Lander and Child Support Registrar (Child support)

[2018] AATA 1706

Lander and Child Support Registrar (Child support) [2018] AATA 1706 (1 May 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/MC013695

APPLICANT:  Miss Lander

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member F Hewson

DECISION DATE:  1 May 2018

DECISION:

The tribunal decided to affirm the decision under review.

CATCHWORDS

Child support – Refusal to grant extensions of time to object – Departure determination – Reasons for delay not reasonable – Merit is weak – 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. This application for review is about whether Miss Lander can be given an extension of time to object to the departure decision made on 21 December 2017 to set [Mr A’s] adjusted taxable income at $88,000 and Miss Lander’s at $93,000 for the period from 1 September 2017 to 31 October 2018.

2. On 12 February 2018 Miss Lander lodged a written objection to the decision of21 December 2017. As this was more than 28 days after she was given notice of the decision, Miss Lander was also required to apply for an extension of time to lodge the objection.

3. On 26 February 2018, an officer of the Department refused the application for an extension of time to object (the refusal decision).

4. On 14 March 2018 Miss Lander applied to Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) for review of the decision to refuse the application for an extension of time to object to the decision of 21 December 2017. The application was heard on 1 May 2018. Miss Lander spoke to the tribunal by conference telephone. The tribunal also had regard to documents provided by the Department, a copy of which was also provided to Miss Lander.

ISSUES

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

2. Apart from persons residing in particular foreign countries, objections must be lodged within 28 days from the day on which notice of the decision is given (section 81). An application outside that time can only proceed if the objector also applies for an extension of time in which to object and that application is granted (section 83). 

3. The issues which arise in this case are:

   ·     Whether Miss Lander lodged an objection within the statutory timeframe; and, if not

   ·     Whether, in the particular circumstances of the case, it is appropriate to extend the time for lodging an objection.

CONSIDERATION

1. The original decision, which is the subject of the Department’s refusal of an extension of time, is the decision of 21 December 2017. A copy of the notice advising Miss Lander of the decision is contained in the documents provided by the Department. The letter was correctly addressed.

2. The record shows that Miss Lander lodged an objection on 12 February 2018, outside the statutory 28 day timeframe.

3. In considering whether to exercise the discretion to extend the time for making an application for internal review, the tribunal had regard to the guiding principles set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. 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.

4. In Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42 O’Connor J outlined some principles to be applied in considering an application for an extension of time.

   The principles to be applied in considering an application for extension of time are:

   (i)   prima facie proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so;

   (ii)     it is relevant whether the applicant rested on his [or her] rights or took action to make the decision maker aware that the decision was being contested;

   (iii)    any prejudice to the respondent that would be caused by granting the extension of time is relevant;

   (iv)    any wider prejudice to the general public in terms of disruption to established practice is relevant;

   (v)     the merits of the substantial application are relevant; and

   (vi)    fairness of granting an extension of time as between the applicant and other persons in like position is relevant.

5. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, the High Court in dealing with an extension of time 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 a particular case, may indicate that justice is served by the general rule being overturned.

6. In Comcare v A’Hearn (1993) 119 ALR 85, the Full Federal Court noted that there is no requirement that there must be an acceptable reason for delay:

   We note that the Tribunal used language that might be taken to suggest that it is a precondition for success in such an application that an acceptable explanation for the delay must be given. Although it is to be expected that such an explanation will normally be given, as a relevant matter to be considered, there is no rule that such an explanation is an essential precondition …

Reason for the delay and whether Miss Lander rested on her rights

1. As noted above, the decision which was subject of the refusal of an extension of time to object was the decision of 21 December 2017, which varied the adjusted taxable income for Miss Lander and [Mr A] for the period from 1 September 2017 to 31 October 2018. Miss Lander’s objection lodged on 12 February 2018 is less than a month out of time.

2. At the hearing Miss Lander said she was initially relieved because the decision meant that she was no longer assessed to be the paying parent. She said she subsequently became aware that [Mr A] had won a trip from his employer on the basis of his performance, which caused her to suspect that the income of $88,000 is an under-assessment of his income. She noted that he also purchased a new car in 2017. Miss Lander said information in relation to [Mr A’s] sales on also indicate that [Mr A] is doing well. Miss Lander said she regards $88,000 as a low income for a high performing real estate agent. Miss Lander said she obtained legal advice and was advised to object to the decision.

3. The Department’s records show that Miss Lander discussed the outcome of the change of assessment application with the decision-maker on 20 December 2017. At that time she was advised of her right to object to the decision. It was Miss Lander’s evidence that she was not immediately unhappy with the decision. It was only when she became aware that [Mr A] had won a trip due to his performance that she became dissatisfied with the outcome. The tribunal concluded that there is no reasonable explanation for the delay, and Miss Lander did rest on her rights.

Merit of the objection

1. The tribunal did not conduct a substantive review of the decision, which relates to determination to depart from the child support administrative assessment under Part 6A of the Child Support (Assessment) Act 1989 (Assessment Act) (section 98B). Section 98C provides that the Registrar may make a determination to depart from the formula assessment and establishes a three-step process. The Registrar, and the tribunal standing in place of the Registrar, must be satisfied there is a ground for a departure from the administrative assessment, that it is just and equitable to do so and that it is otherwise proper.

2. On 21 December 2017, the decision was made to depart from the administrative assessment of child support and the adjusted taxable income for Miss Lander and [Mr A] for the period from 1 September 2017 to 31 October 2018 was varied to $93,000 and $88,000 respectively.

3. The income used for [Mr A] in the child support assessment prior to the departure decision was his 2016/17 adjusted taxable income of $61,657. The departure decision was made on the basis of [Mr A’s] year to date earnings, shown on his payslip, which equated to an income of about $90,000. This amount was adjusted to $88,000 allowing for reasonable deductions.

4. The evidence shows that [Mr A] is a real estate agent and his income comprises a retainer and commission for sales. It is the nature of [Mr A’s] employment that his income will fluctuate. His year to date earnings were the best evidence of what his income for the financial year was likely to be. Miss Lander has pointed to evidence that [Mr A] is performing well in his position, but has not presented any new evidence that the current income used in the child support assessment is significantly less than [Mr A] is likely to earn in the financial year. The tribunal concluded that the merit in Miss Lander’s objection is weak.

Prejudice to others

21.The tribunal also considered whether there would be prejudice to [Mr A] should the extension of time be granted. It was satisfied that [Mr A] would be prejudiced because the outcome of the change of assessment application was presumed determined once the 28 days for lodging an objection had passed. Given the relatively short period of the delay, however, the tribunal concluded that any prejudice would be minimal.

22.In the context of determining whether there was any prejudice, the tribunal also considered whether there would be prejudice to the general public and whether it is in the public interest for the issues raised by Miss Lander in her objection to be determined. The issues raised by Miss Lander do not involve the interpretation of issues that are of wider public interest. The tribunal concluded that there would be prejudice to the general public if the application was granted.

Conclusion

23.The tribunal carefully weighed the various factors it had to consider. It concluded that there was no reasonable explanation for the delay in this case and Miss Lander did rest on her rights. The tribunal was of the view that there would be some prejudice to other parties and to the general public in granting an extension of time. Taking these factors and the lack of compelling merit into account, the tribunal concluded that it is not appropriate in the overall circumstances of the case to grant the extension application for Miss Lander to object to the decision of 21 December 2017.

DECISION

The tribunal decided to affirm the decision under review.