Hogg and Child Support Registrar (Child support)

[2020] AATA 5968

Hogg and Child Support Registrar (Child support) [2020] AATA 5968 (28 October 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC019859

APPLICANT:  Mr Hogg

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member F Staden

DECISION DATE:  28 October 2020

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that Mr Hogg is granted an extension of time in which to lodge an objection to a decision made on 22 May 2020.

CATCHWORDS

CHILD SUPPORT – refusal to grant an extension of time to object – change of assessment – delay occurred because waiting on information from department – delay was understandable – the extension of time should be granted - decision under review set aside and substituted

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.

REASONS FOR DECISION

BACKGROUND

1. Mr Hogg and Ms [A] are the separated parents of three children. Two of the children, born 2005 and 2012, were the subject of a child support assessment during the relevant period here. At that time, the older child was recorded as being in the greater than primary care of Ms [A] (100%) and the younger child as being in the shared care of Mr Hogg (40%) and Ms [A] (60%).

2. On 13 March 2020, Ms [A] lodged a change of assessment application (application) with Services Australia – Child Support (Child Support). After discussion, it was determined that the basis of her application was that the child support assessment was unfair because it did not properly take into account Mr Hogg’s income, property and financial resources (Reason 8A) or his earning capacity (Reason 8B).

3. A 9 April 2018 decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) was in place at the time of Ms [A]’s application:

   ·     For the period 26 July 2016 to 30 June 2020, Mr Hogg’s adjusted taxable income is varied to $148,037; and

   ·     For the period 1 July 2018 to 30 June 2020, Mr Hogg’s annual rate of child support is increased by $2,800.

4. On 22 May 2020, a Child Support decision maker found Reason 8A and Reason 8B established and made the following decision:

   ·     For the period 1 July 2020 to 30 June 2021, Mr Hogg’s adjusted taxable income is set at $150,110; and

   ·     For the period 1 July 2021 to 30 June 2022, Mr Hogg’s adjusted taxable income is set at $153,713.

5. Mr Hogg and Ms [A] were each informed of the 22 May 2020 decision by letter dated 26 May 2020. The letter included information about objection rights and stated that a review must be requested within 28 days of receipt of the letter.

6. On 6 July 2020, Mr Hogg lodged a written objection and a request for an extension of time.

7. On 1 September 2020, Child Support decided to refuse Mr Hogg an extension of time and informed him of this by letter of that date.

8. On 15 September 2020, Mr Hogg applied to the tribunal for review of the 1 September 2020 refusal decision. A hearing was conducted on 28 October 2020. Mr Hogg gave sworn evidence by telephone. The tribunal had before it documents provided by Child Support (214 pages), a copy of which was provided to Mr Hogg prior to the hearing.

9. Relevant aspects of the evidence are referred to in the consideration below.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (the Registration Act) and the Child Support (Assessment) Act 1989 (the Assessment Act). The tribunal also had regard to the Child Support Guide, Child Support’s online technical and policy guide to the administration of the child support scheme.

2. Under section 80 of the Registration Act, a liable parent such as Mr Hogg can object to a Child Support decision to make or refuse to make a determination under Part 6A of the Assessment Act about a departure from the administrative assessment. Section 81 of the Registration Act provides that such an objection must be lodged within 28 days from when notice of the decision is given to the person.

3. Under section 82 of the Registration Act, a person may apply for an extension of time in which to lodge an objection. Such an 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 as required by section 81”.

4. Section 83 of the Registration Act provides that the Registrar must consider the application for an extension of time, grant or refuse the application and advise the person of the decision in writing. If refused, section 89 of the Registration Act allows the person who applied for the extension of time to apply to this tribunal for review of that decision.

5. Mr Hogg was sent a copy of the 22 May 2020 decision with a covering letter dated 26 May 2020. He phoned Child Support on 4 June 2020 to question the decision and request an explanation. Taking 4 June 2020 as the date of Mr Hogg’s receipt of the letter, he then had 28 days to 2 July 2020 in which to lodge an objection. Mr Hogg lodged his objection on 6 July 2020 and was therefore four days out of time.

6. The key issue in this case is whether Mr Hogg’s 6 July 2020 request for an extension of time within which to object to the 22 May 2020 decision should be granted.

CONSIDERATION

1. The Registration Act does not set out the criteria to consider when determining an application for an extension of time within which to object. The Child Support Guide at 4.1.5 “Extensions of time to lodge objections”, states that the key factors are the reason for the delay, whether the person has rested on their rights, the merits of the objection and any potential prejudice to the other party or the public. These factors are consistent with general principles of administrative law and the tribunal identified no reason to depart from them.

