391 per annum in child support.

2. The Child Support (Assessment) Act 1989 also provides for a departure from the administrative assessment in certain circumstances. On 28 March 2014, [Ms A] lodged a departure application. On 28 July 2014 a senior case officer granted her application and varied Mr Haden’s adjusted taxable income to $55,000 per annum and [Ms A]’s adjusted taxable income to $60,000 per annum from 19 May 2014 to 30 September 2015 (“the senior case officer’s decision”). Mr Haden was required to pay $5,162 per annum in child support.

3. On 24 July 2014 the CSA wrote to Mr Haden and notified him of the senior case officer’s decision. He had a right to object to that decision. To object within time, he needed to do so within 28 days of being notified of the decision: section 81 of the Child Support (Registration and Collection) Act 1988. On 5 March 2019, Mr Haden lodged an objection and an application for an extension of time in which to object. The CSA proceeded on the basis that he had objected to the senior case officer’s objection. The CSA decided to refuse his extension of time application. He promptly applied to this Tribunal for review of that decision.

4. Pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, the CSA provided the Tribunal and Mr Haden with what it submitted were copies of all relevant documents in its possession or under its control. It provided 112 pages. Prior to the hearing, Mr Haden applied to have the hearing relisted because he was waiting for the results of a Freedom of Information application that he had lodged with the CSA. I refused his application. Shortly before the hearing he provided the Tribunal with 387 pages of correspondence from the CSA. I accepted that documentation into evidence. I conducted the hearing on 11 June 2019. Mr Haden attended the hearing in person. He explained that he was still waiting for the results of his Freedom of Information application. He said his application was originally refused because the scope of his request was too broad, but he had reduced the scope of his request during the course of consultations with the CSA. He reiterated his application to have the matter relisted. I refused his application at the start of the hearing, but explained that I could adjourn proceedings at the end of the first day of the hearing if I considered it necessary to obtain or receive further documentation. At the end of the first day of the hearing I decided that that was not necessary.

5. At the hearing, Mr Haden initially stated that he had not objected to the senior case officer’s decision and did not want to do so. His written objection identifies the decision in question as a decision dated 1 March 2012. I noted that the child support case did not commence until 16 July 2012, to which he replied: “according to CSA records.” He explained that he nominated 1 March 2012 because he was seeking an extension of time in which to object to all the decisions the CSA had made since the commencement of the child support case. He identified what he considered to be a number of CSA decisions that he considered to be incorrect, including notices that the CSA had issued from time to time informing him of the balance of his child support arrears. The senior case officer’s decision was a decision which, together with many other matters, affected the CSA’s calculation of his child support arrears. Ultimately, he stated that he was objecting to the senior case officer’s decision, and he was therefore seeking an extension of time in which to object to that decision, and the matter proceeded on that basis.

6. Mr Haden did not dispute receiving the CSA letter dated 24 July 2014 which notified him of the senior case officer’s decision. He said he lodged a written objection to that decision shortly after it was made. He does not have a record of lodging a written objection around that time and the CSA does not have a record of receiving a written objection around that time.

7. On 14 January 2015 a CSA employee contacted Mr Haden and made a detailed file note of various issues that Mr Haden raised. The file note included the following:

   - income is not correct

   Currently the child support payments are being received via clink deductions. There is a COA decision[1] in place which set both parents incomes. [Mr Haden’s] income is currently set at $55,000. [Mr Haden] states that he is not working and when I asked about how the [senior case officer] came to be of the understanding that he was earning an income of $55,000, [Mr Haden] said that [the senior case officer] relied on information from a third party which was incorrect. He said that he had been working in a job for a short time - when someone contacted his employer to confirm his income and status of employment a cleaner answered the phone and provided incorrect information. He was not employed fulltime and was not on an income of $55,000, and since that time has become unemployed again. When I attempted to provide information as to his current options regarding the COA i.e. new COA [Mr Haden] requested that all information be provided in writing.

   [1]Departure decisions are commonly referred to as Change Of Assessment decisions, or COA decisions.

