Hanlon and Child Support Registrar (Child support)

[2018] AATA 3793

Hanlon and Child Support Registrar (Child support) [2018] AATA 3793 (6 August 2018)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2018/PC014428

APPLICANT:  Mr Hanlon

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                6 August 2018

APPLICATION:

An extension application made on 26 June 2018 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 17 August 2017 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

Child support - Application for extension of time to apply for AAT first review - Whether extension should be granted - No adequate explanation for the delay - Merit is neutral - Extension of time refused

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.

STATEMENT OF REASONS 

1. Mr Hanlon is liable to pay child support to [Ms A] in respect of their children, [Child 1] and [Child 2].  On 14 May 2017, the Child Support Registrar made a decision to vary the child support assessment.  In part, this decision changed Mr Hanlon’s adjusted taxable income from his estimated adjusted taxable income of $0 to $130,596, resulting in a very marked increase in the rate at which he was liable to pay child support.

2. Mr Hanlon objected to this decision.  On 17 August 2017, the Registrar disallowed his objection.  Notice was given to him electronically, and included a covering letter informing him that he could ask the Administrative Appeals Tribunal to review the decision, but must do so within 28 days of receiving the letter.

3. Mr Hanlon applied to the Tribunal online on 26 June 2018.

4. Under the Administrative Appeals Tribunal Act 1975,[1] an application of this type must be lodged within 28 days of the date on which the document setting out the decision is given to the person or else, under the Child Support (Registration and Collection) Act 1988,[2] must be made with an application for an extension of time.  Mr Hanlon’s application was self-evidently not lodged within the prescribed 28 days period, but did include an application for an extension of time.

   [1] Section 29 of that Act.

   [2] Section 91 of that Act.

5. The child support law offers neither direction nor guidance on how the decision on the extension of time application should be made.  I have had regard to general case law, including Ingram-Nader v Brinks Australia Pty Ltd [2006] FCA 624, Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186 and Brisbane South Regional Health Authority v Taylor [1996] HCA 25. The first two judgments cited set out a number of factors which are potentially relevant in determining such applications, such as the reason for the delay and the merits of the objection. In the third judgment, McHugh J gives a clear explanation of the public policy considerations attaching to statutory time limits.

6. The starting point is a presumption that applications lodged out of time are not allowed to proceed.  The power to extend the time for lodgement should not be exercised in a way which frustrates the intent behind prescribing a time limit.

7. The paramount (although not prerequisite) consideration is whether there is an adequate explanation for delay.  If there is a good reason why the person did not lodge within time, then the person should be able to explain it.  If there is no good reason, then allowing the extension would tend to frustrate the purpose of having a time limit in the first place. 

Reason for delay

1. Mr Hanlon set out his reasons for delay as follows:

   When I discussed the Objection Decision with the CSA delegate, I expressed my strong concern that their decision to put in place a very high income order was extremely unfair as it did not reflect either my taxable income nor my earning capacity. The delegate advised at the time that I could complain to the AAT. I had never heard about the AAT before. When I asked whether they were likely to view my situation differently she advised that it was unlikely as the CSA was working within the discretion allowed under the legislation. Given she led me to believe that I had little chance of success with the AAT and suffering from depression due to my world having imploded, I couldn't see the point in going to the AAT. When I recently spoke 2-3 different case managers at CSA, they all suggested that I lodge a new Change of Assessment which they told me would override the Income Order which was in place. Having spent some days preparing & lodging the application with supporting documents, I received a call today suggesting that my application was unlikely to be successful due to the Income Order that was in place until 12/4/19. The delegate then suggested that I contact AAT to see whether you would review the objection decision given I was misled by the department on a number of occasions.

2. Mr Hanlon is therefore submitting that:

   ·         The objections officer offered an opinion that the Tribunal was not likely to take a different view of Mr Hanlon’s situation;

   ·         Mr Hanlon inferred from that opinion that, if he were to apply to the Tribunal, he was unlikely to be successful; and

   ·         On that basis, he chose not to apply within the prescribed period.

3. He asserts that the delay was fundamentally because he was misled by the Child Support Agency, the implication being that it would be unjust for him to be denied a review by the Agency’s actions.

4. I note that documents provided by the Registrar for the purpose of the consideration of the extension of time application contain no file note corroborating an interchange resembling this.  It is therefore difficult to be satisfied as to what was actually asked by Mr Hanlon and what the answer was.  Experience suggests that misunderstandings are not uncommon.

5. If I accept Mr Hanlon’s account as completely accurate as to that conversation, then, in substance, he asked the decision-maker whether she thought her decision was likely to be changed on review.  In effect, he was asking her whether her decision was wrong.  No reasonable person, having just reached a considered decision, would hold a view that the decision was wrong.   The decision-maker clearly cannot and cannot reasonably be expected to provide an independent assessment of the merits of his or her own decision. 

6. Mr Hanlon relied on this opinion in choosing not to apply for review.  Accepting the rest of his account, he later took other advice (also from the Agency whose decision it was) and changed his mind as to the desirability of making an application for review.

7. In that analysis, I do not accept that the Child Support Agency misled Mr Hanlon in any way.  At the highest, he placed unreasonable weight on a particular person’s words in assessing his own prospects of success if a review took place.  Based on that assessment of his, he chose not to apply within the prescribed period, and only made a different choice after a considerable period had elapsed.

8. Those circumstances do not constitute an adequate explanation for Mr Hanlon’s delay in applying.  In other words, they do not provide any reasonable basis not to enforce the ordinary time limit for lodging an application for review.

Merits of the case

1. The particular decision made is a broad exercise of a discretion (which certainly permits that breadth).  By its nature, reasonable minds may differ on the exact determination that is preferable.  It follows that the decision might be changed if a review were allowed to take place.  On the other hand, it appears to me that the decision had regard to all of the relevant evidence, went through an appropriate process and was not infected by any obvious error.  I cannot say that a review, if it went forward, would be likely to change the decision

2. As such, this factor does not tend to favour or disfavour the grant of an extension.

Other factors

1. Other matters often considered concern prejudice to any other party to a potential review, or to the community as a whole.  If such factors were present, they would tend to oppose the grant of an extension.

Outcome

1. Fundamentally, unless the relevant circumstances persuade me that it is in the interests of justice that I should grant an extension, then an extension is not to be granted.  On my analysis above, the circumstances surrounding the delay in Mr Hanlon applying positively suggest that I should not grant an extension.  The other relevant circumstances are neutral at best. 

2. I decline to grant the application for an extension of time.  The application is therefore out of time and not validly made.  The Tribunal cannot conduct the review desired by Mr Hanlon.