O'Donnell and Child Support Registrar
[2004] AATA 474
•14 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 474
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2004/83
GENERAL ADMINISTRATIVE DIVISION ) Re
Stephen O’Donnell
Applicant
And
Child Support Registrar
Respondent
DECISION
Tribunal Ms N Isenberg, Member Date14 May 2004
PlaceSydney
Decision The Tribunal sets aside the decision of the Respondent, the Child Support Registrar, dated 17 December 2003 to reject the Applicant’s application for an extension of time in which to lodge an objection to the decision of 18 September 2003, as amended by the decision of 24 September 2003.
[sgd] Ms N Isenberg, Member
CATCHWORDS
SOCIAL SECURITY – Child Support – Application for extension of time to lodge objection to decision reviewing child support payments – CSA made aware the decision was being contested – no prejudice to CSA identified – no wider prejudice to general public – merits of substantive application unclear – fair to grant the extension – decision set aside
LEGISLATION
Child Support (Assessment) Act 1989 Part 6A, sections 98C, 98X, 98Z, 98ZD, 98ZE
CASE LAW
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42REASONS FOR DECISION
14 May 2004 Ms N Isenberg, Member DECISION UNDER REVIEW
1. The decision under review before the Administrative Appeals Tribunal (‘the Tribunal’) was the decision of the Respondent, Child Support Registrar (‘the CSA’) dated 17 December 2003 (T20) to refuse to grant an extension of time for the Applicant, Mr O’Donnell to lodge an objection against the decision of the CSA dated 18 September 2003 (T3), as amended by the decision of 24 September 2003 (T5).
BACKGROUND
2. Mr O’Donnell is required to pay child support to Nicole Robertson for their 2 children, in accordance with a child support assessment determined by a decision under Part 6A of the Child Support (Assessment) Act 1989 (‘the Act’).
3. Part 6A of the Act provides for changes to be made to assessments where there are special circumstances. On 29 April 2003 Mr O’Donnell applied to have the annual rate of child support decreased, and Ms Robertson lodged a cross-application.
4. On 18 September 2003 a Senior Case Officer (’SCO’), Mr Brazil, made a decision to decrease the amount of child support payable (T3) and on 24 September 2003 amended his decision (T5).
5. On 29 October 2003 the CSA received a notice of objection to Mr Brazil’s decision from Ms Robertson (T12). A letter was sent to Mr O’Donnell on 13 November 2003 advising him of the grounds for Ms Robertson’s objection (T15).
6. On 27 November 2003 the CSA received a letter from Mr O’Donnell (T18), which contained Mr O’Donnell’s objection to Mr Brazil’s decision and an application for an extension of time to consider his objection. The letter also contained a response to Ms Robertson’s objection.
7. On 17 December 2003 an authorised CSA officer, Ms Sander, wrote a report refusing an extension of time to object, and Mr O’Donnell was advised in writing the same day (T20).
8. On 22 December 2003 Ms Robertson’s objection was disallowed (T21) and Mr O’Donnell was advised of the decision in writing on 23 December 2003 (T22).
APPEARANCES
9. A hearing was held before the Tribunal on 4 May 2004 at which Mr O’Donnell appeared without representation and the CSA was represented by Ms J Cuthbert.
ISSUE BEFORE THE TRIBUNAL
10. Section 98X of the Act allows a person to lodge a written objection to a decision made under Part 6A. Section 98Z provides that an objection must be lodged within 28 days after service of the notice of the decision on the person. However, section 98ZD allows for the lodgement of an objection out of time if an application is made for extension of time in which to lodge that objection.
11. As the CSA made a decision to refuse to extend time Mr O’Donnell is able to apply to the Tribunal for a review of the decision (subsection 98ZE(8)).
12. At the outset of the hearing Ms Cuthbert conceded that Mr O’Donnell had offered sufficient explanation for the delay in objecting to the decisions of 18 September 2003 and 24 September 2003. However, the CSA submitted that other factors meant that an extension of time to lodge an objection should be refused.
CONSIDERATION OF THE EVIDENCE AND FINDINGS
13. In coming to the correct and preferable decision, I took into account all the evidence, submissions, case law and relevant legislation.
14. I had before me documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), which I took into evidence. Other documents were tendered and these have been attached to the Tribunal’s file.
15. Ms Cuthbert submitted that the guiding principles to be applied in exercising a discretion to accept an application out of time are set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42. In particular, she referred to the decision of Justice O’Connor in the latter case at page 49:
“The principles to be applied in considering an application for extension of time under s 29(7) …are
(a) Prima facie proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so.
