Hale and Child Support Registrar (Child support)

[2020] AATA 4413

Hale and Child Support Registrar (Child support) [2020] AATA 4413 (8 September 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER;  2020/MC019293

EXTENSION APPLICATION

NUMBER:2020/MC019293

APPLICANT:  Ms Hale

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                8 September 2020

APPLICATION:

An extension application made on 7 July 2020 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 2 April 2020 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

CHILD SUPPORT – application for extension of time – departure determination – no satisfactory explanation for the lengthy delay – some merit – prejudice to the other parent – extension of time refused

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted 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.

STATEMENT OF REASONS

1. On 7 July 2020 Ms Hale lodged an application with the Administrative Appeals Tribunal (the Tribunal) for an extension of time for review of a child support decision made on 2 April 2020.  The matter was considered on 8 September 2020 on the papers (consistent with the Tribunal’s ‘Child Support Review Directions’).  The Tribunal had before it a bundle of documents provided by the Department of Human Services, Child Support (the Child Support Agency).

2. Ms Hale and [Mr A] are the parents of [the child] (born January 2019).  The case commenced on 30 January 2019 and [Mr A] is the liable parent under the assessment.

3. On 12 August 2019 Ms Hale applied to the Child Support Agency for a change to the administrative assessment on the basis of a parent’s income, property and financial resources (the ground commonly referred to as Reason 8A).

4. On 7 January 2020 the Child Support Agency made the decision to change the assessment so that for the period from 1 September 2019 to 31 August 2022 the adjusted taxable income of [Mr A] is set at $156,100 (the original decision).

5. On 6 February 2020 Ms Hale objected to this decision and on 2 April 2020 the Child Support Agency allowed the objection in part and made the decision to change the assessment so that for the period 1 September 2019 to 31 December 2022 the adjusted taxable income of [Mr A] is set at $136,000 (the objection decision).

6. The Tribunal notes that the objection decision ceases to have effect if [Mr A]’s employment ends or his earnings reduce by at least 15 per cent when compared to the adjusted taxable income specified in the decision or the adjusted taxable income used in the administrative assessment (this is known as the COVID clause). [Mr A] is required to provide certain evidence in relation to the change in his circumstances before the COVID clause is enacted.

7. 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).

8. The issue which arises in this case is whether or not to grant Ms Hale’s request for an extension of time to submit an application for review of a child support decision.

9. Part VIIA, Division 2 of the Act sets out the procedures for applying to the Tribunal for a review of an objection decision made by the Child Support Agency, as well as applying for an extension of time for such a review in the event the application is not made within the prescribed period.

10. Subsection 29(2) of the Administrative Appeals Tribunal Act 1975 establishes that an application for review must be made within 28 days of being served with notice of the decision.

11. If the 28-day period to apply for review has ended, then a written application for an extension of time can be made under section 91 of the Act. The Tribunal finds Ms Hale was advised about the outcome of the objection decision by post in a letter from the Child Support Agency dated 2 April 2020. Under provisions of the Acts Interpretation Act 1901 and the Evidence Act 1995, she was therefore taken to be served with written notice of this decision by 20 April 2020.  Given Ms Hale lodged her application more than 28 days after she was served with notice, the Tribunal is satisfied that an extension of time is required.

12. Under subsection 92(1) of the Act, the Tribunal must consider and grant or refuse an extension application. In doing so, the Tribunal considers the guiding principles for the exercise of discretion to allow an extension of time as set out in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186. In that case, the Federal Court said an extension of time should not be granted unless satisfied it was proper to do so, noting that, in general, applications or proceedings commenced outside of a prescribed time limit will not be considered.

13. A review of other relevant authorities establishes that when considering whether or not to allow 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 Tribunal finds that Ms Hale’s application for an extension of time on 7 July 2020 in relation to the objection decision made on 2 April 2020, of which she was notified by post, is approximately 50 days out of time. It is noted Ms Hale initially submitted her application for review to the Tribunal on 19 June 2020.  To have been within the prescribed period Ms Hale’s application should have been made no later than 18 May 2020.

2. In seeking an extension of time Ms Hale cites several reasons for the delay. Ms Hale states she did not receive the paperwork until 17 June 2020 and was told by the Child Support Agency she could not appeal the decision.  Ms Hale also states that she suffers depression and anxiety triggered by the mental, emotional and financial abuse arising from the child support claims made by [Mr A].

3. The Tribunal notes in evidence from the Child Support Agency a record of a discussion between Ms Hale and the objections officer on 30 March 2020.  The record shows that Ms Hale was informed about the outcome of the objection decision and advised of her right of appeal to the Tribunal.  The Tribunal also notes in evidence that on 22 April 2020 and 28 April 2020 Ms Hale contacted the Child Support Agency regarding queries about the 2 April 2020 letter she had received and documents she believed had not been provided during the change of assessment process.  The objections officer then contacted Ms Hale on 28 April 2020 and left a message advising her the objection decision had been finalised and if she disagreed she would need to lodge an appeal.  In a further conversation with the Child Support Agency on 4 June 2020, in relation to enactment of the COVID clause, Ms Hale was informed that all information relevant to the objection decision had been sent and her only option was to seek a review by the Tribunal.

4. There is no evidence before the Tribunal to support Ms Hale’s contention she was advised by the Child Support Agency she could not appeal the objection decision.  The Tribunal is satisfied, based on the evidence provided, that Ms Hale was informed of her appeal rights on numerous occasions.  While Ms Hale believed she had not received all documents relevant to the objection decision she was advised on 4 June 2020 this was not the case and yet did not submit her initial appeal to the Tribunal until 19 June 2020.

