Mulder and Child Support Registrar (Child support)

[2018] AATA 2381

Mulder and Child Support Registrar (Child support) [2018] AATA 2381 (1 May 2018)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2018/PC013574

APPLICANT:  Mr Mulder

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                01 May 2018

APPLICATION:

An extension application made on 23 February 2018 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 6 December 2016 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS
Child support – Refusal to grant extension of time to apply for AAT first review – Departure determination – Lengthy delay - Reasons for delay reasonable – 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. Mr Mulder  and [Ms A] are the parents of [Child 1] (born April 2003), [Child 2] (born September 2004) and [Child 3] (born March 2007).  Mr Mulder is the parent liable to pay child support under the assessment.

2. On 15 April 2016 [Ms A] applied to the Department of Human Services, Child Support (the Child Support Agency) for a change to the assessment.

3. On 1 June 2016 the Child Support Agency made the decision to change the assessment so that:

   ·     From 1 January 2016 to 31 December 2017 the annual rate of child support payable by Mr Mulder  is increased by $3,108; and

   ·     From 15 April 2016 to 31 December 2017 the annual rate of child support payable by Mr Mulder  is increased by $4,320.

4. This was done on the basis of the special needs of the child (the ground commonly known as reason 2) and the high costs of caring for, educating or training the child in the way both parents expected (the ground commonly known as reason 3).

5. On 18 October 2016 Mr Mulder  lodged an objection with the Child Support Agency to that decision and also applied for an extension of time to object (the first extension of time application).

6. On 6 December 2016 the Child Support Agency refused to grant the extension application (the refusal decision) and Mr Mulder  was notified of the refusal decision in correspondence dated 6 December 2016.

7. On 23 February 2018 Mr Mulder  lodged an application with the Administrative Appeals Tribunal (the Tribunal) for an extension of time (the second extension application) for review of the refusal decision.

8. The matter was considered on 1 May 2018 on the papers (consistent with the Tribunal’s ‘Child Support Review Directions’).  The Tribunal had before it a bundle of papers provided by the Child Support Agency.

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

10. The issue which arises in this case is whether or not to grant Mr Mulder ’s request for an extension of time to review the refusal decision.

11. 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.

12. Section 90 of the Act, along with subsection 29(2) of the Administrative Appeals Tribunal Act 1975, establish that an application for review must be made within 28 days of being served with notice of the decision.

13. 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.  Mr Mulder was advised by the Child Support Agency about the outcome of the refusal decision by correspondence dated 6 December 2016.  Given Mr Mulder lodged his application with the Tribunal more than 28 days after he was served with notice of the refusal decision the Tribunal is satisfied that an extension of time was required.

14. 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 that 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.

15. 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 Mr Mulder ’s application to the Tribunal on 23 February 2018 in relation to the refusal decision made on 6 December 2016, of which he was notified by post, is approximately 403 days out of time.

2. In seeking an extension of time Mr Mulder states as the reasons for the delay that there is no mention on the refusal letter from the Child Support Agency of his rights to appeal the decision with the Tribunal.  Mr Mulder states it was only when dealing with another related matter that he was advised by the Child Support Agency on 20 February 2018 he would need to contact the Tribunal about the extension of time refusal.

3. The Tribunal notes the correspondence from the Child Support Agency dated 6 December 2016 in relation to the refusal decision makes no mention of Mr Mulder ’s appeal rights.  Following the refusal decision the Child Support Agency attempted to contact Mr Mulder by telephone on two occasions on 6 December 2016 to discuss the outcome of this decision but was unsuccessful.  It is therefore plausible Mr Mulder was not aware of his appeal rights.

4. The Tribunal also notes that in evidence provided by the Child Support Agency there is a transcript of a conversation between Mr Mulder  and the Child Support Agency dated 20 February 2018 where the officer states:

   I advised that we had refused an EOT request for an OBJ in December 2016 and checked the letter.  I said the letter does not advise him that he can appeal the decision through the AAT…”.  I advised that Jamie would need to contact the AAT…

5. The Tribunal is satisfied with the reasons provided by Mr Mulder for the considerable delay in applying to the Tribunal for review of the refusal decision and that he did not rest on his rights.

