Pappin and Child Support Registrar (Child support)

[2022] AATA 1707

Pappin and Child Support Registrar (Child support) [2022] AATA 1707 (19 April 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/AC022973

APPLICANT:  Mr Pappin

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member J Thomson

DECISION DATE:  19 April 2022

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – application for extension of time – no satisfactory explanation for the lengthy delay – no merit – prejudice to the other parent due and wider public – extension of time refused – decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted 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

BACKGROUND

1. Mr Pappin and [Mrs A] are the parents of [the child], born 2002.

2. Mr Pappin seeks review of an objection decision made by the Child Support Agency (the Agency) on 16 September 2021 refusing his request for an extension of time to lodge his objection to an earlier decision of the Agency dated 9 September 2020 changing his child support assessment and setting his adjusted taxable income (ATI) at $65,088 for the period 1 January 2020 to the end of the child support assessment case on 13 November 2020.

3. The tribunal heard the matter on 8 March 2022. Mr Pappin attended the hearing via conference telephone and gave affirmed evidence. The tribunal had before it documentation provided by the Agency (Exhibit 1). Mr Pappin had copies of these papers with him at the hearing.

ISSUES

1. The issues which arise in this case are reflected in the Reasons set out below.

CONSIDERATION

1. In reaching its decision, the tribunal has considered the affirmed evidence given at the hearing by Mr Pappin and the documents contained in Exhibit 1 before the tribunal at the hearing.

2. The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (the Registration Act). The relevant provisions are set out below.

3. Subsection 81(1) of the Registration Act provides, relevantly, that an objection to a decision (other than an objection to an appealable collection refusal decision or a care percentage decision) must be lodged by a person within 28 days after a notice of the decision is served on the person.

4. Section 82 of the Registration Act provides that a person may lodge an objection under this part after the period of time for lodging such an objection has ended if, at the time of lodging the objection or at a later time, the person applies to the Registrar to consider the objection despite the period for objection ending.

5. The Registration Act does not set out criteria for consideration, but Agency policy contained in the Child Support Guide provides useful guidelines at chapter 4.1.5. In summary, the Child Support Guide suggests it is ultimately a question as to whether the interests of justice favour the grant or refusal of the application in the particular circumstances. Factors to be considered are the reasons for delay, the merits of the objection, whether the person has rested on their rights and any potential prejudice to the other party or the public.

6. The established cases indicate that the starting point is the prima facie rule that proceedings commenced outside a statutory period will not be entertained (Lucic v Nolan I (1982) 45 ALR 411 at 416). However, the primary concern “is to do that which will enable justice to be done between the parties” (see Martinsen v Department of Family & Community Services [2004] FCA 297 per Spender J). Spender J quoted McHugh J in Gallo v Dawson (1990) 64 ALJR 459 (Gallo) as follows:

   In order to determine whether the rules [imposing time limits] will work an injustice it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time.

   When the application is for an extension of time …it is always necessary to consider the prospects of the applicant succeeding in the appeal …

7. In line with Wilcox J’s survey of cases in Hunter Valley Developments P/L V Cohen (1984) 3 FCR 344, the tribunal proposes to consider the matters identified in Gallo under the following headings:

   ·the explanation for the delay;

   ·the merits of the substantial application;

   ·any prejudice to the other party, including in defending the proceedings occasioned by the delay;

   ·any public interest considerations that might flow from a successful application, including “the unsettling of other people…or of established practices”.

Explanation for the delay

1. The agency’s documentation contained in Exhibit 1 reflects that it sent Mr Pappin two letters dated 9 September 2020 informing him of its decision on 9 September 2020 regarding [Mrs A]’s application for a change of assessment dated 20 May 2020. Regulation 19(2) of the Child Support (Assessment) Regulations 2018 provides that, unless the contrary is proved service of the agency’s letters dated 9 September 2020 will be taken to have been affected at the time when those letters would, in the ordinary course of the post, have arrived at the place to which they were addressed.

2. Mr Pappin gave evidence at the hearing that in September 2020 he was receiving his correspondence from the Agency by post. He would therefore be taken to have been served with the Agency’s letters notifying him of its decision to change his child support assessment by late September 2020 (COVID-19 amendments to the Regulations provide for a 12-day postage period), and Mr Pappin therefore needed to have lodged his objection to this by the latter part of October 2020, which he did not.

3. Mr Pappin gave evidence that in September 2020, he was residing at [Address], South Australia. He said there were two residences located on the property, one of which was numbered [Street number] and occupied by tenants, and his residence numbered [Street number]. He gave evidence of some confusion with the delivery of mail at his address but was not able to give evidence that he did not receive the agency’s letters of
   9 September 2020 notifying him of its decision of that date to change his child support assessment.

4. He acknowledged in evidence the telephone conversation he had with an Agency officer on 28 September 2020 recorded at page 188 of the Agency’s papers, Exhibit 1. This contact advised Mr Pappin of his ongoing child support liability, that the change of assessment decision varied his adjusted taxable income to $65,088 from 1 January to 13 November 2020.

5. In such circumstances, the tribunal is not satisfied that Mr Pappin had adequate reasons for the delay in lodging his objection. The tribunal is satisfied that Mr Pappin did rest on his rights.

The merits of the father’s objection

1. Mr Pappin seeks to object to a decision made to vary his adjusted taxable income on the basis of deposits made into his business bank account from 31 May to 28 August 2020. After apportioning half of the gross income to Mr Pappin (in line with his 50% share of the business) and by applying the Australian Taxation Office’s small business benchmarks to deduct reasonable business expenses, the Agency determined his annual income and financial resources were in the vicinity of $65,088.

2. There is no evidence to indicate that there was better information available to the Agency on which to determine his income and financial resources. Further, Mr Pappin has not tendered into evidence any documentation of financial statements that would indicate a contrary finding was appropriate.

3. The tribunal is of the view that this decision is reasonable, given the available evidence. In the tribunal’s view there is no arguable merit to the application. Certainly, there is no compelling evidence to suggest that another decision maker would make a decision more favourable to Mr Pappin.

4. The tribunal concludes that if granted an extension of time in which to lodge his objection, it is likely that the Agency would determine that Mr Pappin’s objection does not have merit.

Prejudice to [Mrs A] and the wider public

1. The tribunal does consider that there would be significant prejudice to [Mrs A] if an extension of time was granted.

2. The tribunal is satisfied that there would be prejudice to the wider public if the extension of time were granted, as Mr Pappin’s objection has limited prospect of success. As such, a decision to grant him an extension of time in which to lodge his objection may lead to unnecessary administrative costs.

Fairness in granting an extension of time as between the applicant and other persons in a similar position

1. The tribunal finds that it would not be fair to others to grant Mr Pappin an extension of time. This is largely because his application has limited prospect of success.

Whether it would be proper to grant an extension of time

1. The tribunal considers that in the circumstances of this case it would not be proper to grant Mr Pappin an extension of time to object to the Agency’s decision of 9 September 2020.

DECISION

The decision under review is affirmed.