5. The Tribunal accepts that Ms Hale may be struggling with mental health issues and has considerable sympathy for her in this regard.  It is noted, however, this did not prevent her from dealing with other child support matters including lodging an estimate of income on 15 May 2020.  Given Ms Hale was able to deal with such child support matters the Tribunal is not satisfied her mental health prevented her from submitting her application for review in a timely fashion.  The Tribunal is uncertain which paperwork Ms Hale received on 17 June 2020 although it may relate to activation of the COVID clause in the objection decision.  This matter has separate appeal rights which Ms Hale is able to pursue.

6. The notification of the objection decision provided by the Child Support Agency dated
   2 April 2020 outlines what to do if Ms Hale disagreed with the decision. This included asking the Tribunal to undertake a review “within 28 days from the date you receive this letter”. The words “within 28 days” are in bold which, in the view of the Tribunal, gives a clear indication of the importance of this timeframe.  The letter also provides contact details for the Tribunal.

7. The Tribunal finds that Ms Hale has not provided a satisfactory explanation for the delay in applying for a review of the objection decision.

Merits of the application

1. Ms Hale is seeking review of an objection decision which varied the adjusted taxable income of [Mr A] to $136,000 based on his involvement in a family business. In the original decision his adjusted taxable income was varied to $156,000.

2. In her application to the Tribunal Ms Hale states there was no evidence to show that [Mr A] did not receive trust income.  She also states his expenses appear to be “much higher” than his declared wage.  Ms Hale also believes that [Mr A] is trying to remove himself from the family business to minimise his child support liability.

3. In making any determination to depart from an administrative assessment, the Child Support Agency must first find a ground for departure. These grounds are listed in the Assessment Act and in this case it was on the basis of [Mr A]’s income, property and financial resources.

4. In considering the merits of Ms Hale’s application, the Tribunal therefore conducted a careful review of the information used by the Child Support Agency in reaching its decision.

5. [Mr A] is [an Occupation] employed by a family business called [Company 1] Pty Ltd  of which he is also a director.  The Tribunal notes in evidence, records from the Australian Securities and Investments Commission (ASIC) showing that [Mr A] ceased to be the sole shareholder of [Company 1] on 13 February 2019 and ownership of the company transferred to [Company 2] Pty Ltd as trustee for the [A] Family Trust.  [Mr A] is, however, a director of [Company 2] Pty Ltd and the sole shareholder.  According to a certified copy of the Deed of Settlement for the [A] Family Trust he is not a primary beneficiary of the trust.

6. The Tribunal notes that during a conversation with the objections officer on 12 February 2020 [Mr A] stated his salary from [Company 1] would be $80,000 per annum as he was returning to full-time work after a period of reduced working hours.  To this salary the objections officer then added an amount of $56,000 to reflect director’s loans provided to [Mr A] from [Company 1] as reflected in the 2018-19 financial statements for the business.   Although there was no indication he had received a distribution from the [A] Family Trust in 2018-19 the objections officer nonetheless observed that [Mr A] had arranged his affairs “in a way that makes it difficult to determine the actual personal benefits he receives from the family business”.

7. Given the restructuring of [Company 1] in 2019 and the complex nature of his business affairs the Tribunal accepts that [Mr A]’s income for the purposes of child support has been based on information which may not reflect his true financial situation.  It may be coincidental, however, the restructuring also appears to be an attempt to distance [Mr A] from the business shortly after the child support case commenced.

8. The Tribunal is satisfied the assumptions made by the Child Support Agency in relation to the income, property and financial resources available to [Mr A] are reasonable.  The Tribunal accepts, however, that although the Child Support Agency made the objection decision based on all the relevant evidence available at the time it is possible another decision maker may reach a different conclusion.

9. The Tribunal finds that the application by Ms Hale may have some merit on the basis of [Mr A]’s income, property and financial resources.

Potential prejudice to [Mr A] and the wider public

1. [Mr A] should ordinarily be able to rely on the child support assessment once the time for objection has passed.  Given Ms Hale is approximately 50 days late in making her application for an extension of time, it would be reasonable for [Mr A] to consider the objection decision was final.  The Tribunal finds [Mr A] would be disadvantaged if an extension of time to lodge an objection was granted.

2. Time limits for the review of administrative decisions should be observed as strictly as possible in order to assist the proper administration of government agencies.  There is also a public expectation that there be a degree of certainty in relation to time limits, however, the law also allows for extensions of time.  In this case the Tribunal believes there would be prejudice to the general public if an extension of time to lodge an objection was granted.

Fairness in granting an extension of time as between Ms Hale and other persons in similar positions

1. The Child Support Agency notifies parties that they can seek a review of decisions with the Tribunal and they have 28 days within which to submit a request for such a review.  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 is not satisfied Ms Hale’s circumstances are sufficiently different to that of other applicants in a similar position that an extension of time is warranted.  The Tribunal finds that it would be unfair to others to grant Ms Hale an extension of time in view of the statutory timeframe which applies.

CONCLUSION

1. Ms Hale has not provided a satisfactory explanation for the delay in applying for a review of the objection decision.  The reasons for the delay are an important factor in deciding whether or not to grant the application for an extension of time.  There would also be some prejudice to [Mr A] and the wider public should an extension of time be granted.  Although her application may have some merit the Tribunal must weigh all the various factors which should be taken into account and concludes the merits are not so compelling as to outweigh the other considerations.

2. The Tribunal finds, on balance, it would not be proper to grant an extension of time to seek review of the objection decision made on 2 April 2020 in the circumstances of this case.  Accordingly, the extension application is refused.