Ong and Child Support Registrar

[2006] AATA 800

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 800

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/366

GENERAL ADMINISTRATIVE    DIVISION		)
Re		RUDY HOEY GIOK ONG

Applicant

And CHILD SUPPORT REGISTRAR

Respondent

DECISION

Tribunal ROBIN HUNT

Date19 September 2006

PlaceSydney

Decision The Tribunal has decided not to grant Mr Ong an extension of time for review by the tribunal of a reviewable decision of the Child Support Registrar dated 31 January 2006.

[SGD]

Ms R. Hunt
  Senior Member

CATCHWORDS

Child support - application for extension of time – insufficient factors present for exercise of discretion

LEGISLATION

The Administrative Appeals Tribunal Act 1975 s29(7)
The Child Support (Assessment) Act 1989 s98Z

CASES

Hunter Valley Developments v Minister for Home Affairs and Environment (1984) 3 FCR 344

Re Commonwealth Scientific and Industrial Research Organisation and Barbara (1987) 6 AAR 300

Agar v Australian Postal Corporation (1998) 56 ALR 361

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Comcare v A'Hearn (1993) 45 FCR 441

REASONS FOR DECISION

19 September 2006 ROBIN HUNT, SENIOR MEMBER          

1.      The matter before the tribunal is an application for an extension of time to object to a child support assessment made pursuant to the Child Support (Assessment) Act 1989 (the Assessment Act). This assessment is in favour of Ms Kam and is in aid of supporting the children of Mr Ong, the applicant, and Ms Kam. Mr Ong applied to the tribunal for review of the decision of the Child Support Agency made on 31 January 2006 which refused an extension of time for him to make a late application for review of an assessment dated 10 May 2005.

Legislation

2.       The application for an extension of time is dealt with under the provisions of the Administrative Appeals Tribunal Act 1975. Subsection 29(7) states:

(7)The Tribunal may, upon application in writing by a person, extend the        time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.

consideration and reasons

3. The last day for making an application within time and in accordance with subsection 98Z of the Child Support Assessment Act was 13 June 2005, the refusal to grant an extension decision having been made on 10 May 2006 and forwarded to Mr Ong six days later on 16 May. Mr Ong applied in December 2005, approximately 6 months out of time.

4.      Before the tribunal are two decisions and letters addressed to Mr Ong prepared by an officer for the Child Support Agency (CSA). The two decisions are dated 10 May 2005 and 17 January 2006 respectively. Mr Ong also had a copy of both decisions and referred to them at the hearing. The letters accompanying the decisions informed Mr Ong of the procedure if he wished to object to the decisions. The letter accompanying the decision made on 10 May 2005 was dated 16 May 2005 and stated that any objection needed to be made in writing within 28 days. Mr Ong told the tribunal at a hearing on 10 August 2006 that he had been unwell from May to November 2005 and that was why he applied late for reconsideration of the decision of May 2005.

5.      Principles and factors applied and considered in an application for an extension of time by the tribunal and the federal court have been expounded on a number of occasions. Unless these factors are present, proceedings commenced outside of the prescribed period are unlikely to be entertained. Factors to which the tribunal has regard in exercising its discretion to extend time were detailed by the Federal Court in Hunter Valley Developments v Minister for Home Affairs and Environment (1984) 3 FCR 344. They were further summarised in Re Commonwealth Scientific and Industrial Research Organisation and Barbara (1987) 6 AAR 300 at 301-302, and qualified by observations in Comcare v A'Hearn (1993) FCR 441 at 444. I note that an unduly strict approach should not be taken: per Moore J in Agar v Australia Postal Corporation 56 ALR 361.

6.      In the present case, Mr Ong has explained the delay as being due to his high blood pressure and ill health. I note that the respondent did take note of Mr Ong’s ill health when it reconsidered his position on 31 January 2006. I further note from Mr Ong’s complaint to the tribunal of his main concern being about a demand from the CSA that he pay $5,000 in arrears, demonstrates some confusion in his mind about the roles of the Family Court and the tribunal. While these considerations are believable they are not compelling reasons for the delay.

7.      As to the second factor, I note that Mr Ong claims he did indicate to CSA officers that he contested the finality of the decision even though he did not seek formal review. Thirdly, however, prejudice to the CSA is a material factor militating against the grant of an extension. The considerable delay in seeking formal review by the CSA will prejudice the CSA in my view.

8. Next, I considered the merits of the substantive application, that is, the case dispute rather than the reason for the delay. It is not necessary for the tribunal to make a definitive assessment as to the merits of a substantive application but matters that point to the likely resolution or not of the dispute are important. The CSA has submitted that Mr Ong’s actual income is not the determining criterion for assessment of his income earning capacity. Section 98B of the Assessment Act enables a change to a determination of income. Ms Kam applied for a change to Mr Ong’s assessment and succeeded after consideration of submissions by both parties, as the record of decision shows. Mr Ong is unlikely to succeed in overturning that decision as the issues raised by him were taken into account in the decision. I have examined the reasons for the decision and can see that Mr Ong’s concerns were carefully addressed. In addition, I note that CSA has since his application made a further decision which involved consideration of the claims put by Mr Ong in the present matter. Therefore, the claims have been reconsidered in any event and there is no cogent reason for this tribunal to reconsider them yet again. If Mr Ong actually hopes for re-assessment and review of the requirement to pay arrears, this tribunal is not the appropriate forum. Mr Ong is able to have recourse instead to the Family Court for an examination of his claims in this respect.

9.      Again, fairness between an applicant and others should be taken into account by the tribunal. In this respect, Ms Kam’s interests must be taken into account in re-opening a decision made in the first half of 2005.

10.     As well, the CSA’s representative has told the tribunal that Mr Ong lodged a more recent application for review of the administrative assessment of his income for child support purposes. This application was based on the same grounds as the present objection. A decision was made on this application on the 31 January 2006. The Respondent pointed out that should its decision be unfavourable, Mr Ong could seek to air the whole situation in the Family Court and that this would be a more appropriate forum as it is not restricted to the same time limitations of the tribunal. Mr Ong could seek an order of the court covering all the child support assessments concerned. In my view, he will not suffer detriment as his assessment is already undergoing review and he could take the matter further through the Family Court. This is, of course a matter for Mr Ong.

11.     Lastly and overall, the applicant for extension of time should ensure that there is evidence indicating why time should be extended and the tribunal is to be satisfied that it is proper so to extend time. Mr Ong has not presented any significant evidence to the tribunal as to why the time should be extended other than medical evidence which might go some way to explaining his delay.

12.     It is my view that, having considered each of the factors pertinent to the tribunal exercising its discretion, it is not appropriate in this matter for an extension of time to be granted.

decision

13.     The tribunal has decided not to grant Mr Ong an extension of time for review by the tribunal of a reviewable decision of the Child Support Agency dated 31 January 2006.

I certify that the 13  preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         .....................................................................................
  Associate

Date/s of Hearing  10 August 2006 
Date of Decision  19 September 2006
Solicitor for the Applicant          Self-represented applicant       
Solicitor for the Respondent     Zoe Cameron