Jasper and Child Support Registrar (Child support)

[2018] AATA 3075

Jasper and Child Support Registrar (Child support) [2018] AATA 3075 (10 July 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/PC013968

APPLICANT:  Mr Jasper

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  10 July 2018

DIRECTION TO ALTER DECISION OR REASONS FOR DECISION

Pursuant to section 43AA of the Administrative Appeals Tribunal Act 1975, the following alteration is made to the written statement of reasons for the decision.

Paragraph 16 of the written statement of reasons for the decision is altered to read:

The Tribunal finds that Mr Jasper’s application to the Tribunal on 1 May 2018 in relation to the refusal decision made on 9 February 2018, of which he was notified by electronic means, is approximately 52 days out of time.

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.

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2018/PC013968

APPLICANT:  Mr Jasper

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                10 July 2018

APPLICATION:

An extension application made on 1 May 2018 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 9 February 2018 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 review – No satisfactory explanation of the delay – Unlikely the Tribunal would set aside the Registrar’s decision – Application refused

STATEMENT OF REASONS

1. Mr Jasper and Ms Jasper are the parents of [Child 1] (born March 2004) and [Child 2] (born August 2005).  Mr Jasper is the parent liable to pay child support under the assessment.

2. On 20 October 2017 Ms Jasper applied to the Department of Human Services, Child Support (the Child Support Agency) for a change to the assessment.

3. On 27 November 2017 the Child Support Agency made the decision to change the assessment so that for the period 15 September 2017 to 31 October 2018 Mr Jasper’s adjusted taxable income is set at $234,659 per annum. 

4. This was done on the basis of Mr Jasper’s earning capacity (the ground commonly known as Reason 8B).

5. On 8 January 2018 Mr Jasper lodged an objection with the Child Support Agency to that decision and on 4 February 2018 he applied for an extension of time to object (the first extension of time application).

6. On 9 February 2018 the Child Support Agency refused to grant the extension application (the refusal decision) and Mr Jasper was notified of the refusal decision by electronic means on the same date.

7. On 1 May 2018 Mr Jasper lodged an application with the Administrative Appeals Tribunal (the Tribunal) for an extension of time (the second extension application) for review of the refusal decision.

8. The matter was considered on 10 July 2018 on the papers (consistent with the Tribunal’s ‘Child Support Review Directions’).  The Tribunal had before it a bundle of papers provided by the Child Support Agency.

9. The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (the Act).

10. The issue which arises in this case is whether or not to grant Mr Jasper’s request for an extension of time to review the refusal decision.

11. Part VIIA, Division 2 of the Act sets out the procedures for applying to the Tribunal for a review of an objection decision made by the Child Support Agency as well as applying for an extension of time for such a review in the event the application is not made within the prescribed period.

12. Paragraph 29(1)(d) and  subsection 29(2) of the Administrative Appeals Tribunal Act 1975, establish that an application for review must be made within 28 days after being served with notice of the decision.

13. If the 28 day period to apply for review has ended then a written application for an extension of time can be made under section 91 of the Act.  Mr Jasper was advised by the Child Support Agency about the outcome of the refusal decision by electronic means on 9 February 2018.  Given Mr Jasper lodged his application with the Tribunal more than 28 days after he was served with notice of the refusal decision the Tribunal is satisfied that an extension of time was required.

14. Under subsection 92(1) of the Act, the Tribunal must consider and grant or refuse an extension application.  In doing so, the Tribunal considers 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. In that case, the Federal Court said that an extension of time should not be granted unless satisfied it was proper to do so, noting that, in general, applications or proceedings commenced outside of a prescribed time limit will not be considered.

15. A review of other relevant authorities establishes that when considering whether or not to allow an extension of time the Tribunal should consider and balance a range of factors.  These factors are a guide and are not exhaustive, but generally include:

    ·     the reasons for the delay and whether the applicant rested on their rights;

    ·     the merits of the substantive application;

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

    ·     any prejudice to the general public; and

    ·     fairness in granting an extension of time.

Reasons for the delay

1. The Tribunal finds that Mr Xxx’s application to the Tribunal on 1 May 2018 in relation to the refusal decision made on 9 February 2018, of which he was notified by electronic means, is approximately 52 days out of time.

2. In requesting an extension of time Mr Jasper states as the reasons for the delay that he was “seeking independent advice” as he did not know how to handle the matter.

3. The 28 day period within which an application for review must be made is calculated starting on the day after the relevant notice of decision is ‘given to’ or ‘served on’ the person by the Child Support Agency. To determine when a notice is given to or served on a person by electronic communication, section 14A of the Electronic Transactions Act 1999 applies.  The notice served or given by electronic communication is received by the person when it ‘reaches’ that electronic address.  In this case the notice reached Mr Jasper on 9 February 2018.

