Lawson and Child Support Registrar (Child support)
[2018] AATA 3999
•30 August 2018
Lawson and Child Support Registrar (Child support) [2018] AATA 3999 (30 August 2018)
DIVISION:Social Services & Child Support Division
REVIEW NUMBER: 2018/SC014325
APPLICANT: Mr Lawson
OTHER PARTIES: Child Support Registrar
TRIBUNAL:Member F Hewson
DECISION DATE: 30 August 2018
DECISION:
The tribunal decided to set aside the decision under review and substitute its decision to grant Mr Lawson’s application for an extension of time to object to the decision of 20 September 2017.
CATCHWORDS
Child support - Refusal of an extension of time to object - Reasonable explanation for most of the delay - Objection has merit - Extension of time should be granted - Decision under review set aside and substituted
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
This application for review is about whether Mr Lawson should be given an extension of time to object to the decision made on 20 September 2017 to refuse Mr Lawson’s application for a departure from the administrative assessment of child support.
On 16 April 2018 Mr Lawson lodged a written objection to the decision of 20 September 2017. As this was more than 28 days after he was given notice of the decision, Mr Lawson was also required to apply for an extension of time to lodge the objection.
On 8 June 2018, an officer of the Department of Human Services – Child Support (the Department) refused the application for an extension of time to object (the refusal decision).
On 13 June 2018 Mr Lawson applied to the 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 20 September 2017. The application was heard on 21 August 2018. Mr Lawson 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 Mr Lawson, and to additional documents submitted by Mr Lawson.
ISSUES
The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).
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).
The issues which arise in this case are:
· Whether Mr Lawson 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
The original decision, which is the subject of the Department’s refusal of an extension of time, is the decision of 20 September 2017. A copy of the notice advising Mr Lawson of the decision is contained in the documents provided by the Department. The letter was dated 21 September 2017.
The record shows that Mr Lawson lodged an objection on 16 April 2018, outside the statutory 28 day timeframe.
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.
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.
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.
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 Mr Lawson rested on his rights
As noted above, the decision which was the subject of the refusal of an extension of time to object was the decision of 20 September 2017, which Mr Lawson was notified of by letter dated 21 September 2017. Mr Lawson’s objection lodged on 16 April 2018 is more than five months out of time.
At the hearing Mr Lawson said he spoke to the objections officer after the change of assessment decision was made and said he would lodge an objection. He believed his objection had been lodged through a third party, Child Support Consulting, in November 2017. He spoke to someone in the Department during the Christmas period and the person confirmed that his objection had been received. Mr Lawson said he had a number of matters on foot at the time, including an objection in relation to an extension of the child support assessment past his daughter’s 18th birthday. In relation to a discussion on 10 October 2017, Mr Lawson agreed that the only matter discussed on that occasion was in relation to the extension of the child support assessment. He said he did discuss the change of assessment decision on a later occasion, after he received information about [Ms B]’s taxable income for 2016/17. Mr Lawson said the Department is a “phone first organisation” and its system for communicating online had been disabled. Mr Lawson said this had made it more difficult to get information about the progress of matters he was dealing with and is the reason he didn’t understand until April 2018 that his objection to the change of assessment decision had not been recorded.
The documents provided by the Department include a record of the objections officer’s discussion with Mr Lawson about the outcome of his change of assessment application. During the discussion Mr Lawson advised that he intended to apply to the Administrative Appeals Tribunal for review of the decision. Mr Lawson was subsequently in contact with the Department on 10 and 26 October 2017, but the records of those contacts do not contain any reference to the change of assessment decision. On 17 November 2017 the Department received information from Child Support Consulting in relation to the decision to extend the child support assessment for Mr Lawson’s daughter past her 18th birthday. A record dated 9 February 2018 records that Mr Lawson called to discuss matters, including his change of assessment objection, which he said was sent at the same time as the objection to the decision to extend the child support assessment past his daughter’s 18th birthday.
The Department’s records show that Mr Lawson contacted the Department on 5 February 2018. An objection form was sent to him. It was signed and dated 12 February 2018, but was not received by the Department until 1 March 2018. A further discussion of the matter on 14 February 2018 is contained in the records. It stated, in part, “ Mr Lawson clarified that the discussion and objection was regarding the department’s decision was regarding COA and he never said it was about a care change, I advised that I cannot see an objection was rec from his rep. I advised that I am going to pass this one to the disputed care team”. The Department’s records include details of a contact with Mr Lawson on 3 April 2018 during which he advised that he had lodged an objection via his representative, but has since been advised that it was not received. He advised that he intended to submit the objection with an application for an extension of time. He was advised to do so as soon as possible. The objection was received from Mr Lawson on 16 April 2018.
