Luckinbill and Child Support Registrar (Child support)

[2021] AATA 4787

Luckinbill and Child Support Registrar (Child support) [2021] AATA 4787 (1 November 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/BC021909 & 2021/BC021940

APPLICANT:  Mr Luckinbill

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member J Thomson

DECISION DATE:  1 November 2021

DECISION:

The decisions under review are affirmed.

CATCHWORDS

CHILD SUPPORT – applications for extension of time to object – no satisfactory explanation for the lengthy delay – little merit – prejudice to the other parent due to delay – extensions of time refused – decisions under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted 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 Luckinbill seeks review of two objection decisions made by the Child Support Agency (the Agency) on 21 June 2021. These decisions refused his applications for an extension of time to object to earlier decisions made by the Agency dated 29 October 2013 (the October 2013 decision) and 24 January 2015 (the January 2015 decision).

2. The October 2013 decision changed his child support assessment for the period 1 December 2013 to 28 February 2015, applying his 2012/13 provisional income of $77,330 in the assessment for that period. The January 2015 decision changed his child support assessment for the period 1 March 2015 to 27 December 2015, applying his 2013/14 provisional income of $79,846 in the assessment for that period.

3. The Tribunal heard the matter on 10 September 2021. Mr Luckinbill attended the hearing via conference telephone and gave affirmed evidence. The Tribunal had before it copies of documents provided by the Agency (Exhibit 1). Mr Luckinbill had copies of these documents with him at the hearing on 10 September 2021.

4. The Tribunal requested additional information and documents from the Agency pursuant to subsection 37(2) of the Child Support (Assessment) Act1989 (the Assessment Act) and directed Mr Luckinbill to provide additional documentation in support of his submissions regarding his review application. The additional documents and information provided by the Agency have been added to Exhibit 1 and the documents provided by Mr Luckinbill in response to the Tribunal’s directions have been admitted into evidence and marked Exhibit A.

5. Copies of the additional documents and information provided by the Agency have been provided to Mr Luckinbill for his consideration and comment. The Tribunal has offered Mr Luckinbill the opportunity to provide further affirmed evidence regarding the additional documents and information provided to it by the Agency and Mr Luckinbill at a hearing on 5 November 2021 but he has failed to respond.

CONSIDERATION

1. In reaching its decision, the Tribunal has considered the affirmed evidence given by Mr Luckinbill at the hearings on 10 September 2021 and the documents contained in Exhibits 1 and A.

2. The issue before the Tribunal concerns the application of provisional incomes for Mr Luckinbill of $77,330 for the period 1 December 2013 to 28 February 2015 and $79,846 for the period 1 March 2015 to 27 December 2015 in the assessments for those periods.

3. The Legislation relevant to this application is contained in the Child Support (Registration and Collection) Act 1988 (the Registration Act) and the Assessment Act. The relevant provisions are summarised below.

4. The Agency sent Mr Luckinbill’s letters dated 29 October 2013 and 24 January 2015 notifying him of its October 2013 and January 2015 decisions referred to above. Both letters were addressed to his postal address last known to the Agency at [Address 1]. Regulation 11A of the Child Support (Assessment) Regulations 1989 provides that, unless the contrary is proved, service will be taken to have been affected at the time when the notice would, in the ordinary course of the post have arrived at the place to which it was addressed. If Mr Luckinbill was receiving his correspondence from the Agency by post he would therefore be taken to have been served with notice of these decisions, in the case of the 29 October 2013 decision, by the early to mid-November 2013, and in the case of the 24 January 2015 decision, by early to mid-February 2015, and needed to have lodged his objection to the decision of 29 October 2013 by early to mid-December 2013, and in the case of the decision of 24 January 2015, by early to mid-March 2015, which he did not.

5. His evidence at the hearings on 10 September 2021 was that he did not receive the Agency’s letters of 29 October 2013 and 24 January 2015 because he had left the [Address 1] prior to 29 October 2013 and was residing at an address in the adjoining Brisbane suburb of [Suburb 1]. There was no evidence before the Tribunal that he notified the Agency of his change of address until in or about August 2015 when he commenced receiving his Agency communications online via his myGov online account.

6. However, the evidence from the Agency shows that Mr Luckinbill received his letters online prior to August 2015, and from at least 29 October 2013 (although possibly earlier, as the evidence provided by the Agency only shows the online letters from that date). To determine when a notice is served on a person by electronic communication, section 14A of the Electronic Transactions Act 1999 applies. This provides that if a person has “designated” an electronic address (such as by arranging access to letters online), the notice served by electronic communication is received by the person when it “reaches” that electronic address. The date determined to be the date of receipt by post or electronic communication of the notice is the first day of the prescribed period for lodging an objection.

