Holder and Child Support Registrar (Child support)

[2019] AATA 4864

Holder and Child Support Registrar (Child support) [2019] AATA 4864 (23 August 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2019/HC016493 and 2019/HC016494 and 2019/HC016496

APPLICANT:  Mr Holder

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member A Schiwy

DECISION DATE:  23 August 2019

DECISION:

The tribunal affirms the decision not to grant an extension of time to object to:

·     The decision made on 24 July 2018 to accept a declared income for Mr Holder of nil from 17 July 2018;

·     The decision made on 13 June 2018 not to accept ‘rent’ of $250 per week as non-agency payments or prescribed non-agency payments.

The tribunal sets aside the decision not to grant an extension of time to lodge an objection to the decision to use an income of $48,308 in the child support assessment for Cheryl for the period 4 May 2018 to 16 July 2018 as Mr Holder lodged his objection within time.

CATCHWORDS

CHILD SUPPORT – application for extension of time – no merit – 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.

REASONS FOR DECISION

BACKGROUND

1. These applications are about whether or not Mr Holder should be granted extensions of time to lodge three objections.

2. Mr Holder and Ms Holder are the separated parents of three children and a child support case was registered in 2004.   Mr Holder and Ms [A] are the separated parents of a further three children and a child support case was registered in 2016. Ms [B] is the mother of the child and the Department of Human Services (Child Support) accepted her application for child support which named Mr Holder as the father in September 2018.

3. The applications relate to the following three decisions:

• HC016493:     On 24 July 2018 Child Support decided to accept a declaration of income made by Mr Holder (nil income for 2016-2017) and apply this from 17 July 2018.

• HC016494:     On 3 September 2018 Child Support decided to accept an application for child support from Ms [B] and assessed Mr Holder to pay child support from 4 May 2018 based on a provisional income for 2016-17 of $48,308.  (Mr Holder denies being the father of the child however this is not a matter that can be objected to; however he is able to object to the amount of income being used in the assessment.  The tribunal noted that Mr Holder has been advised about what action he can take if he does not believe he is the child’s father).

• HC016496:     On 13 June 2018 Child Support refused to accept non-agency payments relating to non-cash payments made to Ms [A].

1. On 9 March 2019 Mr Holder lodged objections to the decisions together with an application for an extension of time to lodge his objections. 

2. On 16 April 2019 a Child Support employee decided not to grant Mr Holder an extension of time to lodge the objections.

3. On 8 May 2019 Mr Holder made applications to this tribunal for an independent review of Child Support’s decisions not to allow extensions of time.

4. A hearing into the applications was held by the tribunal on 22 August 2019.  Mr Holder participated in the hearing via teleconference.  It was very difficult to communicate with Mr Holder as he had difficulty in hearing.  The call ‘dropped out’ after about 20 minutes and the tribunal made several attempts to reconnect the call.  The tribunal officer then emailed Mr Holder and gave him the opportunity to email any further comments by close of business on 23 August 2019.  No emails were received.

5. The tribunal had before it relevant documents extracted from Mr Holder’s Child Support file and computer records, a copy of which were mailed to Mr Holder prior to the tribunal hearing.  Mr Holder stated that he never received the papers.

ISSUES

1. The law relating to a person’s right to seek review of a decision of the Registrar is contained in the Child Support (Registration and Collection) Act 1988 (the Act).

2. Mr Holder is a resident of [Country] which is a reciprocating jurisdiction for Child Support purposes.  Where a parent is a resident of a reciprocating jurisdiction, section 81 of the Act requires that they must lodge an objection to a decision of the Registrar within 90 days after a notice of the decision is served on them.

3. Where the period for lodgement has ended, the person may send the objection to the Registrar along with an application requesting that the objection be treated as if it was duly lodged, that is, that it was lodged within the allowed time (section 82 of the Act).  Section 83 of the Act then provides that the Registrar must consider the application for extension of time, grant or refuse that application and advise the person of the decision in writing.  Section 89 of the Act allows the person who applied for the extension of time, to apply to this tribunal for a review of that decision.

