Haynes and Child Support Registrar (Child support)

[2019] AATA 4878

Haynes and Child Support Registrar (Child support) [2019] AATA 4878 (17 September 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC016886

APPLICANT:  Mr Haynes

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member S Letch

DECISION DATE:  17 September 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 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

BACKGROUND

1. Mr Haynes and Ms Haynes are the parents of [Child 1] and [Child 2], for whom Mr Haynes was assessed by the Child Support Agency (CSA) to pay child support.

2. On 20 June 2019, Mr Haynes applied to the CSA for an extension of time in which to object to an earlier objection decision dated 1 May 2018 (advised by letter to Mr Haynes dated 7 May 2018) which set Ms Haynes’ income at $40,000 for the period 1 March 2018 to 1 November 2018.

3. Mr Haynes’ application for an extension of time within which to lodge an objection was refused by a CSA objections officer on 29 June 2019. Mr Haynes then applied to the Tribunal for review on 5 July 2019. Mr Haynes 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 Haynes wished to object was made on 1 May 2018 and notified to Mr Haynes by letter dated 7 May 2018. 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 Haynes’ objection to the original decision was made more than 12 months 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 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. 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 Haynes’ articulate written submission to the Tribunal was consistent with the case he put during the hearing:

   1. No Evidence

   I claimed that my delay in lodging this appeal & my previous withdrawal of appeal was because I had no new evidence. Child Support (CS) claim my delay in lodging an appeal was due to the fact I had no evidence regarding Ms Haynes’ income. This is not correct.

   I had previously lodged all necessary documentation for CS to conclude that Ms Haynes’ income was greater than her 2016-2017 ATI of $15,000 & greater than CS $40,000 assessment after my original appeal. Ms Haynes’ recent 2017-18 ATI of $45,994 confirms my original documentation & appeal provided a true & correct assessment of her income.

   2. Prejudice to the Community - 'withdrew that application with no reason'

   I was not aware that I was required to give a reason for withdrawing an appeal or that by not giving a reason it would impact on ability to successfully appeal in the future. Rather, being incredibility frustrated at this CS process, I choose to stop the conversation with the CS officer rather than getting into a pointless argument.

   3. Merit

   I have been consistent in my objection/request for CS to not use Ms Haynes’ 2016-17 ATI of $15,000 in calculating child support. As I have explained numerous times over the phone & within my documentation, the 2016-17 income was generated when Ms Haynes’ was a full time student & part time worker. In February 2018 when I lodged my original objection Ms Haynes’ income was far greater because she was no longer studying & actively had 4 jobs.

   My latest appeal is not because I am 'now be dissatisfied with an outcome'. My appeal & request for extension is because I now have 100% proof, via Ms Haynes’ 2017-2018 ATI, that her income was 200-300% greater than she identified with CS & that CS assessment in March 2018 was also incorrect.

   On Merit, my evidence submitted to CS & my conclusion of Ms Haynes’ income was far more accurate than that of Ms Haynes or CS.

   Consequently, I believe that these incorrect decisions by CS should be over tuned.

2. As explained to Mr Haynes during the hearing, child support assessments, under normal formula arrangements, generally apply on a “rolling financial year basis”. This means that it is possible for a person to benefit from a sharp increase in income during a tax year and have that increase not take effect until November or thereabouts when tax returns have been filed and assessed. This is an intended operation of the general scheme; the scheme does not operate on the basis that for each and every financial year (or other period), there is some accounting or reconciliation process for the assessment of every single dollar.

3. Whilst the Tribunal understood Mr Haynes’ case, he was clearly advised of his right to object within a 28-day period. It will not usually be the case that the availability of later evidence will give rise to justification for a delay. Ms Haynes’ income was fluctuating and uncertain; there is no clear evidence which would suggest she deliberately misrepresented her position to the CSA. At face value, the decision appears entirely reasonable on the evidence available at the time.

4. The Tribunal therefore does not consider Mr Haynes has a compelling explanation for what is a very lengthy delay.

Merits of the objection

1. Departure determinations, by their very nature, involve the exercise of a broad discretion. Whilst the Tribunal is of the view the decision was reasonable on the evidence available at the time, with hindsight, it could not be determined that an objection, if permitted to proceed, would be devoid of possible merit.

Potential prejudice

1. The Tribunal is particularly concerned about the possible prejudice to the other party, who has been entitled to rely, and budget, upon since the decision was made more than a year ago.

2. In the event it could be established there was some type of fraud perpetrated by Ms Haynes in the assessment process, this would militate against a conclusion that Ms Haynes would suffer prejudice. It does not appear there is a serious suggestion Ms Haynes had provided any demonstrable false information or evidence to the CSA.

3. The Tribunal considers this factor weighs heavily against granting an extension, particularly given the length of the delay.

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. Mr Haynes was advised of his objection rights; the Tribunal has concluded his explanation for what is a very lengthy delay is a compelling factor which favours an extension being granted. As explained to Mr Haynes, child support assessments are not intended to account for every single dollar during a financial year, or some other period. Of particular concern is the possible prejudice to the other party.

2. In weighing the relevant factors, the Tribunal does not consider the interests of justice are served by granting an extension of time.

3. As the Tribunal has reached the same decision as the CSA in refusing Mr Haynes’s application for an extension of time, that decision is affirmed.

DECISION

The decision under review is affirmed.