Newman and Child Support Registrar (Child support)

[2019] AATA 5125

Newman and Child Support Registrar (Child support) [2019] AATA 5125 (22 August 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC016554

APPLICANT:  Mr Newman

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member K Dordevic

DECISION DATE:  22 August 2019

1. The decision of the tribunal and the reasons for the decision were delivered orally on 22 August 2019.

2. The following paragraphs are the reasons for the tribunal’s decision.

CATCHWORDS
CHILD SUPPORT – refusal to grant an extension of time to object - no satisfactory explanation for the delay - no merit - 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

1. This review concerns whether an extension of time should be granted to allow Mr Newman to lodge an objection to a decision made by the Department of Human Services ‒ Child Support (the Department).

2. Relevant to this application Mr Newman and Ms [A] are the parents of [Child 1] and [Child 2]. There has been a child support assessment made by the Department since 3 April 2012.

3. On 31 October 2018 the Department, after receipt of Mr Newman’s 2018 income tax return, amended the assessment and applied his 2018 income tax return to the assessment. As a result he was placed on the fixed annual rate of child support for the period 1 December 2018 to 29 February 2020.

4. Mr Newman lodged an application for the fixed annual rate not to apply to the administrative assessment on 26 November 2018. On 7 December 2018 his application was refused.

5. On 12 February 2019 Mr Newman objected to that decision and requested an extension of time in which to lodge his application. On 2 May 2019 his application for an extension of time was refused.

6. He lodged an application to this tribunal on 16 May 2019, seeking a review of the decision to refuse his application for an extension of time in which to lodge his objection.

7. Mr Newman attended a hearing on 22 August 2019 by conference telephone. In addition to his oral evidence, the tribunal had regard to the documents supplied by the Department (folios 1 to 292).

CONSIDERATION

10. Subsection 80(1) of the Child Support (Registration and Collection) Act 1988 (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.

11.  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.

12.  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 an 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.

13.  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 186. 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.

14.  Mr Newman asserts that he was trying to object to the decision for “a long time”, that he is a stay-at-home father and his wife works and supports the family. Further, though he did do some part-time work, his income is under $5,000 per annum.

15.  The tribunal notes that the original decision was sent to Mr Newman on 7 December 2018. The decision included notice that he can ask for a review of the decision within 28 days from the date he received this letter. The tribunal also notes that on 10 December 2018 Mr Newman was advised of the decision verbally by a child support officer and the record reflects that he was told that he did have the option to provide more information and lodge an objection.

16.  Mr Newman asserts that he lodged a written objection immediately after the decision, he could not be any more specific, but suggested it may have been within hours of being advised of the decision. He suggests that the Department deliberately disregarded his application. There is no record of such an application being lodged with the Department, and the tribunal was not persuaded by Mr Newman’s assertion that the Department deliberately disregarded his objection. The tribunal is satisfied that he lodged his objection on 12 February 2019 and not before and therefore is satisfied that his delay was not reasonable.

17. Mr Newman seeks to have the minimum annual rate, and not the fixed annual rate, to apply, pursuant to an application made under section 65A of the Child Support (Assessment) Act 1989. In such circumstances, a parent must provide evidence to show that their current income is no more than the annual rate of parenting payment (single).

18.  Mr Newman initially sought to rely on his income tax return, which was not sufficient. The tribunal notes that Mr Newman provided a handwritten profit and loss statement which indicated that during the period 25 August to 25 November 2018 he received $2,440 in business income and incurred $2,177 in expenses. These expenses include registration of his vehicle, fuel and accommodation expenses, some of which appear to be annual and not quarterly expenses. Without the benefit of further explanations and documentation the tribunal is not satisfied that this document accurately reflects his income or expenses; in fact, the expenses appear to be overinflated and in the tribunal’s view cannot be relied upon. The profit and loss statement indicates that his income is at least $9,600 per annum and analysis of his declared expenses would indicate a business income of at least $6,000 per annum; again, Mr Newman has failed to provide sufficient evidence on which any firm conclusion can be reached. Mr Newman and his wife are also in receipt of rental income of about $19,072 per annum on an unencumbered property. The bank statements in evidence indicate that the only expenses are insurance and rates of about $830 per quarter. On the limited evidence available before it, the tribunal is not persuaded that Mr Newman’s income is below the rate of parenting payment (single). The tribunal concludes that Mr Newman’s substantive objection has little prospect of success.

19.  The tribunal does consider that there would be significant prejudice to Ms [A] and to the wider public if the extension of time were granted, as on the basis of the evidence before it Mr Newman’s objection has limited prospects of success. As such, a decision to grant Mr Newman an extension of time in which to lodge his objection may lead to unnecessary administrative costs.

20.  In Hunter Valley Wilcox J states that “‘the prescribed period’ of 28 days is not to be ignored” and that “it is the prima facie rule that proceedings commenced outside that period will not be entertained”. The tribunal finds that Mr Newman has not demonstrated an acceptable explanation for his delay, his case has little merit, he has rested on his rights and to allow him to commence an action beyond the prescribed period would prejudice the rights of the other party and the general public. The tribunal concludes that it would not be proper to grant Mr Newman an extension of time to object to the Department’s decision to refuse his application for the fixed annual rate not to apply. 

DECISION

The decision under review is affirmed.