CONSIDERATION

Date Mr Holder lodged his objections

1. Child Support has stated that Mr Holder lodged his objections on 9 March 2019 and it is clear that he did send an objection letter that day.  However Child Support included in their papers an email from Mr Holder to Child Support dated 6 November 2018 that states he received a bundle of mail on 2 November 2018 including various letters from Child Support.  In the email he:

   ·notes the letter dated 24 July 2018 and assessment dated 24 July 2018 for the period 1 November 2017 to 16 July 2018 and states “OBJECTION … I am not in receipt of any income …  I wish to APPEAL … I wish to MAR.”

   ·notes the letter dated 3 September 2018 about the assessment for the child and states “OBJECTION… I am not in receipt of any income …  I wish to APPEAL … I wish to MAR.”

   ·notes the letter date 13 June 2018 about the non-agency payments  and states “She lives alone in my house ..  I pay rates and Water … Instead of Child Support I allow her to stay at the house and I live elsewhere … Your letter states Insufficient Proof of Payment … I do not understand  .. There is no payment undertaken – a service was provided By agreement between [Ms A] and I , [Ms A] lives rent free … please explain what Proof of Payment you require …”

2. It is clear from the wording of this email that Mr Holder was objecting to all three decisions under review.  It is not clear what action was taken with this email.  Based on the papers provided by Child Support, it appears it was not acted upon.  On 20 February 2019 Mr Holder sent a further email to Child Support referring to emails he had sent earlier (the email dated 6 November 2018 includes a document entitled ‘4 Nov 18” and he refers to this document title).  Child Support sent a letter dated 17 April 2019 to Mr Holder addressing complaints he had made.  It refers to his letter dated 4 November 2018 and does not state that Child Support did not receive the letter.  The tribunal was therefore satisfied that Mr Holder lodged valid objections to all three decisions on 6 November 2018.

3. The second decision being reviewed, HC016494, relates to a decision made on 3 September 2018.  The due date for objection is therefore not until December 2018.  The tribunal was therefore satisfied that the objection to this decision (income used in the child support assessment for [the child]) was lodged in time.

HC016493 and HC016496

1. After allowing for postal office processing and delivery (in accordance with the Evidence Act 1995), the objections for these decisions were due on 4 November 2018 and 24 September 2018 respectively.  The first objection under review was therefore two days late and the other was around six weeks late.

2. Mr Holder has stated that the mail system in [Country] is very unreliable and mail can sit at the central storage area in [City] for months.  He often gets bundles containing many items of mail delivered at a time and stated that this was the case on 2 November 2018 when he received a large bundle including many letters from Child Support (there were other letters included with the three decision letters under review).  He wrote his objection to the decisions on 4 November 2018 and emailed them to Child Support on 6 November 2018.

3. In Brisbane South Regional Health Authority v Taylor [1996] HCA 25, the High Court, in dealing with an extension of time case and the general concept of time limitation periods, noted that while an extension of time is the exception to the general rule, there are legislative provisions which, in the circumstances of the facts of an individual case, may indicate that justice is served by the general rule being overruled.

4. In making this decision, the tribunal considered 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 (Hunter Valley Developments). In that case the Federal Court said that an extension of time should not be granted unless it was proper to do so, noting that in general, applications or proceedings commenced outside of a prescribed time limit will not be considered. The Court also said that there must be an acceptable explanation for the delay and that it must be fair and equitable in the circumstances to extend time. The Federal Court identified several factors to take into account when deciding whether to grant an extension of time.

5. In Brown v Commissioner of Taxation [1999] FCA 563, Hill J reviewed the principles set out in the Hunter Valley Developments case in the context of a person seeking an extension of time to lodge an objection against an assessment of income tax. In that case, Hill J commented that Wilcox J in Hunter Valley Developments never suggested he was laying down a series of principles to be applied in every case, and that the factors would serve as a guide and were not exhaustive.

6. The Administrative Appeals Tribunal (second review) applied the principles set out in the Hunter Valley Developments case in Mulheron and Australian Telecommunications Corporation [1991] AATA 673 (Mulheron). The authorities, including Hunter Valley Developments and Mulheron, establish that when considering whether to exercise the discretion to allow an extension of time, a decision-maker should consider and balance a range of factors including:

   ·The reasons for the delay and whether the applicant rested on their rights or took action to make the decision-maker aware that the decision was being contested;

   ·Any prejudice to the other party including any difficulties that they will experience in providing evidence as a result of the delay;

   ·The merits of the substantive application;

   ·Prejudice to the general public, and considerations of fairness as between the applicant and other persons otherwise in a like position.

