Meriwether and Child Support Registrar (Child support)

[2022] AATA 740

Meriwether and Child Support Registrar (Child support) [2022] AATA 740 (21 March 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC022467

APPLICANT:  Mr Meriwether

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member J Thomson

DECISION DATE:  21 March 2022

DECISION:

The Tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – refusal to grant an extension of time to object - no satisfactory explanation for the delay – no merit - weighing all factors the extension of time was correctly refused - decision 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 Meriwether and [Mrs A] are the parents of [Child 1], born 2001, [Child 2], born 2003, and [Child 3], born 2004.

2. Mr Meriwether seeks review of an objection decision made by the Child Support Agency (the Agency) on 30 July 2021. This decision refused his request for an extension of time to lodge his objection to an earlier Agency decision dated 24 October 2019 to reconcile his 2018/19 estimate of income at $90,643.

3. The Tribunal heard the matter on 2 February 2022. Mr Meriwether attended the hearing via conference telephone and gave affirmed evidence. The Tribunal had before it copies of documentation provided by the Agency (admitted into evidence and marked Exhibit 1). Mr Meriwether did not have copies of these papers with him at the hearing, but was content for the hearing to proceed, notwithstanding this.

ISSUES

1. The issue which arises in this case is reflected in the Reasons set out below.

CONSIDERATION

1. In reaching its decision, the Tribunal has considered the affirmed evidence of Mr Meriwether given at the hearing and the documentation contained in Exhibit 1.

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

3. Subsection 81(1) of the Registration Act provides, relevantly, that an objection to a decision (other than an objection to an appealable collection refusal decision or a care percentage decision) must be lodged by a person within 28 days after a notice of the decision is served on the person.

4. Section 82 of the Registration Act provides that a person may lodge an objection under this part after the period of time for lodging such an objection has ended if, at the time of lodging the objection or at a later time, the person applies to the Registrar to consider the objection despite the period for objecting having ended. The application must state fully in detail, grounds of the application, including the circumstances concerning, and the reasons for, the failure by the person to lodge the objection as required by section 81.

5. The Agency sent Mr Meriwether a letter dated 24 October 2019 notifying him of the decision to reconcile his income estimate for the 2018/19 financial year at $90,643. Regulation 19(2) of the Child Support (Assessment) Regulations 2018 (the Regulations) provides that, unless the contrary is proved, service will be taken to have been effected at the time when the notice would, in the ordinary course of the post, have arrived at the place to which it was addressed. Mr Meriwether is therefore taken to have been served with the notice by on or about 3 November 2019 and needed to have lodged an objection with the Agency by early December 2019, which he did not.

6. Section 82 of the Registration Act relevantly provides that a person may apply for an extension of time in which to lodge an objection. The Registration Act does not set out criteria for consideration, but Agency policy contained in the Child Support Guide provides useful guidelines at 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 reasons 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.

7. The established cases indicate that the starting point 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) (Gallo) 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…

8. 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 under the following headings:

   ·the explanation for the delay;

   ·the merits of the substantial application;

   ·any prejudice to the other party, including in defending the proceedings occasioned by the delay;

   ·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. Mr Meriwether gave evidence that he notified the Agency of a change in his income in June 2019, when he secured a contract increasing his income to approximately $90,000 per annum. He said that it was in the course of this notification that he believed the Agency officer recorded the estimate of income he provided incorrectly at approximately $53,000, the income the Agency applied as his income in the assessment notices it issued on 26 June 2019 for the period commencing 10 June 2019, reflected at pages 73 to 75 of the Agency’s papers, Exhibit 1.

2. In the course of the hearing, the Tribunal raised with Mr Meriwether the correspondence contained in the Agency’s papers, Exhibit 1 sent by the Agency reflecting his 2018/19 income for child support purposes over the period 10 June 2019 to 24 October 2019, ranging from his replaced estimate of $53,133 in June 2019 (see page 72 of Exhibit 1) to a reconciled taxable income of $90,643 in October 2019 (see the Agency’s letter of 24 October 2019 at pages 83 and 84 of Exhibit 1), which he did not dispute receiving, most of which contained paragraphs notifying him of his objection rights in the event he disagreed with the decisions regarding his incomes upon which he was being assessed for child support purposes reflected in that correspondence.