Merits of the application

1. To determine if the application for review has merit the Tribunal is required to consider whether or not another decision maker might consider it was proper to allow Mr Mulder  an extension of time to object to the decision to change the assessment.

2. Mr Mulder told the Child Support Agency he had objected late to the change of assessment because he found the decision “extremely hard to understand” and needed to seek independent advice which took “weeks of searching.” 

3. In a previous invalid request for an extension of time on this matter dated 19 September 2016, Mr Mulder stated he was requesting an extension because he did not receive notice of the decision made by the Child Support Agency.  He said he moved house on the weekend of 21/22 May 2016 and notified the Child Support Agency on 24 May 2016.  Mr Mulder said he found out about the decision on 8 September 2016 during a conversation with the Child Support Agency and then received the notice of the decision on 16 September 2016.

4. In considering these as reasons for objecting late, the Child Support Agency noted that Mr Mulder had not participated in the change of assessment process despite a number of attempts to contact him.  The Child Support Agency wrote to Mr Mulder on 1 June 2016 at the address reflected in their records advising him of the outcome of the change of assessment process and his objection rights.  The Child Support Agency also attempted to contact Mr Mulder by telephone on 1 June 2016 to advise him of the outcome but was unsuccessful.  The Child Support Agency also noted there was no evidence of Mr Mulder making contact on 24 May 2016 to update his address and his address was updated following an email from him on 3 June 2016.

5. As a result the Child Support Agency did not find the reasons provided by Mr Mulder for the delay in objecting to be valid.

6. The Child Support Agency also considered the merits of Mr Mulder ’s application for an extension of time to object.  Mr Mulder stated he was objecting to the change of assessment decision on the grounds the Child Support Agency had violated the Child Support (Assessment) Act 1989 because he had not formally responded verbally or in writing and was not aware the decision had been made.  The Child Support Agency found that appropriate attempts were made by telephone and mail to contact Mr Mulder and discuss the change of assessment application.  As Mr Mulder had provided no evidence to support his claims in relation to the change of assessment, the Child Supper Agency found there was no merit to his objection.

7. The Child Support Agency then considered the likelihood of any prejudice to [Ms A] and found that to consider an objection approximately 95 days after it was due would create some prejudice as [Ms A] had a right to rely on the decision made.

8. The Child Support Agency made the decision not to grant Mr Mulder  an extension of time as there was no valid reason for the delay, no merit to the objection and likely to be prejudice to both [Ms A] and the general public should the extension be granted.

9. The Tribunal is of the view that the Child Support Agency properly considered the various factors required before making the refusal decision.  Given this, even if the Tribunal did grant the second extension application and went on to hear the first extension application, it is unlikely the Tribunal would grant the first extension application, meaning there would be no need to consider Mr Mulder ’s objection.

10. As it is unlikely the Tribunal would grant the first extension application if the matter was heard the Tribunal therefore finds Mr Mulder ’s application has little merit.

Potential prejudice to the other party and the wider public

1. Mr Mulder ’s application to the Tribunal on 23 February 2018 is approximately 403 days late.  If the Tribunal were to hear the application there would be some prejudice to the Child Support Agency which would be the other party to the review.

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 a public expectation that there be a degree of certainty in relation to time limits, however, the law also allows for extensions of time.  In this case the Tribunal believes there would be some prejudice to the general public if an extension of time was granted given the length of the delay in Mr Mulder ’s application.

CONCLUSION

1. Mr Mulder has provided a satisfactory reason for the delay in his second extension application, however, the Tribunal has found there is little merit to his argument.  A conclusion that the applicant does not have an arguable case in relation to the merit of the matter weighs against a decision to grant the extension application irrespective of the reasons for the delay.

2. In such circumstances the Tribunal is satisfied that it is not proper to hear the application for review and will not grant the extension application.