(b) It is relevant whether the applicant rested on his [or her] rights or took action to make the decision-maker aware that the decision was being contested;
(c) Any prejudice to the respondent that would be caused by granting the extension of time is relevant;
(d) Any wider prejudice to the general public in terms of disruption to established practiced is relevant;
(e) The merits of the substantial application are relevant; and
(f) Fairness of granting an extension of time as between the applicant and other persons in a like position is relevant.”
16. I discussed these principles with Mr O’Donnell and have examined those principles (in paraphrased form) below and the submissions of the parties.
Did Mr O’Donnell take action to make the decision maker aware that the decision was being contested?
17. The reasonableness of Mr O’Donnell’s delay in lodging his objection was conceded by the CSA.Is there any prejudice to the CSA that would be caused by granting the extension of time?
18. No prejudice was identified by the CSA. Ms Cuthbert advised that the CSA was in a position to re-consider matters throughout the time that it was required to assess payments to be made for the support of children. In those circumstances I do not consider that the CSA would be in any way prejudiced by the extension of time.Is there any wider prejudice to the general public in terms of disruption to established practices?
19. Mr O’Donnell said he thought the CSA was concerned about ‘precedent’. No submission was made on behalf of the CSA in this regard.20. It is fundamental to the determination of applications for extension of time that each case be individually considered.
Does the substantial application have merit?
21. On the basis of his letter to the CSA dated 27 November 2003 (T18), Mr O’Donnell’s grounds of objection, so far as remain relevant, were that:· Mr Brazil stalled the process as he refused to examine documentation from Mr O’Donnell’s solicitor that justified the cost of legal action and ignored further information supplied by the solicitor. Also, that Mr Brazil refused to accept other documentation and unnecessarily required information to be supplied in another format.
· The CSA was deceitful and incompetent, and tried to prevent him from taking action in the Local Court. He alleged that CSA deliberately drove up his costs and debt and were acting as an agent for Ms Robertson.
· Mr Brazil based the travel costs on a previous decision by Ms Johnson that had been reviewed under objection. Mr O’Donnell alleged that these decisions show that his travel cost were $1300 (although he asserts that they are more than that amount) and that as a result his assessment between April and November 2003 should be reduced.
· Mr Brazil should not assume what the court was thinking in relation to the travel costs as that matter was not put before the court.
· Mr Brazil deviated from earlier decisions about who ‘is in a stronger financial position’.
· Ms Robertson’s income should be based on an amount of $36,000 adjusted for inflation as she has provided no evidence of being dismissed and Ms Johnson has already decided that Ms Robertson resigned from a previous job for no reason.
· Mr Brazil did not take into account the value of the car Ms Robertson uses and failed to see that she has hidden assets. Also, that Mr Brazil failed to see that Ms Robertson can still work as a chef and has also retrained in management roles.
· Mr Brazil disregarded CSA guidelines in assessing Mr O’Donnell’s rent.
· Mr Brazil should have adjusted Mr O’Donnell’s income down or recognised substantial care from 12 April 2003.
22. In response to Mr O’Donnell’s contentions the CSA submitted that an extension of time to object should be refused as the grounds of objection lodged by Mr O’Donnell did not present sufficient reason to vary the decisions made by Mr Brazil. The decisions were made under Part 6A of the Act in accordance with the family law principles outlined in Chapter 2.6 of The Guide, the CSA’s technical resource.
23. The CSA contended that the reasons outlined by Mr O’Donnell do not provide him with a reasonably arguable case for varying that decision and that his objection has no merit. Many of the issues raised by Mr O’Donnell had been considered by other SCO’s in earlier change of assessment decisions and in subsequent objections. For example, in earlier decisions the same arguments about Ms Robertson’s property and income were found to have no merit. In making his decision Mr Brazil relied on Ms Johnson’s earlier decisions about rent and travel costs because the relevant travel had not changed. In making his decision Mr Brazil considered the issues raised. The grounds raised in Mr O’Donnell’s objection do not provide any basis to change that decision.
24. In departing from an existing administrative assessment the CSA is obliged to apply the matters set out in section 98C of the Act. It must be just and equitable, and proper to make such a determination and there must be one or more grounds for departure. Those grounds are set out in section 117 of the Act.
