Lockwood and Child Support Registrar (Child support)

[2019] AATA 4889

Lockwood and Child Support Registrar (Child support) [2019] AATA 4889 (19 September 2019)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2019/AC016875

APPLICANT:  Ms Lockwood

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                19 September 2019

APPLICATION:

An extension application made on 4 July 2019 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 4 June 2019 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

CHILD SUPPORT – application for extension of time – no satisfactory explanation for the delay – little merit – extension of time refused

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.

STATEMENT OF REASONS

1. On 4 July 2019 Ms Lockwood lodged an application with the Administrative Appeals Tribunal (the Tribunal) for an extension of time for review of a child support decision made on 4 June 2019.  The matter was considered on 19 September 2019 on the papers (consistent with the Tribunal’s ‘Child Support Review Directions’).  The Tribunal had before it a bundle of documents provided by the Department of Human Services, Child Support (the Child Support Agency).

2. Ms Lockwood and [Mr A] are the parents of [Child 1] (born November 2001) and [Mr A] is the parent liable to pay child support under the assessment.

3. On 19 November 2018 Ms Lockwood applied for a change to the administrative assessment and on 7 March 2019 the Child Support Agency made the decision to change the assessment so that for the period from 19 November 2018 until there is a terminating event for [Child 1] the adjusted taxable income for [Mr A] is set at $100,000 (the original decision).  This was done to reflect the income, property and financial resources of [Mr A] (the ground commonly known as Reason 8A).

4. On 9 April 2019 Ms Lockwood objected to this decision and on 4 June 2019 the Child Support Agency disallowed the objection (the objection decision).

5. The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (the Act) and the Child Support(Assessment) Act 1989 (the Assessment Act).

6. The issue which arises in this case is whether or not to grant Ms Lockwood’s request for an extension of time to submit an application for review of a child support decision.

7. 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.

8. Subsection 29(2) of the Administrative Appeals Tribunal Act 1975 establishes that an application for review must be made within 28 days of being served with notice of the decision.

9. 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. The Tribunal finds Ms Lockwood was advised about the outcome of the objection decision by electronic means in a letter from the Child Support Agency dated 5 June 2019. In her application to the Tribunal Ms Lockwood said she received the objection decision on 5 June 2019. Given Ms Lockwood lodged her application more than 28 days after she was served with written notice of the decision, the Tribunal is satisfied that an extension of time was required.

10. 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 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.

11. 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 Ms Lockwood’s application for an extension of time on 4 July 2019 in relation to the objection decision made on 4 June 2019, of which she was notified by electronic means on 5 June 2019, is one day out of time.

2. In seeking an extension of time, Ms Lockwood states as the reasons for the delay that she completed her application and submitted it to the Tribunal on 4 July 2019 which she thought was within the required timeframe.  Ms Lockwood also states that she had been waiting for [Mr A] to pay the agreed amount of child support and because he had not she was now having to complete the application for review by the Tribunal.

3. The 28-day period within which an application for review must be made is calculated starting on the day on which the relevant notice of decision is “given to” or “served on” the person by the Child Support Agency.  In this case the Tribunal is satisfied that Ms Lockwood was taken to be served with written notice of the objection decision on 5 June 2019.  The 28^th day of the period for making an application for review was 3 July 2019.  To have been within the prescribed period Ms Lockwood’s application should have been made no later than 3 July 2019 and was, therefore, one day late.

4. The notification of the objection decision provided by the Child Support Agency dated 5 June 2019 outlines what to do if Ms Lockwood disagreed with the decision.  This includes asking the Tribunal to undertake a review “within 28 days from the date you receive this letter”.  The words “within 28 days” are in bold which, in the view of the Tribunal, gives a clear indication of the importance of this timeframe.

5. The Tribunal also notes that during a conversation with the objections officer on 18 April 2019 Ms Lockwood was advised of her appeal rights to the Tribunal.

6. The Tribunal is satisfied Ms Lockwood was aware of her appeal rights.  Ms Lockwood submits that her request for review of the objection decision was not out of time.  Although her request was only one day late, the Tribunal is not satisfied Ms Lockwood has provided a reasonable explanation for the short delay in applying for a review.