7. Regardless of the method of service, Mr Luckinbill was out of time to lodge an objection. Section 82 of the Registration Act relevantly provides that a person may apply for an extension of time in which to launch an objection. The Registration Act does not set out criteria for consideration, but Agency policy contained in the Child Support Guide provides useful guidelines for chapter 4.1.5. In summary, the Child Support Guide suggests 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.

8. 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 and 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…

9. 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 headings:

   ·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…or of established practices”.

Explanation for the delay

1. As noted above, Mr Luckinbill gave evidence that he had changed his postal address in early October 2013, but there was no evidence before the Tribunal to suggest that he notified the Agency of his new [Suburb 1], Brisbane address until in or about August 2015. The additional information and documents he submitted in response to the Tribunal’s directions at hearing suggest that by this time, he had been in contact with the Agency regarding his Child Support arrangements and had arranged to update his current address, and had lodged his outstanding income tax returns for the 2013/14 and 2014/15 financial years. He provided the Tribunal with copies of his Australian Taxation Office (ATO) income tax Notice of Assessment for the financial year ended 30 June 2014 issued on 29 July 2015 reflecting his taxable income of $0.00 for that financial year.

2. He also provided a copy of his ATO Notice of Assessment for his income for the financial year ended 30 June 2015, issued on 30 July 2015 reflecting his taxable income for that financial year of $6,371.

3. Subsection 58(3) of the Assessment Act provides that if the Registrar has information for the previous year’s income the Registrar may use that information to determine an income to be used in the assessment. The evidence suggests Mr Luckinbill did not lodge his 2013/14 or his 2014/15 income tax returns until July 2015.

4. The Agency’s letter of 29 October 2013 advised Mr Luckinbill of its decision to apply his 2012/13 deemed provisional income of $77,330 for the purposes of his child support assessment for the period 1 December 2013 to 28 February 2015.

5. The Agency’s letter of 24 January 2015 notified Mr Luckinbill that as it had not received his 2013/14 adjusted taxable income it had calculated a new assessment of $79,846 for the period 1 March 2015 to 27 December 2015 based on his 2013/14 deemed provisional income of $77,330.

6. The Tribunal finds the Registrar was entitled to determine Mr Luckinbill’s adjusted taxable incomes of $77,330 and $79,846 by multiplying his adjusted taxable income for the 2012/13 financial year by the adjusted taxable income indexation factor in accordance with the provisions of subsection 58(3) of the Assessment Act referred to above.

7. Mr Luckinbill has failed to provide a satisfactory explanation for his failure to lodge his 2013/14 income tax return in a timely manner or a satisfactory explanation for his failure to lodge his objection to the Agency’s decisions to determine his adjusted taxable incomes of $77,330 and $79,846 notified to him in its letters of 29 October 2013 and 24 January 2015 within the statutory period of 28 days of his deemed receipt of those letters.

8. The Tribunal finds Mr Luckinbill has rested on his rights in failing to lodge his income tax return for the 2013/14 financial year in a timely manner and in lodging his objection to the Agency’s decisions of October 2013 and January 2015.

Merits of the objection

1. The Tribunal is not satisfied Mr Luckinbill has an arguable case for review of the Agency’s decisions of October 2013 or January 2015 regarding the determination of his incomes of $77,330 and $79,846.

Prejudice to [Ms A]

1. [Ms A] is entitled to rely on the decisions made by the Agency on 29 October 2013 and 24 January 2015 and expect certainty and finality. The Tribunal considers that to allow Mr Luckinbill to object to those decisions would seriously prejudice [Ms A]’s capacity to respond to any further proceedings. The very lengthy delay in lodging his objection to those decisions and the resulting prejudice to [Ms A] mean that the interests of justice would not be served by the granting of an extension of time to object in this case.

Public interest considerations

1. Parliament has seen fit to set a 28-day time limit for the lodgement of objections so parents (and the Agency) 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 Agency being performed in a timely fashion and in a manner that ensures all applicants are treated fairly and equally. Accordingly, an extension of time for objection is not to be automatically granted.

2. The Tribunal has found Mr Luckinbill does not have a reasonable explanation for the delay in applying to the AAT for review of the Agency’s decisions of 29 October 2013 and 24 January 2015 nor is it satisfied that he has an arguable case on appeal. The Tribunal is also satisfied that granting an extension of time to object to those decisions would seriously prejudice [Ms A]’s capacity to respond to his objections and would not be in the best interests of justice. The applications for extension of time are therefore refused.

3. As the Tribunal has reached the same conclusion as the objections officer in the decisions under review, both decisions are affirmed.

DECISION

The decisions under review are affirmed.