3. Mr Meriwether was unable to provide any satisfactory explanation for his delay in lodging his objection until 30 July 2021.

Merits of the objection

1. At the hearing, Mr Meriwether acknowledged in his evidence that he accepts that his income at $90,643 has been correctly reconciled by the Agency in its decision of 24 October 2019.

2. He acknowledged in his evidence that from on or about June 2019 his income increased to approximately $90,000. He said he notified the Agency of this change in his income in the course of the telephone conversation with an Agency officer on or about that date.

3. During the course of the hearing, the Tribunal drew Mr Meriwether’s attention to the Agency’s file note of a telephone conversation with Mr Meriwether on 18 October 2019 recorded at page 82 of the Agency’s papers, Exhibit 1. This file note records Mr Meriwether contacting the Agency to complain of financial hardship and requesting a reduction in his child support liability on the basis that his income for the 2018/19 financial year was approximately $53,000.

4. The Agency file note reflects the [Agency officer] providing a number of options to Mr Meriwether regarding the estimated income to reflect his period of unemployment during the 2018/19 financial year, including the lodging of his income tax return for that year which Mr Meriwether seemed unable to adopt because he did not have the relevant employer group certificates.

5. Mr Meriwether acknowledged at the hearing that the income estimate of $53,000 he provided to the Agency officer in the course of a telephone conversation in June 2019 was not correct, and that he accepted that an accurate estimate of his income at that time was approximately $90,000. As noted in his evidence to the Tribunal set out above, he asserted in his evidence that the Agency officer had incorrectly recorded the income estimate he provided in the course of the telephone conversation in June 2019 as $53,000, and as a consequence of that erroneously recorded estimate figure, he was assessed at a much lower child support rate at a time when his income was actually higher and he had the income capacity to pay child support on an income of $90,000.

6. The Agency’s Exhibit 1 documentation reflects that on 20 June 2019 it accepted Mr Meriwether’s income estimate of $53,133 for the remainder of the 2018/19 financial year 10 June 2019 to 30 June 2019 and assessed him to pay child support at the rate of $427 per annum ($8.18 per week) for the period 10 June 2019 to 30 June 2019.

7. He acknowledged in his evidence at the hearing that this estimate was not correct and that he accepted his income for that period was accurately reflected at $90,643, the income upon which his child support should have been assessed, and not the income of $53,133.

8. He acknowledged that as a consequence of this error in the recording of his income at $53,133 and not the reconciled income of $90,643, he has incurred arrears of child support which he is unable to discharge on his current lower income.

9. Following further discussions with the Tribunal at the hearing, Mr Meriwether acknowledged that he has no basis for objecting to the Agency’s reconciliation of his income for the 2018/19 financial year at $90,643, and that his case on objection is without merit. He conceded that his issue is his incapacity to pay the arrears of child support consequent upon the correct reconciliation of his income at $90,643 in his current reduced financial circumstances.

10. He conceded at the hearing that the Agency has remitted some of the penalties it has imposed as a consequence of the reconciliation of his income for the 2018/19 financial year at $90,643 in place of his earlier income estimate of $53,133 for that financial year, but his current income is still being garnisheed by the Agency, and he is finding it difficult to meet his commitments.

11. The Tribunal finds that on his own admission, Mr Meriwether does not have an arguable case in the substantive appeal, that he has rested on his rights, and that the interests of justice would not be best served by granting him an extension of time to object to the Agency’s reconciliation decision of 24 October 2019.

12. As the Tribunal has reached the same decision as the objections officer in the decision under review, the Tribunal therefore affirms that decision.

DECISION

The Tribunal affirms the decision under review.