After the hearing Mr Lawson submitted a copy of an email exchange between him and [Mr A] at Child Support Consulting on 24 November 2017 about the objection which was to be lodged in relation to the change of assessment decision. It contained detailed information about the reasons for the objection and indicated that it was to be submitted by Child Support Consulting. It records that on 24 November 2017 Mr Lawson emailed Child Support Consulting and stated: “[Mr A], objection form signed and attached”.
The tribunal was satisfied, taking into account Mr Lawson’s evidence in relation to his contacts with the Department, and with Child Support Consulting, that Mr Lawson genuinely believed his objection to the change of assessment application was lodged in November 2017. He subsequently raised the issue with the Department on a number of occasions. It is not clear from the records that Mr Lawson was aware before April 2018 that the Department did not have a record of receiving the objection. The tribunal was satisfied that there was a reasonable explanation for most of the delay in this case but notes that, even had the objection been received in November 2017, it would have been several weeks late. It seems that it was receipt of information in November 2017 about [Ms B]’s 2016/17 income that prompted Mr Lawson to pursue an objection to the change of assessment decision.
Merit of the objection
The tribunal did not conduct a substantive review of the decision to refuse Mr Lawson’s application for a change of assessment.
Mr Lawson said he disagrees with the decision because he did not consider that [Ms B]’s income, earning capacity and financial resources were properly investigated. She is involved in a business and the objections officer did not obtain bank records and other information which would have revealed the true situation. He said [Ms B] was assessed on an income of $70,000 for 2016/17, but her income was later assessed by the Australian Taxation Office (ATO) to be $117,000. In his objection Mr Lawson also indicated that he disagreed with the objections officer’s conclusions about [Ms B]’s employment status, the reason she ceased employment and her earning capacity.
The documents provided by the Department show that an earlier change of assessment decision set [Ms B]’s adjusted taxable income at $75,000 from 13 January 2016 to 30 April 2017. Mr Lawson was seeking a change in the administrative assessment of child support from 30 April 2017 to 30 June 2018, on the basis of [Ms B]’s true financial position. The original decision maker recorded that at 21 June 2017 [Ms B]’s year to date income from employment was $59,955, including eligible termination payments; she was the sole director and shareholder of her partner’s company, she may have derived a financial benefit from the operation of the business, particularly in relation to rent, she also received income from dividends and she expected to earn about $50,000 in the 2017/18 financial year.
[Ms B]’s response to the application to change the assessment, dated 24 June 2017, states that her final payslip (which showed the year to date amount of $59,955) shows only part of her salary for the year, due to a change in the payroll system. She estimated that her year to date earnings for 2016/17 were $94,300. The documents show that [Ms B]’s 2016/17 income was subsequently assessed by the ATO to be $117,630 and she elected to estimate her income for 2017/18, in the amount of $20,643 from 4 November 2017. In relation to the termination of [Ms B]’s employment, the decision maker noted that although there was evidence that the reason for termination was “resignation”, he accepted [Ms B]’s evidence that she was made redundant, noted that if she had not been made redundant she would not have been paid eligible termination payments.
The tribunal concluded that another decision maker could make a decision more favourable to Mr Lawson, particularly as the original decision maker appears to have come to a conclusion about the application based on a 2016/17 year to date salary for [Ms B] of $59,955, whereas she estimated that it was an amount of $94,300. The tribunal was satisfied that there is merit in Mr Lawson’s objection.
Prejudice to others
25.The tribunal also considered whether there would be prejudice to [Ms B] should the extension of time be granted. It was satisfied that [Ms B] would be prejudiced because the outcome of the decision was presumed determined once the 28 days for lodging an objection had passed, and a decision in Mr Lawson’s favour could result in [Ms B]’s child support liability for periods when she was the payer being increased. In relation to periods when Mr Lawson is assessed as the payer, [Ms B] will not be exposed to an overpayment of child support because any decrease in his liability would be absorbed by the large amount of the arrears owed by him.
26.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 Mr Lawson’s objection to be determined. The tribunal concluded that there would be no significant prejudice to the general public if the application was granted.
Conclusion
27.The tribunal carefully weighed the various factors it had to consider. It concluded that the explanation for the delay in this case is reasonable and there is merit in the objection. Taking these, and the other factors it had to consider, into account, the tribunal concluded that it is appropriate in the circumstances of the case to grant the extension application for Mr Lawson to object to the decision of 20 September 2017.
DECISION
The tribunal decided to set aside the decision under review and substitute its decision to grant Mr Lawson’s application for an extension of time to object to the decision of 20 September 2017.
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