25. I do not propose to canvass Mr O’Donnell’s complaints against the criteria. The concepts to be addressed in the criteria are complex ones and the issues Mr O’Donnell raised are not matters to be considered in isolation. They require very detailed and considered evaluation of all the evidence about the circumstances of both Mr O’Donnell and Ms Robertson. To come to a firm view about the merits of his substantive application is therefore beyond the scope of my enquiry. In any event, the position is unclear, especially given that Ms Robertson was not called by the CSA to give evidence as to her circumstances.
Is it fair to grant an extension of time as between Mr O’Donnell and other persons in like position?
26. Although the CSA did not make any submissions on behalf of Ms Robertson it submitted that the practical effect of granting an extension of time for Mr O’Donnell to lodge an objection would be to expose Ms Robertson to the possibility of a retrospective variation to her child support entitlement.27. At the hearing Mr O’Donnell repeated his contention that the CSA was biased in favour of Ms Robertson.
28. I observe that the Tribunal had contacted Ms Robertson in February 2004, shortly after Mr O’Donnell’s application for review was filed. Her concerns, naturally, according to the Tribunal’s file, were as to how she would be affected financially and by child support policies/regulations. She was referred to Ms Cuthbert and then did not contact the Tribunal again, despite further efforts to seek her views on being joined as a party to these proceedings. In the end result, she was not joined as a party.
29. In discussions at the hearing, however, Ms Cuthbert agreed that Ms Robertson’s views would be sought on any objection by Mr O’Donnell, including the present matter, or any fresh application he might bring and her own present application. Ms Cuthbert advised that because applications before the CSA can have retrospective effect, Ms Robertson’s position as to past entitlements will always be open to re-consideration whenever any application or objection is considered.
30. I came to the view that Ms Robertson would not be prejudiced if Mr O’Donnell’s extension of time were allowed, particularly in that she presently has an application before the CSA herself in which the period addressed by Mr Brazil’s decision may also be reviewed, and also because, at any time, she is able to ask for a review which may include the period under review.
31. As to the broader class of applicants, Mr O’Donnell said he understood the CSA to be concerned about ‘precedent’, but, as I have noted, there were no submissions in that regard by Ms Cuthbert. I do not consider any finding in this case to be of particular relevance in any other matter before the CSA. Every case will turn on its own facts.
While prima facie proceedings commenced outside the prescribed period will not be entertained, is it, in this case, proper to do so?
32. The CSA conceded that as there is no onus of proof on Mr O’Donnell, the Tribunal must be properly satisfied that there is something about the case that makes it proper to allow the extension.33. The CSA submitted that Mr O’Donnell would not suffer a detriment if he were not granted an extension of time in which to lodge an objection. An application can be brought in a court exercising family law jurisdiction without first objecting to a decision. The court would have jurisdiction to consider the assessment for the period in question. The CSA contended that Mr O’Donnell would not suffer a detriment if an extension of time to object is not granted as he has the opportunity to canvas his issues with a court.
34. Mr O’Donnell however told me that he is ‘broke’. His legal fees in gaining access to his children were in excess of $45,000. Those fees have since escalated to $55,000, and his total indebtedness exceeds $90,000. He has no assets and he no longer works. Bankruptcy is imminent.
35. To propose that it is reasonable for Mr O’Donnell to embark upon further litigation is, in my view, plainly unrealistic. Mr O’Donnell was a capable advocate on his own behalf before me. However, it is an unfortunate truism, that unrepresented litigants are not ordinarily the best advocates for their personal causes, particularly in courts, and especially if the other party is represented.
36. It was submitted on behalf of the CSA that the material Mr O’Donnell provided in his objection has already been considered in determining Ms Robertson’s objection to the same decision. In reviewing Mr Brazil’s decision the authorised CSA officer, Mr Leary, had available and took into account the information Mr O’Donnell had supplied on 27 November 2003, being both the material in response to Ms Robertson’s objection and the material supplied as part of Mr O’Donnell’s objection.
37. Mr Leary was not called to give evidence. Mr O’Donnell invited my attention to a file note Mr Leary made of a telephone conversation with Mr O’Donnell on 24 December 2003 (T25/77). There Mr Leary wrote:
“I stated that his response [to Ms Robertson’s objection] was treated as a response and not an objection. I said that his response was considered and played a small part in the obj[ection] being disallowed. He asked if the decision was fully based on his respoinse [sic] to which I responded no.”
38. Mr O’Donnell said that this demonstrated that his view had not been fully taken into account in the course of consideration of Ms Robertson’s objection. I consider that at best, Mr Leary’s note is ambiguous to the extent that he may or may not have taken Mr O’Donnell’s objections into account.