4. The notification of the refusal decision provided by the Child Support Agency dated 9 February 2018 outlines what to do if Mr Jasper disagreed with the decision.  This includes asking the Tribunal to undertake a review “within 28 days from the date you receive this letter.”

5. The Tribunal also notes in evidence provided by the Child Support Agency that Mr Jasper requested another copy of the refusal decision on 20 March 2018 and yet did not submit his application for review until 1 May 2018.

6. Given this correspondence and the nature of the first extension application it is unlikely Mr Jasper was unaware of the significance of failing to apply to the Tribunal for review within the prescribed 28 day period even though he was seeking independent advice on the matter.

7. The Tribunal finds the reason provided by Mr Jasper for the delay in applying to the Tribunal for review of the refusal decision to be unsatisfactory.

Merits of the application

1. To determine if the application for review has merit the Tribunal is required to consider whether or not another decision maker might consider it was proper to allow Mr Jasper an extension of time to object to the decision to change the assessment.

2. Mr Jasper told the Child Support Agency he had posted his objection letter to the decision made on 27 November 2017 on 19 December 2017 and yet it was not received until 8 January 2018.  He said delays in postage were out of his control. 

3. In considering this as a reason for objecting late, the Child Support Agency noted that his objection letter was only three days late and was satisfied he had demonstrated a reasonable explanation for the delay.  The Child Support Agency found Mr Jasper had not rested on his rights.

4. The Child Support Agency also considered the merits of Mr Jasper’s application for an extension of time to object.  Mr Jasper stated he was objecting to the change of assessment decision on the grounds the Child Support Agency had made the decision without giving him the right to rebut the presumption that resigning from employment was substantially motivated by the effect this would have on the child support assessment.  He also disputed the income level set by the Child Support Agency in the decision when he clearly no longer earned that amount.  Mr Jasper also said the high income he had been earning involved him working 28 days straight and being home for only 11 weeks a year which was not sustainable in the long-term and not conducive to a healthy work-life balance.

5. The Child Support Agency noted in making its decision that Mr Jasper’s income for the purposes of child support was based on his 2016-17 adjusted taxable income of $234,659 until 14 September 2017 and then his estimate of $0 took effect from 15 September 2017.  The Child Support Agency also noted that Mr Jasper had earned in excess of $200,000 in 2014-15, 2015-16 and 2016-17 and had voluntarily resigned from his employment. 

6. Given Mr Jasper received total payments of $372,247, including his termination payment, from one employer in 2016-17 and then made another estimate of income of $323,258 effective from 6 November 2017 the Child Support Agency stated it did not consider there was merit to Mr Jasper’s objection to reduce his earnings for the period 1 September 2017 to 5 November 2017.  On balance, the Child Support Agency could not be satisfied there may be merit to his objection.

7. The Child Support Agency then considered the likelihood of any prejudice to Ms Jasper and found that she would be afforded the opportunity to participate in the objection process and there would be no prejudice to Ms Jasper should the extension of time be granted.  The Child Support Agency did find, however, there would be some prejudice to the general public.

8. The Child Support Agency made the decision not to grant Mr Jasper an extension of time as while there was a reasonable excuse for the delay there may not be merit to his objection and there would be some prejudice to the general public.

9. The Tribunal is of the view that the Child Support Agency properly considered the various factors required before making the refusal decision.  Given this, even if the Tribunal did grant the second extension application and then went on to hear the first extension application, it is unlikely the Tribunal would grant the first extension application, meaning there would be no need to consider Mr Jasper’s objection.

10. As it is unlikely the Tribunal would grant the first extension application if the matter was heard the Tribunal therefore finds Mr Jasper’s application has little merit.

Potential prejudice to the other party and the wider public

1. Mr Jasper’s application to the Tribunal on 1 May 2018 is approximately 52 days out of time.  If the Tribunal were to hear the application there is unlikely to be any prejudice to the Child Support Agency which would be the other party to the review.

2. Time limits for the review of administrative decisions should be observed as strictly as possible in order to assist the proper administration of government agencies.  There is a public expectation that there be a degree of certainty in relation to time limits, however, the law also allows for extensions of time.  In this case the Tribunal believes there would be some prejudice to the general public if an extension of time was granted.

CONCLUSION

1. Mr Jasper has not provided a satisfactory reason for the delay in his second extension application and the Tribunal has found there is little merit to his argument.  While the Tribunal found there would be no prejudice to the other party it is likely there would be prejudice to the wider public should the second extension application be granted.

2. In such circumstances the Tribunal is satisfied that it is not proper to hear the application for review and will not grant the extension application.