Packer and Child Support Registrar (Child support)

[2019] AATA 5116

Packer and Child Support Registrar (Child support) [2019] AATA 5116 (11 September 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/PC016870

APPLICANT:  Mr Packer

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member M Martellotta

DECISION DATE:  11 September 2019

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.

1. The decision of the tribunal and the reasons for the decision were delivered orally on 11 September 2019.

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

Reasons for decision

1. Mr Packer seeks independent review of a decision made by the Department of Human Services – Child Support (the Department) to not grant him an extension of time within which to lodge an objection to a decision made by that Department.

2. The statutory provisions relevant to this review are contained in Part VII of the Child Support (Registration and Collection) Act1988 (the Act) and the Child Support (Registration and Collection) Regulations 2018 (the Regulations).

3. The issue which arises in this case is whether Mr Packer should be granted an extension of time to lodge his objection to a decision made by the Department.

4. Section 80 of the Act provides that a person may lodge an objection in writing to the Department in relation to specified decisions made by the Department. This includes Change of Assessment decisions. Section 81 of the Act provides that a person must lodge an objection to such a decision within 28 days after a notice of the decision is served on them.

5. In cases where the lodgement period has passed, a person may send an objection along with an extension of time application requesting the Department to treat the objection as having been duly lodged (section 82 of the Act). The application must state fully and in detail the grounds of the application, including the circumstances concerning, and the reasons for, the failure by the person to lodge the objection in time. The Department must consider and either grant or refuse the application for an extension of time. If the application is granted, then the person is taken to have duly lodged the objection (section 83 of the Act). If the application is not granted, a person may apply to this tribunal for review of a decision on an application for an extension of time (section 89 of the Act).

6. The exercise of the discretion as to whether or not to grant an extension of time is on the basis of whether it is reasonable or proper to grant the application. A number of decisions provide guidance to the tribunal in determining this issue. It is clear from those decisions that the statutory time limit of 28 days is to be enforced unless there are acceptable reasons for departing from this prescribed timeframe.[1]

   [1] Brisbane South Regional Health Authority v Taylor [1996] HCA 25, the Federal Court in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 (Hunter Valley Developments) noted that in general, applications or proceedings commenced outside of a prescribed time limit will not be considered.

7. The following evidence is not in contention and the tribunal finds that:

a)On 5 June 2018 Mr Packer provided the Department with updated income tax declarations for the 2016/17 financial year. That information was used in the child support assessment for the 15-month period commencing 3 June 2018.

b)The Australian Taxation Office (ATO) subsequently (on 1 February 2019) provided details of Mr Packer’s taxable income for the 2016/17 financial year (this was significantly greater than the figure reported by Mr Packer in June 2018).

c)The Department made a decision on 1 February 2019 based on this information. On the same date they sent a notice of their decision advising Mr Packer that the new annual income amount for the 2016/17 financial year as provided by the ATO would be applied to the assessment. That notice of decision advised that Mr Packer had 28 days within which to lodge an objection.

d)An objection to the decision was made by Mr Packer on 5 June 2019. His extension of time application was refused on 25 June 2019.

10.  Mr Packer told the tribunal that the main reason he disagrees with the decision made by the Department is because he was bombarded by correspondence from the Department sent to his postal address and also to his myGov account inbox. He said that it is unreasonable to expect a person to be able to review and act on such information within the statutory timeframes imposed especially when dealing with the stress of a recent separation. Mr Packer also questioned whether sending him notices electronically to his account inbox was a legitimate form of service.

11.  The tribunal notes that the Regulations make specific reference regarding the service of notices. Section 31 specifically references the service of a notice can be effected by means of electronic communication. The tribunal is satisfied and finds that the Department served notice of their decision upon Mr Packer by correspondence dated 1 February 2019.

12.  The tribunal is also satisfied that on the evidence, Mr Packer rested on his rights in failing to lodge his objection within 28 days. The tribunal also concludes that in this matter, any substantive application to be made (should an extension be granted) does not have merit. In effect, Mr Packer disagrees with the Department decision to utilise the last relevant year of income to the assessment. However, child support provisions require the Department (unless in the case of a change of assessment application) to utilise the taxable income for the last relevant year of income in the administrative assessment. This means that for the period commencing 3 June 2018, Mr Packer’s 2016/17 taxable income applies.

13.  In this matter, the tribunal concluded that the other party is entitled to rely upon the assessment that was in place as a result of the 1 February 2019 decision and in that regard, there would be prejudice to that party if the discretion was exercised.

14.  The tribunal is also cognisant of the general public’s expectation that government departments and statutory bodies perform their functions quickly and fairly to promote reliable outcomes in the most cost effective manner – to exercise the discretion in this matter would be contrary to that public expectation.

15.  For these reasons, the decision under review is affirmed.