39. Ms Cuthbert also informed me that Ms Robertson has applied for a further change to the assessment. The CSA contended that Mr O’Donnell would not suffer a detriment if an extension of time to object were not granted as he still has the opportunity to raise his issues during this change of assessment process. She conceded that the reviewing officer ‘may’ revisit previously raised issues, but, he need not.
40. In addition, it was submitted, Mr O’Donnell is able to lodge a further application under Part 6A of the Act for a change to his child support assessment for the period in question.
41. For these reasons, it was submitted, there is nothing to be gained in allowing Mr O’Donnell an extension of time to object to Mr Brazil’s decision.
42. Mr O’Donnell invited my attention to Mr Brazil’s decision in which he had adopted the views of previous case managers in relation to, for example, accommodation, motor vehicle, childcare costs etc (T3/13-21), rather than independently examining and determining the matters raised by Mr O’Donnell. Mr Leary, the review officer, wrote (T21/72):
“SCO Brazil has gone into great detail in his decision in discussing the incomes and the resources of both parties.”
Mr O’Donnell said this was patently untrue, given that Mr O’Donnell relied so heavily on decisions made by others.
43. Mr O’Donnell also referred me to page 23 of Mr Brazil’s decision (T3/32) in which, in relation to Ms Robertson’s car, and her general ability to meet expenses Mr Brazil had said:
“Centrelink would also have carefully scrutinized Ms Robertson’s income, earning capacity and financial resources in order for her to be eligible for continuing receipt of benefits.”
In this also, Mr Brazil was therefore said not to have made his own inquiries.
44. Mr O’Donnell expressed the view that he had no confidence that re-examination of his contention by any of the 3 avenues suggested by Ms Cuthbert would result in an outcome any different to Mr Brazil’s decision.
45. Mr O’Donnell also referred to Mr Brazil’s remarks (T3/20-21) wherein it was observed that ‘His Honour [Justice Rose of the Family Court] would have been aware of the legal costs incurred by Mr O’Donnell’ (emphasis added) and that it ‘would therefore be disrespectful to His Honour and the Family Court for this Office [the CSA] to take into account Mr O’Donnell’s legal expenses…’ It was submitted that in this too, Mr Brazil had come to a flawed decision.
46. Mr O’Donnell’s submission was that the process was fundamentally unsound, and biased towards the person who had a previous decision in his or her favour. By way of further example he noted that he had previously submitted to the CSA evidence that he was now paying an additional $140 per week for 3 bedroom accommodation, so that his children may have their own rooms as they do when living with their mother. This, he said, was supported by evidence from his real estate agent. However, an increase of only $70 per week was allowed by the SCO Johnson. No reason was apparently provided and when that decision was reviewed (Exhibit 1) there also was no indication of how that amount had been reached. Ms Cuthbert conceded that decisions are taken without the benefit of site visits to determine if the accommodation arranged is appropriate for the amount claimed, and in comparison with what is provided for the children at their alternate home. Mr Brazil, adopting the view of Ms Johnson, considered himself ‘unable’ to increase the notional rent allowance.
47. It had been conceded by the CSA that Mr O’Donnell offered an acceptable explanation for the delay in lodging his objection. This in my view was a significant concession, given that delay is at the heart of the issue under consideration. As I discussed with Ms Cuthbert at the hearing, although Justice O’Connor in Mulheron did not weight the factors to be considered in an application for extension of time, it is in the context of an applicant’s reasonable excuse for his delay that the other factors are properly considered.
48. Turning then to those other factors, I find that there is little, if any, prejudice to the CSA or Ms Robertson, or other applicants or to the public at large in allowing the extension of time. While I am unable to come to a view as to the merits of Mr O’Donnell’s objection, it is clear to me that the assessment was not undertaken with the degree of rigour that Mr O’Donnell is entitled to expect. What is of further concern perhaps is that the review officer thought that Mr Brazil had ‘gone into great detail’.
49. The Tribunal therefore grants an extension of time for the lodging of an application by Mr O’Donnell for a review of the decision dated 18 September 2003, as amended by the decision of 24 September 2003.
DECISION
50. The Tribunal sets aside the decision of the Respondent, the Child Support Registrar dated 17 December 2003 to reject the Applicant’s application for an extension of time in which to lodge an objection to the decision of 18 September 2003, as amended by the decision of 24 September 2003.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member
Signed: Guy Moloney .....................................................................................
Associate
Date of Decision 14 May 2004
Representative for the Applicant Self
Representative for the Respondent Jean Cuthbert
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