8. As an aside, Mr Haden’s employer was [Company 1], and Mr Haden confirmed during the hearing that [Company 1] had employed him on a full-time basis and he received a wage of approximately $55,000 per annum.

9. If Mr Haden had in fact promptly lodged an objection to the senior case officer’s decision, I consider it likely that he would have mentioned that fact during his conversation with the CSA employee on 14 January 2015. On balance, I find that he did not promptly lodge an objection to the senior case officer’s decision. I find that he first objected to that decision on 5 March 2019. His objection was therefore out of time.

10. The principles to be applied when deciding an extension of time application were summarised in Phillips v Australian Girls’ Choir and Another [2001] FMCA 109:

    1.There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The "prescribed period" of 28 days is not to be ignored …

    2.It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained … It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition …

    3.…It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. …

    4.Any prejudice to the respondent … is a material factor [which goes] against the grant of an extension.

    5.The mere absence of prejudice is not enough to justify the grant of an extension. …

    6.The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. …

    7.Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion …

The merit of Mr Haden’s substantive application

1. The senior case officer’s decision was based, in part, on [Company 1]’s advice that Mr Haden commenced full-time employment on 19 May 2014 and he was earning approximately $55,000 per annum. At the hearing, Mr Haden confirmed that that information was correct.

2. Mr Haden initially stated that [Company 1] terminated his employment shortly after the senior case officer made her decision. He later indicated that his employment may not have been terminated so quickly. In any event, it appears that his employment was terminated prior to the end of 2014-15 because his adjusted taxable income for that financial year was $39,055. On a preliminary assessment, there appears to be some merit in Mr Haden’s substantive application.

Delay

1. On 11 February 2015 the CSA wrote to Mr Haden. The letter included the following:

   I am writing to you today to introduce myself as your new case manager. I have not tried to contact you by telephone out of respect for your request for contact with us to be in writing only. …

   [The author summarised the senior case officer’s decision.]

   Notification of this decision was advised to you verbally on 16 July [2014] and the decision sent to you in writing on 24 July 2014.

   You have raised concerns that you do not believe that the COA decision is correct. As advised to you in the decision letter you do have objection rights to this decision if you believe it is incorrect. An objection to a COA decision needs to be in writing and made within 28 days of receiving notification of the decision.

   Should you choose to object to this decision, you will be objecting outside the 28 day timeframe. In order for this objection to be considered by the department, you will need to apply for an Extension of Time (EOT) to lodge an objection. Your EOT will need to state your reasons why you have objected outside the 28 day timeframe and a decision on the EOT will be made prior to your objection being considered.

   Please note that until such time as a different decision is made, the child support assessment will remain as determined by the COA decision.

   If your circumstances have changed since the previous COA decision, you may also wish to make a new COA application. …

2. On 1 April 2015 the author of the letter phoned Mr Haden and noted that “[Mr Haden] confirmed that he has received and read my letter but he had not yet had the opportunity to respond.”

3. Notwithstanding the assistance that the CSA provided to Mr Haden, he did not object to the senior case officer’s decision for almost five years.

Other matters

1. When the senior case officer varied Mr Haden’s adjusted taxable income to $55,000 per annum, he was earning approximately $55,000 per annum. It appears that he did not continue to earn that income for the duration of the senior case officer’s decision but, as the CSA explained in its letter dated 11 February 2015, his subsequent change in circumstances could have been addressed via a new departure application. That fact weights against the granting of an extension of time in which to object to the senior case officer’s decision.

2. As at 29 April 2019, Mr Haden owed child support arrears of $1,189. He has paid all, or at least most, of the child support that he was required to pay pursuant to the senior case officer’s decision which applied from 19 May 2014 to 30 September 2015. That fact also weighs against the granting of an extension of time in which to object to the senior case officer’s decision.

Conclusion

1. While there appears to be some merit in Mr Haden’s objection, the combination of factors referred to above, and in particular Mr Haden’s inordinate delay of almost five years, leads me to conclude that the interests of justice favour the refusal of his extension of time application.

DECISION

The decision under review is affirmed.