Merits of the application

1. Ms Lockwood is seeking review of an objection decision which affirmed the original decision made on 7 March 2019 to increase [Mr A]’s adjusted taxable income for the purposes of child support.  This was done on the basis of [Mr A]’s income, property and financial resources as he had commenced casual employment on 4 October 2018.  The original decision maker determined that the change of assessment should be made from 19 November 2018 – the date Ms Lockwood made her application – and not earlier.  The objections officer also found no reason to backdate the change of assessment decision.

2. In her written objection to the original decision Ms Lockwood requested that the change be made to the assessment from 4 October 2018 being the date [Mr A] commenced employment.  This is also the basis of her application to the Tribunal.

3. The Assessment Act sets out that a departure determination may not be made in respect of a day in a child support period that is more than 18 months earlier than the date on which the change of assessment application was made (subsection 98S(3B)). Before the Child Support Agency (or the Tribunal) makes a retrospective determination, however, the courts have held that it is necessary to consider whether or not it would be just and equitable to make such a determination in respect of the past period. Regard must also be had to the overall impact of the proposed retrospective departure determination on the child support liability or entitlement of the parents.

4. In relation to retrospective determinations the Child Support Guide states at 2.6.17:

   When considering whether to backdate a change of assessment decision, the Registrar will consider the circumstances of the parties involved. These include, but are not limited to:

   ·the payer's capacity to pay any arrears in addition to their ongoing assessment, or

   ·the payee's capacity to repay any overpaid child support.

   The Registrar will also consider the circumstances that led to the application, for example:

   ·whether the application arose from a parent's misstatement of his or her income, or

   ·whether the parent unduly delayed making his or her application for a change of assessment.

5. The Tribunal notes that in making the decision to commence the change of assessment from 19 November 2018 the Child Support Agency considered several factors.  Ms Lockwood was advised of the option to lodge a change of assessment application on 9 November 2018 but her completed application was received on 19 November 2018.  Furthermore [Mr A] contacted the Child Support Agency to advise that his employment circumstances had changed but was informed there was no administrative option available for him to update the assessment.  The Child Support Agency concluded that it would not be reasonable to backdate an increase to the assessment prior to the date of receipt of Ms Lockwood’s change of assessment application form.

6. The Tribunal is satisfied the Child Support Agency properly considered all relevant matters before deciding upon the date from which the change of assessment determination should be made.

7. The test of merit has alternatively been expressed as whether, were it to proceed, the application for review “would have good prospects of success” (Smith and Commissioner of Patents [2012] AATA 60 at [29]–[31]).

8. Based on the evidence available, the Tribunal finds Ms Lockwood’s application for review would not have good prospects of success in relation to the backdating of the change of assessment determination.  The Tribunal considers that, on balance, Ms Lockwood’s application has little merit.

Potential prejudice to [Mr A] and the wider public

1. [Mr A] should ordinarily be able to rely on the child support assessment once the time for objection has passed.  On the other hand the application made by Ms Lockwood to the Tribunal is only one day late.  The Tribunal does not consider that [Mr A] would be significantly disadvantaged if an extension of time to lodge an objection was granted.

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 also a public expectation that there be a degree of certainty in relation to time limits, however, the law allows for extensions of time.  In this case the Tribunal does not believe there would be prejudice to the general public if an extension of time to lodge an objection was granted.

Fairness in granting an extension of time as between Ms Lockwood and other persons in similar positions

1. The Child Support Agency notifies parties that they can seek a review of decisions with the Tribunal and they have 28 days within which to submit a request for such a review.  Most people comply within the 28-day timeframe.  It is clear the statutory time limit is to be enforced unless there are acceptable reasons for the delay.  The Tribunal finds that it would not be fair to others to grant Ms Lockwood an extension of time to seek review of a decision in view of the statutory timeframe which applies and the lack of merit to her application.

CONCLUSION

1. The Tribunal is of the view Ms Lockwood has not provided a reasonable explanation for the short delay in applying for review of the objection decision.  The Tribunal could also find little merit to her application based on the evidence available.  This weighs heavily against the granting of the extension application.

2. Having carefully considered the various factors which it needs to take into account, the Tribunal finds it would not be proper to grant an extension of time to seek review of the objection decision made on 4 June 2019 in the circumstances of this case.  Accordingly, the extension application is refused.