Orell and Child Support Registrar
[2005] AATA 1070
•28 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1070
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/443
GENERAL ADMINISTRATIVE DIVISION ) Re FERNANDO ORELL Applicant
And
CHILD SUPPORT REGISTRAR
Respondent
DECISION
Tribunal M. A. Griffin, Member Date28 October 2005
PlaceSydney
Decision The decision under review is affirmed. [SGD] M. A. Griffin
Member
CATCHWORDS
CHILD SUPPORT - failure to object within specified period – application for extension of time - no substantive reasons for delay - no basis for exercise of discretion - decision under review affirmed
Child Support (Assessment) Act 1989 ss. 98X. 98Z, 98ZA, 98ZD, 116
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Zizza v Commissioner of Taxation (1999) 99 ATC 4711
Comcare v A’Hearn (1993) 45 FCR 441
Commissioner of Taxation v Brown (1999) 99 ATC 4852
REASONS FOR DECISION
28 October 2005 M. A. Griffin, Member 1. This is an application by Mr Fernando Orell (“the Applicant”) for review of a decision of the Child Support Registrar (“the Respondent”) made on 22 March 2005 refusing to grant an extension of time to lodge an objection to a decision made by a delegate of the Respondent on 8 March 2004. The decision dated 8 March 2004 changed the assessment of the amount of child support to be paid by Mr Orell.
2. At the hearing, Mr Orell represented himself and his sister was present. Ms Aleema, an advocate with the Child Support Agency (“CSA”), represented the Respondent. The Tribunal received into evidence the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T28), documents exhibited as A1-A8 for the Applicant and documents exhibited as R1-R4 for the Respondent. Mr Orell gave sworn evidence and was cross-examined thereon.
History
3. Mr Orell is married with one child of that marriage. He also has two children from a previous marriage. The assessment of child support payable by Mr Orell commenced from 12 February 1998. There have been at least six applications for change of assessment of child support since the commencement (T21). Mr Orell tendered in evidence a copy of a Federal Magistrates Court decision, dated 10 October 2002 (exhibit A8), which upheld, in part, an appeal he made against other earlier decisions of CSA. Those decisions pre-date this matter.
4. The history of this particular matter commences with Mr Orell’s application for a change of assessment on 21 January 2003. On 26 March 2003 a Senior Case Officer (“SCO”), Mr Hodge, decided to change the assessment payable by Mr Orell for the period 1 March 2003 to 31 December 2003. Mr Hodge in fact decreased the amount payable to the annual rate of $6,696.00 (T3).
5. On 2 December 2003 CSA advised Mr Orell of a new assessment for the period 1 January 2004 to 31 March 2005 at the annual rate of $2,071.00 (T4).
6. His former wife, Ms Orell, applied for a change of assessment on 19 December 2003. She asked for the annual rate to be increased to $8,800.00 (T5).
7. Mr Orell was given a copy of her application and responded to CSA on 8 January 2004 (T6).
8. On 8 March 2004 a SCO, Mr Tobin, decided to change the assessment (“the Tobin Decision”), as follows: (T8)
· “That for the period 1 January 2004 to 31 March 2005 the annual rate of child support payable by Mr Orell is increased to $6,000.00
· That for the period 1 April 2005 until a terminating event occurs in relation to the elder child, the annual rate of child support payable by Mr Orell is increased to $6,300.00.”
9. That decision was sent to Mr Orell on 12 March 2004 with a covering letter which explained that 28 days were allowed for an objection to the decision to be made by Mr Orell (T9).
10. Mr Orell contacted CSA on 7 April 2004 and spoke to an officer about commencing his payments. The CSA file record of this conversation contains no mention of any objection to the Tobin Decision. On the same day the CSA officer wrote to Mr Orell confirming the details of their conversation (T12).
11. The last day of the 28 day period allowed for Mr Orell to lodge his objection was 14 April 2004. On 13 April 2004, CSA received a facsimile transmission of a typed letter dated 8 April 2004 from Mr Orell requesting an extension of time to lodge an objection to the Tobin Decision (T13). He wrote “I am currently working in my own business and am unable to afford to retain professional assistance in order to complete the objection. I have been able to do the work required to complete the objection myself. I simply have needed a little more time to do so…and so this application represents an extension of up to some 21 days”. There was a handwritten postscript as follows “Objection correspondence will be forwarded to your office soon”.
12. On 19 April 2004 CSA advised Mr Orell that his application for an extension of time was invalid because it was not accompanied by his objection. The letter stated “If you want the [CSA] to consider the objection, you must send the extension of time request again, together with the objection…” (T14).
