Kitt and Child Support Registrar (Child support)

[2018] AATA 3489

Kitt and Child Support Registrar (Child support) [2018] AATA 3489 (11 June 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/BC013779

APPLICANT:  Mrs Kitt

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member S Letch

DECISION DATE:  11 June 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS
Child support - Refusal of an extension of time to objection to a departure determination - Whether the extension of time should be granted - No compelling explanation for the delay - Unlikely to succeed with the objection - 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. Mrs Kitt and Mr Kitt are the parents of two eligible children for whom Mr Kitt has been assessed by the Child Support Agency (the CSA) to pay child support.

2. Mrs Kitt made an application for a change of assessment on 24 November 2017. For the period 1 October 2017 to 31 December 2018, Mr Kitt had been assessed to pay an annual rate of child support of $2,780 based on his adjusted taxable income for 2016/17 of $17,522 and Mrs Kitt’s adjusted taxable income of $22,149. Mrs Kitt, in simple terms, suggested Mr Kitt had undisclosed financial resources, and a much higher capacity to earn income.

3. On 6 January 2018, the CSA advised Mrs Kitt by letter that it had decided no ground to depart from the formula assessment had been established, and made no change to the assessment.

4. On 2 March 2018 – notably, more than 28 days after Mrs Kitt was notified of the decision – Mrs Kitt made an objection.

5. On 16 March 2018, an officer of the CSA refused Mrs Kitt’s request for an extension of time in which to object, citing a lack of a reasonable explanation for the delay, a lack of merit, and potential prejudice to Mr Kitt.

6. On 29 March 2018, Mrs Kitt applied to the Tribunal for review of the decision to refuse her extension of time application.

7. The Tribunal conducted a hearing on 11 June 2018. Mrs Kitt participated by conference telephone, assisted by an interpreter in the Hindi language.

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 Mrs Kitt wished to object was made on 6 January 2018 and notified to Mrs Kitt by letter of the same date. 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 Mrs Kitt’s objection was made more than 28 days after receipt of the letter dated 6 January 2018.

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 Child Support 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 ...

   When the application is for an extension of time …it is always necessary to consider the prospects of the applicant succeeding in the appeal …

7. 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. Mrs Kitt advised the CSA that she had travelled overseas in January 2018 and returned to Australia on 4 February 2018. She told the Tribunal she had travelled to see her uncle, who was very sick. She was preoccupied with family matters, and did not turn her attention to making her objection until 2 March 2018. The objection decision records Mrs Kitt had indicated she “forgot” to make her objection upon her return to Australia.

2. In the Tribunal’s assessment, Mrs Kitt does not have a compelling explanation for the delay. However, the Tribunal observes the delay is not particularly excessive in this case.  

Merits of the objection

1. The decision of the CSA refusing the extension relies heavily on the conclusion that Mrs Kitt’s objection would have no merit were it to proceed.

2. Mrs Kitt alleges that Mr Kitt has acted in a deceitful way in order to conceal his true financial position. She suggests his overseas travel, and purchase of a large house in Fiji, amongst other things, demonstrate he has a greater financial capacity than is revealed in his taxable income.  He also has an unrealised earning capacity.

3. The Tribunal – like the CSA – cannot base an assessment on supposition or unsubstantiated allegations. The Tribunal acknowledged Mrs Kitt’s submission that she is carrying a heavy burden supporting her children. However, on the evidence available to it, it appears to the Tribunal the CSA’s assessment of Mr Kitt’s financial capacity is entirely reasonable.

4. The Tribunal considers an objection, if permitted to proceed, would be unlikely to yield the result sought by Mrs Kitt.

Potential prejudice

1. Mr Kitt has been entitled to rely on the assessment in place since the earlier decision was made. The Tribunal must weigh any potential prejudice to Mr Kitt 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 Mrs Kitt be granted an extension of time so that her objection may proceed.

2. In the absence of an acceptable explanation for what is acknowledged was a relatively short delay, in addition to (and perhaps more importantly) what the Tribunal considers to be the unlikely prospect for an application by Mrs Kitt to succeed, the Tribunal finds that granting an extension of time in which to object is not in the interests of justice.

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

DECISION

The decision under review is affirmed.