HC016493

1. The Child Support papers show that up until 17 July 2018 Mr Holder’s child support liability was based on two-thirds of the Male Total Average Weekly Earnings (‘2/3 MTAWE’) - $48,308.

2. The tribunal noted that Mr Holder was sent an assessment on 6 January 2018 for the child support period 17 February 2018 to 16 May 2019 (based on a provisional income of $48,308).  There is no evidence that he disputed this assessment although in a letter dated 14 February 2018 (about residency) he states he had not heard from Child Support from July 2017 until 1 February 2018 when he received an email from them.  He states in this letter that his income is ‘practically zero’.  He also asks for communication to be by email and notes that due to deafness it is impractical to communicate by telephone.  In an email dated 19 March 2018 he again discusses his income and he has requested the minimum annual rate (‘MAR’) to apply.

3. On 17 July 2018 Mr Holder emails Child Support and attaches a form declaring that his income was nil and requesting MAR to apply.  On 24 July 2018 a decision was made to assess his liability based on his declared income of nil from 17 July 2018.  (A decision was also made not to accept his request for the MAR to apply; the fixed annual rate was applied.)

4. The decision under review by the tribunal is the decision to accept the declared income of nil from 17 July 2018 rather than from an earlier date. 

25.Mr Holder has not provided an income tax return to Child Support and they have determined his income to be two-thirds MTAWE under section 58 of the Child Support Assessment Act 1989 (Assessment Act).

26.Section 58A of the Assessment Act (as amended from 23 May 2018) requires the Registrar to immediately amend an administrative assessment if the Registrar subsequently makes a later determination under section 58 and the new amount differs. In this case the Registrar did make a subsequent determination that Mr Holder’s income from 17 July 2018 was nil and this was applied from the date the Registrar received Mr Holder’s declaration of income.

27.Paragraph 58A(2)(c) allows for a retrospective determination if circumstances prescribed by the regulations apply.  Section 7B of the Regulations set out the prescribed circumstances and they include where the parent was unaware of the assessment or prevented from contacting Child Support due to being in a remote location.  In this case Mr Holder was aware of the assessment and was able to contact Child Support via email.  He did not provide the declaration until 17 July 2018.  It does not appear that any special circumstances prevented him from lodging the declaration earlier.

28.The tribunal decided that Mr Holder’s objection to the date of application of the reduced income would therefore have no chance of success; that is, there is little or no merit to his objection.

1. Mr Holders’ objection was only three days late however this does allow a significant amount of time to account for problems with overseas delivery. 

2. The tribunal decided that an extension of time should not be granted and the most significant factor in this decision is the finding that Mr Holder’s objection has very little or no merit.

HC016496

1. Mr Holder owns a property in Australia that Ms [A] is living in rent free since he left the house in November 2016.  He stated that the rent was $250 per week.  Ms [A] told Child Support she did not pay rent but paid for the utilities.  She said she had not heard from Mr Holder and they were still going through a property settlement.  She denies any agreement that she would pay rent or that the rent would be in lieu of child support.  Child Support decided that the payments were not to be credited as non-agency payments and a letter notifying them of the decision was posted to Mr Holder and Ms [A] on 13 June 2018.

2. The tribunal noted that Mr Holder’s objection was over six weeks late and nearly five months after the notice was sent by Child Support. 

3. In addition the tribunal did not consider there was any merit to his objection.  There was no evidence provided by him that there was any mutual intent for rent to be offset against child support payments.  For a prescribed non-agency payments (where mutual intent is not necessary) it must be shown that Ms [A] was liable to pay rent of $250.  Given that property settlement has not occurred this would be difficult to demonstrate.

4. The tribunal decided that an extension of time should not be granted and the most significant factor in this decision is the finding that Mr Holder’s objection has very little or no merit.

DECISION

The tribunal affirms the decision not to grant an extension of time to object to:

·     The decision made on 24 July 2018 to accept a declared income for Mr Holder of nil from 17 July 2018;

·     The decision made on 13 June 2018 not to accept ‘rent’ of $250 per week as non-agency payments or prescribed non-agency payments.

The tribunal sets aside the decision not to grant an extension of time to lodge an objection to the decision to use an income of $48,308 in the child support assessment for [the child] for the period 4 May 2018 to 16 July 2018 as Mr Holder lodged his objection within time.