13. There was no response to that letter and no objection lodged by the time of the next contact from Mr Orell on 2 December 2004, some eight months later. On that occasion Mr Orell rang CSA and made an oral application for child support to be payable to him by Ms Orell for his daughter (T15).
14. On 21 January 2005, CSA received a letter from Mr Orell dated 17 January 2005 applying for an extension of time to object to the Tobin Decision of 8 March 2004. The letter contained a statement of reasons for the objection (T18).
15. On 10 February 2005 Mr Orell made a further application for a change of assessment, asking for a reduction in his payment (T20).
16. On 22 March 2005 CSA refused Mr Orell’s application for an extension of time to object to the 8 March 2004 Tobin decision.
17. On 30 March 2005 another SCO, Mr Turton, made a decision on Mr Orell’s February 2005 application, to reduce the annual rate of payment to $2,400.00 from 29 November 2004 until the date on which his daughter ceases to be an eligible child for the purposes of the Child Support (Assessment) Act1989 (“the Act”) (T24). Subsequently there was a further decision and an objection by Mr Orell to that decision and Mr Turton’s decision (T27-28). Those matters are not relevant to this particular review.
Consideration of Issues
18. Section 98X of the Act provides for a parent to make an objection to the Registrar’s decision to make or refuse to make a departure determination. The Tobin Decision of 8 March 2004 is a decision to make a departure determination.
19. Section 98Z of the Act states that an objection must be lodged within 28 days of CSA serving notice of the decision on the parent. Using a formula in the CSA’s Guidelines for calculation of the particular period, the last day for Mr Orell to lodge his objection to the Tobin Decision was 14 April 2004.
20. Section 98ZA states “An objection must state fully and in detail the grounds of objection relied on”.
21. Section 98ZD provides:
(1) If the period for lodging an objection under this Part has ended, a person may lodge the objection with the Registrar, together with a written application asking the Registrar to consider the objection in spite of the ending of the period.
(2) The application must state the reasons for the person's failure to lodge the objection within the period required by this Part
22. Thus both the objection and the application for an extension of time must state the reasons upon which they are based.
23. Mr Orell lodged an objection before the 28 days period had expired but it did not “state fully and in detail the grounds of objection relied upon” and was thus invalid.
24. Mr Orell also applied for an extension of time to lodge “objection correspondence” at that time. His reasons for requesting the extension of time were quoted in paragraph 11 of these reasons for decision. It was another 8 months before the statements of reasons for both the objection and the extension of time to lodge the objection were provided by Mr Orell.
24. Mr Orell’s reasons for an extension of time to lodge the objection can be summarised as follows:
·He did not have the technical and legal knowledge to prepare an objection to the Tobin Decision
·He was relying on the promised assistance of a parent group
·After about 2 months he realised the parent group was not going to deliver the promised help
·There were family difficulties concerning his brother in law’s serious illness during this period
·He spoke to CSA staff by telephone and was told “to hurry and put the objection in quickly and never suggested in any way that it would be too late…or rejected for being late”.
·The Tobin Decision was based on false allegations and errors of fact, in particular the reasons for him starting to work for himself and the calculation of his income earning capacity
25. In cross examination, Mr Orell said the telephone calls with CSA staff had, in fact, amounted to 2 calls in November and December 2004. He was asked if the staff had told him in those calls that his application would be accepted. He said “nobody said it would be disallowed”. He was asked about the reasons for the delay. He said “it was my knowledge or lack of knowledge”. He said the parent group had not given him the promised assistance and he had to do the research himself using the internet. He said it took him several weeks to do. He said “at that time we had problems with my brother in law. At the time I thought it would not be a problem. I went through the Net and it was difficult. It took a couple of months”. He said “I wish I could say it was because I was sick or something but it was late because of my lack of knowledge, experience and understanding”.
26. Mr Orell said it would be fair to make allowance for his lack of knowledge. He said CSA could have warned him in its letter of 19 April 2004 (T14) but did not do so. He said the Tobin Decision contains many errors. He explained the circumstances surrounding his decision to leave his paid employment in 2000 and start working for himself. He said Mr Tobin’s assessment of his earning capacity was based on errors and false allegations surrounding this career decision. He said he cannot earn the income that the Tobin Decision is based upon.
27. The judgment of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 summarises the principles that guide the tribunal when considering whether to exercise the available discretion. The tribunal is mindful of the Full Court’s caution in Zizza v Commissioner of Taxation (1999) 99 ATC 4711 that the following principles are a guide only and the summary ought not be regarded as exhaustive or complete:
· Prima facie, proceedings should be commenced within the prescribed period and an applicant must advance an acceptable explanation for the delay.
· Any action that the applicant has taken, apart from applying for the extension, is relevant in considering whether there is an acceptable explanation for the delay.
