Jebson and Child Support Registrar (Child Support)

[2018] AATA 4162

Jebson and Child Support Registrar (Child Support) [2018] AATA 4162 (25 September 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/MC014662

APPLICANT:  Mr Jebson

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member S Letch

DECISION DATE:  25 September 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS
CHILD SUPPORT – refusal of an extension of time to object – no reasonable explanation for the delay – objection not devoid of merit – extension of time to object should not be granted – 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 Jebson and [Ms A] are the parents of [Child 1] and [Child 2] for whom Mr Jebson has been assessed by the Child Support Agency (“the CSA”) to pay child support.

2. On [Ms A’s] application for a change of assessment, the CSA decided on 1 March 2018 to vary Mr Jebson’s adjusted taxable income to $122,582 for the period 1 December 2017 to 28 February 2020.

3. On 25 May 2018 — notably, well outside the 28 days after the original decision was posted to him on 7 March 2018 — Mr Jebson made an objection.

4. On 23 June 2018, an officer of the CSA refused Mr Jebson’s request for an extension of time in which to object to the decision of 1 March 2018.

5. Mr Jebson applied to the Tribunal for review of the decision to refuse his extension of time application. The Tribunal conducted a hearing on 21 September 2018 in which Mr Jebson participated by conference telephone.

CONSIDERATION

Background and legislative framework

1. The legislation relevant to this application is contained in the Child Support (Registration and Collection) Act 1988 (the Registration Act). The relevant provisions are summarised below. With the aim of promoting consistency in decision making, the Tribunal has also had regard to the Child Support Guide (the Guide), the CSA’s online policy and legislation resource.

2. A parent may object to a decision made by the CSA pursuant to section 80 of the Registration Act (including a decision about a particular of the assessment, such as a parent’s income). 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.

3. The decision to which Mr Jebson wished to object was made on 1 March 2018 and notified to Mr Jebson by letter dated 7 March 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. The Tribunal is satisfied that Mr Jebson’s objection was made more than 28 days after he received the decision letter.

4. 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.

5. The Registration Act does not set out criteria for consideration when determining an application for an extension of time within which to object. However, 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.

6. 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 ...

7. When the application is for an extension of time … it is always necessary to consider the prospects of the applicant succeeding in the appeal …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] FCA 153; (1982) 43 ALR 535 at p 550) or of ‘established practices’ (Douglas v Allen (Morling J, 3 April 1984, unreported, p 19)).

Explanation for the delay

1. The CSA materials record the CSA had discussed with [Ms A] the application made by Mr Jebson for an extension of time. The CSA records [Ms A] had indicated Mr Jebson habitually did not read his mail.

2. Mr Jebson told the Tribunal that the letter sent by CSA in March was not received by him until May – he speculated it may have been lost somewhere by Australia Post during delivery. He said he had not had any problems with mail in the past. Mr Jebson said he only rarely accessed his online CSA record. He said he called the CSA ‘within a couple of days’ of receiving the letter.

3. Mr Jebson said he has now returned to being a wage and salary earner. His first employer quickly ‘went bust’; he has recently started with a new employer making [products]. The CSA had suggested he could lodge a fresh application for a change of assessment; however, he was given contradictory information about delaying any such application until the matter before the Tribunal was resolved.

4. Mr Jebson did not identify any prior problems with his mail. On balance, the Tribunal considered it more likely than not that Mr Jebson received the decision letter of 7 March 2018 within the usual delivery time for mail to his address in [his home town] (located around [distance] from the [closest] CBD). A separate assessment notice was also generated on 7 March 2018. The Tribunal accepted Mr Jebson may not have opened the correspondence until late May 2018.

5. In the Tribunal’s assessment, Mr Jebson does not have a reasonable explanation for the delay. This is a very weighty factor; in the absence of a reasonable explanation for delay, an extension of time will not usually be granted. 

Merits of the objection

1. Departure determinations, by their very nature, involve the exercise of a broad discretion in not only setting an appropriate level of income, but the period for which a departure should be made, for example.

2. Mr Jebson disagrees with what he says is a figure ‘plucked out of the air’ by the CSA. His business made a loss. Ultimately, the Tribunal did not conclude an objection, if permitted to proceed, would be likely to be devoid of merit.

Potential prejudice

1. [Ms A] has been entitled to rely on the assessment in place since the earlier decision was made. The Tribunal must weigh any potential prejudice to [Ms A] arising from the desirability of the certainty of the CSA’s decision against the other factors relevant to the application for an extension.

Public interest considerations

1. The statute provides for a 28-day time limit 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 is not to be automatically granted. All of the factors must be carefully weighed.

Conclusion

1. The Tribunal has considered all of the factors relevant to whether it is in the interests of justice that Mr Jebson be granted an extension of time so that his objection may proceed.

2. The absence of a reasonable explanation for the delay weighs very heavily against granting an extension of time. The Tribunal is also concerned about the potential prejudice to [Ms A], who has been entitled to rely on the decision.

3. In weighing up all the relevant factors, the Tribunal finds that the interests of finality should prevail, and that granting an extension of time in which to object is not in the interests of justice in this case.

4. The Tribunal observes that Mr Jebson retains rights in respect of any subsequent decisions made by the CSA. It is open to him to make an application for a change of assessment at any time to respond to his more recent changes in circumstances.

5. As the Tribunal has reached the same conclusion as the CSA, the decision will be affirmed.

DECISION

The decision under review is affirmed.