Morris and Child Support Registrar (Child support)

[2020] AATA 3657

Morris and Child Support Registrar (Child support) [2020] AATA 3657 (15 July 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/CC019286

APPLICANT:  Miss Morris

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member K Dordevic

DECISION DATE:  15 July 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – refusal to grant an extension of time to object - reasonable explanation for the delay – little merit – significant prejudice to other party – 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 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. The mother and the father are parents of one child. There has been a child support assessment made by Department of Human Services – Centrelink (the Department)  in place since 30 August 2012. From 22 June 2016 the mother was the liable parent.

2. The Department’s records initially reflected that on 8 July 2016 the mother lodged an income estimate of $42,726 (annualised to $43,561) for the period 8 July 2016 to 30 June 2017 with a year to date income of $1,700 for the period 1 July 2016 to 7 July 2016. It also reflected that on 25 March 2017 the mother lodged an income estimate of $24,042 (annualised to $32,382) for the period 21 March to 30 June 2017.

3. On 10 March 2020 the Department, after receipt of the mother’s 2017 adjusted taxable income of $88,506, reconciled the mother’s income estimate for the 2017 financial year. Written notice of the decision was sent to the mother on 10 March 2020, advising that she owed $4,872.24 in child support arrears for the 2017 financial year.

4. On 31 March 2020 the Department identified administrative errors (after being alerted of that fact by the mother), thereby amending its records to reflect that on 25 March 2017 the mother lodged an income estimate of $63,878 (annualised to $86,035) for the period 3 October 2016 to 30 June 2017. Her child support arrears were amended to $4,356.98 for the 2017 financial year.

5. On 1 April 2020 the mother lodged a complaint with the Department. A response to this complaint was sent to the mother on 20 April 2020.

6. On 19 May 2020 the mother objected to the 31 March 2020 decision and requested an extension of time in which to lodge her application. On 13 June 2020 her application for an extension of time was refused.

7. The mother lodged an application to this tribunal on 18 June 2020, seeking a review of the decision to refuse her application for an extension of time in which to lodge an objection.

8. The tribunal considered the matter on the papers on 15 July 2020. The tribunal had regard to the documents supplied by the Department (folios 1 to 220) and by the mother (A1-A20).

ISSUES

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

2. The issues which arise in this case are whether an extension of time should be granted to allow the mother to lodge an objection to a decision made by the Department.

CONSIDERATION

1. Subsection 80(1) of the Act provides that a party to a child support assessment can lodge an objection in writing to various decisions, including a decision relating to the particulars of the assessment. Section 81 of the Act requires that a person must lodge an objection to such a decision within 28 days after a notice of the decision is served on them.

2. Where the period for lodgement has ended, a person may send their objection to the Registrar along with an application requesting that the objection be treated as if it was lodged within the allowed time (section 82 of the Act). Section 83 of the Act provides that the Registrar must consider the application for extension of time, then grant or refuse that application and advise the person of the decision in writing. Section 89 of the Act allows the person who applied for the extension of time to apply to this tribunal for a review of that decision.

3. The tribunal considered the guiding principles for the exercise of the discretion to allow an extension of time as set out in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176. 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 generally applications commenced outside of the prescribed time limit will not be considered.

4. The original decision was made on 31 March 2020. The decision included notice that a request for a review of the decision must be made within 28 days from the date of receipt. The mother lodged an objection to that decision on 19 May 2020, nine days out of time (when taking into account subsection 160(1) and section 163 of the Evidence Act 1995). The mother asserts that she lodged her objection on time, as it was within the 28-day period after which she received a letter from the Department entitled ‘Response to your Complaint’ dated 20 April 2020.  The tribunal is satisfied in the circumstances that her delay was reasonable.

5. The decision of which the mother seeks review is the reconciliation of her income estimate. A parent may elect under subsection 60(1) of the Child Support (Assessment) Act 1989 (the Assessment Act) to estimate his or her current income in place of the adjusted taxable income for the last relevant year of income used in the administrative assessment. If such an election is made, after the end of the year of income, the Child Support Registrar will compare the parent’s estimated income with their actual income for the year. If the parent’s actual income is more than their estimated income, the assessment will be amended using the actual income, under the provisions of Division 7A of Part 5 of the Assessment Act. This is known as the estimate reconciliation process and the legislation says that the reconciliation is done when the Registrar ascertains the parent’s actual adjusted taxable income.

6. Relevant to this case, reconciliation is done using the method statement in subsection 64A(4) of the Assessment Act, as the mother’s the actual adjusted taxable income was more than the Department had recorded as the mother’s estimated adjusted taxable income. The tribunal acknowledges that an administrative error made by the Department on 25 March 2017 incorrectly recorded the mother’s income declaration of $3,300 per fortnight as $24,042.85, and not $86,035 as the mother had declared, for the period 3 October 2016 to 30 June 2017. This was corrected following the mother lodging a complaint. The tribunal has reviewed the Department’s record and, on the evidence available, is satisfied that that the mother’s child support liability for the 2017 financial year was correctly reconciled following the investigation of her complaint on the basis of her actual income during that period. The tribunal concludes that the mother’s substantive objection has little prospect of success.

7. The tribunal does consider that there would be significant prejudice to the father and to the wider public if the extension of time were granted, as the evidence suggests that the mother’s objection has a limited prospect of success. As such, a decision to grant the mother an extension of time in which to lodge an objection may lead to unnecessary administrative costs. The tribunal finds that it would not be fair to others to grant the mother an extension of time. This is largely because her application has a limited prospect of success.

8. The tribunal considers that in the circumstances of this case it would not be proper to grant the mother an extension of time to object to the Department’s decision to reconcile her income estimates. In the tribunal’s view, the mother is seeking a review of the conduct of Department, not the final reconciliation of her income estimate.  Certainly, there is merit to her claim of maladministration. The Department failed to accurately record her income estimate and reassured her that she did not have a child support debt, when in fact she did. The tribunal notes that the mother has significant mental health issues and is actively engaged in addressing her substance use and maintaining her commitment to recovery. Nevertheless, her extension of time application to object must be refused.

DECISION

The decision under review is affirmed.