Reasons for the delay and whether Mr Hogg rested on his rights

1. Mr Hogg argued that his delay in lodging an objection to the 22 May 2020 decision was because he was waiting for a promised explanation of that decision. Child Support records indicate that:

   ·     On 4 June 2020, Mr Hogg queried the 22 May 2020 decision and was told that the decision maker would contact him but probably not until the following week;

   ·     The decision maker made an unsuccessful attempt to contact Mr Hogg on 5 June 2020. No other attempted contacts are recorded; and

   ·     Mr Hogg contacted Child Support on 6 July 2020 to query why he had not heard from the decision maker and lodged his objection on that date.

2. Child Support made only the 5 June 2020 attempt to contact Mr Hogg to explain the 22 May 2020 decision. This was an earlier call than Mr Hogg had been told to accept. The tribunal questioned why Mr Hogg waited so long, around a month, before telephoning Child Support to query the lack of contact. He argued that he was simply waiting for the call back.

3. It can be argued that Mr Hogg should have been more proactive in his dealings with Child Support. However, it is also the case that Child Support did not contact Mr Hogg as arranged, despite his having indicated that he disagreed with the decision and so was likely to lodge an objection. In the 1 September 2020 decision under review here, Child Support accepted that Mr Hogg “may have needed clarification/advice” prior to submitting his objection.

4. The tribunal found that Mr Hogg’s delay in lodging an objection was understandable in the circumstances of this case and that he did not rest on his rights.

Merits of the objection

1. The 22 May 2020 decision assigned Mr Hogg an income of over $150,000 a year. Mr Hogg told the tribunal that the basis of his objection is that he does not earn the income attributed to him by that decision.

2. A difficulty in forming a view on the merits of Mr Hogg’s case is that the material he lodged on 7 September 2020 provided little significant evidence other than proof of his receipt of Centrelink payments from 1 July 2019. The remaining evidence was: medical evidence in relation to a broken [Body part 1] and other injuries Mr Hogg experienced on 3 February 2020; [Bank 1] statements for account [number deleted] for the period 11 May 2019 to 11 May 2020 (not the account into which his Centrelink payments are paid); and Child Support transaction statements for the period 31 July 2014 to 31 December 2019.

3. Mr Hogg did not provide statements for other bank accounts as referenced in the 9 April 2018 tribunal [decision]. Nor did he provide such previously requested or suggested evidence as information about the company [COMPANY 1] ; job applications made; living expenses; and any rental income.

4. Mr Hogg argued that he had tried to upload additional material but had experienced problems with the Child Support computer system. He also stated that Child Support had not clearly informed him what evidence was required.

5. On balance, the tribunal decided that Mr Hogg should be given an opportunity to provide supporting evidence for his objection so that its merit can be properly assessed. The tribunal discussed in detail with Mr Hogg what that evidence would be. He stated that he would provide, for example, statements from all accounts held, alone or jointly, in financial institutions and details of the changed status of [COMPANY 1] and its dealings over time, to show that the income he has been assigned is inappropriately high. Mr Hogg understands that any failure to provide such evidence for the objection process in a complete and timely way could lead an objections officer to draw adverse conclusions about, for example, Mr Hogg’s access to financial resources.

Prejudice to the other party

26.The tribunal accepts that Ms [A] is entitled to know how much she can expect to receive in child support from Mr Hogg so that she can arrange her financial affairs accordingly. However, given the large amount of Mr Hogg’s arrears (around $20,000 when he lodged his application under review here), the impact on Ms [A]’s expenditure is currently limited. The tribunal therefore found that there would not be significant prejudice to Ms [A] if Mr Hogg’s extension of time request was granted.   

Prejudice to the general public

27.The general public has the right to expect that a matter such as an objection to an assessment application will be dealt with in a timely manner. However, in the particular circumstances of this case, the tribunal found that extending the period in which Mr Hogg can object by less than two weeks was not a significant challenge to that expectation.

Conclusion

28.The tribunal found that the delay in Mr Hogg’s objection was understandable in the circumstances; that Mr Hogg may have an arguable case; and that the prejudice to the other party and the general public does not warrant refusing an extension of time. The tribunal therefore concluded that the interests of justice are best served by granting Mr Hogg an extension of time in which to lodge an objection to the 22 May 2020 decision.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that Mr Hogg is granted an extension of time in which to lodge an objection to a decision made on 22 May 2020.