Hanson and Child Support Registrar (Child support)

[2019] AATA 4877

Hanson and Child Support Registrar (Child support) [2019] AATA 4877 (1 October 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC016800

APPLICANT:  Mr Hanson

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member S Letch

DECISION DATE:  1 October 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS
CHILD SUPPORT – refusal to grant an extension of time to appeal – satisfactory explanation for the delay – no merit – prejudice to other party – weighing all factors the extension of time is 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.

REASONS FOR DECISION

BACKGROUND

1. Mr Hanson and Ms [A] are the parents of [Child 1], born June 1993, and [Child 2], born February 1995. Mr Hanson had been assessed by the Child Support Agency (CSA) as liable to pay child support to Ms [A]; the child support case ended in 2013.

2. Mr Hanson has made a number of applications to the Tribunal over the years. This matter concerns a decision by the CSA on 21 May 2019 to refuse to grant Mr Hanson an extension of time to object to a decision the CSA says was notified to Mr Hanson on 28 May 2010. His objection was made on 13 February 2019, almost nine years after the original decision.

3. The correspondence issued to Mr Hanson on 28 May 2010 includes copies of child support assessments covering the period 1994 to 2009; Mr Hanson takes particular umbrage with the reference in those documents to Court varied assessments which he has “never been served with”, despite many attempts including under FOI and with the Courts to uncover  orders. Mr Hanson suggests such orders may have been made in another Court case (Ms [A] has a child from another relationship) and may not have involved Mr Hanson as a party.

4. The CSA, in its decision letter of 21 May 2019, writes the following:

   …

   I can confirm the only variation to the assessment for that period comes from the Change of Assessment (Part 6A) decision made on 7 May 2009. This set [Mr Hanson’s] Adjusted Taxable Income at $70,000 for the periods 1 July 2008 to 30 September 2008; and from 1 October 2008 to 8 February 2009; and from 9 February 2009 to 31 May 2010.

   It is understandable why [Mr Hanson] thought that Court Varied Assessment (sic) had been made, because some of the assessment notices that were re-issued in May 2010 had incorrect references to a Court Varied Assessment.

   I can confirm that there are no Court varied Assessments for the period in question, and that we have never received any Departure Orders that would require such Court Varied Assessments to be made.

   …

5. Mr Hanson applied to the Tribunal for review on 24 June 2019; he participated in the Tribunal’s hearing by conference telephone.

CONSIDERATION

Background and legislative framework

1. A parent may object to a decision made by the CSA pursuant to section 80 of the Child Support (Registration and Collection) Act 1988 (the Registration Act). 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.

2. The decision to which Mr Hanson wished to object was notified to him by no later than the letter dated 28 May 2010. Regulation 14 of the Child Support (Registration and Collection) Regulations 1988 provides that a notice may be served by the CSA 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. Mr Hanson‘s objection to the original decision was made almost nine years after he received it.

3. 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 for 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. The Registration Act does not set out criteria for consideration when considering an application for an extension of time within which to object. However, the Child Support Guide (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.

4. 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 …

5. 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) 43 ALR 535 at 550) or of “established practices” (Douglas v Allen (1984) 1 FCR 287).

Explanation for the delay

1. Mr Hanson told the Tribunal that he has repeatedly raised the issue with the CSA over the years; this is not a case of him “sitting on his hands”. He said he has complained to politicians, pursued FOI, and approached the Court, which has advised him there are no relevant orders.  

2. The Tribunal observes that Mr Hanson has, over the years, been advised of his formal objection rights verbally and in writing; however, the Tribunal accepts that it is likely he raised the matter of the purported Court varied assessments on a number of occasions, and as a result of miscommunications or misunderstandings, a formal objection process was not put in train.

3. In the circumstances, the Tribunal is inclined to extend the benefit of the doubt to Mr Hanson. The Tribunal accepts he has offered an adequate, if not particularly compelling (given the protracted length of the delay), explanation for not bringing a formal objection within the prescribed period.

Merits of the objection

1. There is no point granting an extension if an application is unlikely to succeed.

2. The problem here is that there is absolutely no evidence of any Court order which would impact Mr Hanson’s child support assessment during the relevant period. It appears multiple avenues have been pursued and investigated over the years, and no evidence whatsoever found of any relevant orders. In the event Ms [A] or another party to a different child support case had supplied orders relevant to Mr Hanson’s case, such orders would have been applied, and retained by the CSA. The Tribunal simply could not be satisfied any relevant order was ever made; the most plausible explanation is that offered by the CSA, namely that assessment notices inadvertently refer to a Court varied assessment when no such order was made.

3. It follows the Tribunal is not able to conclude that an application, if permitted to proceed, would have any prospects for success. This weighs very heavily against granting an extension.

Potential prejudice

1. The Tribunal is particularly concerned about possible prejudice to Ms [A] if an application were permitted to proceed. She has been entitled to presume matters concerning child support have long since been drawn to a close given the case ended in 2013. Exposing her to decisions made by the CSA as far back as 2009 could visit a high level of disadvantage and potential prejudice to her.

2. This factor weighs very heavily against granting an extension.

Public interest considerations

1. The statute provides for a 28-day period 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, even a brief one, is not to be automatically granted.

Conclusion

1. The Tribunal understands Mr Hanson’s longstanding frustration in terms of his relationship with the CSA; matters have not been assisted by what the Tribunal considers the erroneous references by the CSA to the existence of a Court varied assessment.

2. However, there is no point giving Mr Hanson an extension to object as his application must necessarily fail in the absence of any evidence of any relevant orders which impact on the assessments made at the time. The Tribunal is also particularly concerned about possible prejudice to Ms [A] given the delay, and given the child support case ended some six years ago.

3. In all the circumstances, the Tribunal considers the interests of justice are best served by refusing to grant an extension of time for Mr Hanson to bring an objection.

4. As this is the same conclusion as the CSA, that decision will be affirmed.

DECISION

The decision under review is affirmed.