· Prejudice to the respondent, if any, is a relevant factor although its absence is not enough to justify granting an extension.
· Public considerations, including the unsettling of established practices or of other people, may be taken into account.
· It is relevant to have regard to the merits of the substantial application.
· Considerations of fairness as between the applicant and others in a similar position are relevant.
Findings of fact
28. The delay in this matter amounts to some nine months. The explanation for the delay consists of the Applicant’s lack of knowledge, the failure of promised assistance to him and illness in the family. Mr Orell also blames the Respondent for failing to give him adequate warning of the potential refusal. I do not accept these as sufficient reasons.
29. It is plain from exhibit A8 that Mr Orell had been through an extensive objection and appeal process on other CSA assessments in October 2002 and for a lengthy period before that. In view of that experience of the procedures of assessment variation, I do not accept that his lack of technical and legal knowledge is an acceptable explanation for such prolonged delay. The failure of promised help and family illness are unfortunate but I am not satisfied they are, on the available evidence, of sufficient gravity to amount to an acceptable explanation for the delay.
30. Moreover, I do not accept that there was any failure on the part of CSA to provide Mr Orell with sufficient notice of the potential problems arising from any delay in lodging his application and objection. There is no evidence of any other action Mr Orell has taken that is relevant to this consideration of an acceptable explanation for the delay.
31. There is no onus of proof on the Applicant but the tribunal should be reasonably satisfied on the available evidence that there is some fact, or facts, which amount to an acceptable explanation for the delay. The Full Court has held that although an acceptable explanation for the delay is not a precondition for success in matters of this nature, it is expected that normally such an explanation will be given (Comcare v A’Hearn (1993) 45 FCR 441). In the circumstances, I find that Mr Orell has not advanced an acceptable explanation for the delay.
32. The Respondent concedes that there will not be any prejudice to the Commonwealth in any dealing with Mr Orell’s objection out of time. This is a relevant factor, “however, the mere absence of prejudice is not enough to justify the grant of an extension” (Hunter Valley Developments at 349).
33. It was submitted by Ms Aleema and not disputed by Mr Orell that granting an extension of time would be a disruption to established practice. More specifically, that it could cause prejudice to Ms Orell who may be faced with a review of a decision that she reasonably would believe was finalised and certain after such a substantial delay.
34. I note that the Child Support Agency’s Guide states that it will take into account the merits of the objection in making a decision on an application for an extension of time. However, in an application for an extension of time, it is not appropriate to embark on a trial of the merits. It is enough if the applicant’s case taken at its highest is reasonably arguable (Commissioner of Taxation v Brown (1999) 99 ATC 4852). It is true that assessors may diverge in their approaches to determining applications to change assessments. They may diverge in determining whether an assessment is not fair in light of the payee’s income and earning capacity. The Respondent concedes “it is possible that an officer considering Mr Orell’s objection might be persuaded to vary his child support assessment”. I found Mr Orell to be a witness of truth and I am inclined to accept that, taken at its highest, his objection is arguable.
35. Nevertheless, considerations of fairness as between an applicant and others in like position are relevant to the exercise of the discretion and I am persuaded that by granting the extension of time I would not be acting fairly as regards others who find themselves in a similar position.
36. I am conscious of the fact that refusing an extension of time would prevent a reconsideration of the Tobin Decision and as a consequence deny Mr Orell the opportunity of an appeal to the Court in respect of the Tobin Decision (see subsection 116(1A) of the Act). However, I note that Mr Orell can now pursue a remedy in the Court, as he has previously done successfully (exhibit A8), as a result of CSA’s most recent decision to allow in part his objection to a subsequent change of assessment decision.
37. In exercising the discretion under the Act, I am conscious of the need to balance the various matters raised by the principles in Hunter Valley Developments and those that have been discussed above. I have had regard to Mr Orell’s evidence given at the hearing and the exhibits tendered because each application for an extension of time is to be determined by reference to its own facts. After weighing up those matters I must be satisfied “ … that it is ‘fair and equitable in the circumstances’ to extend time” (Hunter Valley Developments at 348). The Applicant’s failure to challenge the Tobin Decision by proper objection in the time required, the quite considerable delay that occurred in making a proper application, the absence of an acceptable explanation for the delay, the potential prejudice to Ms Orell and the facility for Mr Orell to pursue an alternative process, allow me to conclude that it would not be fair and equitable to exercise the discretion to extend time for making the objection.
38. The decision under review is affirmed.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M. A. Griffin, Member
Signed: A. Garcia .....................................................................................
Associate
Dates of Hearing 21 July 2005
Date of Decision 28 October 2005
Representative of the Applicant self-representedRepresentative of the Respondent Ms P. Aleema
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