Patil and Child Support Registrar (Child support)

[2018] AATA 3081

Patil and Child Support Registrar (Child support) [2018] AATA 3081 (22 June 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/SC013962

APPLICANT:  Mr Patil

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member S Brakespeare

DECISION DATE:  22 June 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS

Child support - Refusal to grant an objection of time to lodge an objection to a departure determination - Acceptable reasons for the delay - Arguments against substantive decision have no merit - Not proper to grant an extension of time - 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.

REASONS FOR DECISION

BACKGROUND

1. This review is about whether Mr Patil should be granted an extension of time to object to a decision made by the Child Support Agency on 7 December 2017.

2. Mr Patil is the parent liable to pay child support to [Ms A] in respect of their child who is 13 years old. [Ms A] lodged an application to change the administrative assessment. On 7 December 2017 an officer of the Child Support Agency[1] made a decision to depart from the administrative assessment in the following terms (the substantive decision):

   ·         for the period 1 March 2018 until 26 May 2023, or until such time as there is a terminating event:

   oMr Patil’s adjusted taxable income is set at $75,000 initially, increased on 1 March each year by the Child Support Inflation Percent as published in the Child Support Basic Values;

   o[Ms A] adjusted taxable income is set at $54,000 initially, increased on 1 March each year by the Child Support Inflation Percent as published in the Child Support Basic Values.

   [1] The Department of Humans Services, Child Support.

3. On 10 April 2018 Mr Patil sought an extension of time to lodge an objection to the substantive decision. On 18 April 2018 an officer of the Child Support Agency refused to grant the extension of time.

4. On 1 May 2018 Mr Patil asked the tribunal to review the decision to refuse to grant an extension of time. The hearing was held on 22 June 2018. Mr Patil gave evidence on affirmation to the tribunal via conference telephone. The Child Support Agency had provided the tribunal and Mr Patil with a bundle of papers relevant to the application (64 pages).

5. Relevant aspects of the evidence and material before the tribunal will be referred to in the tribunal’s consideration of the issues which it has to decide.

ISSUES

1. The statutory provisions relevant to this review are the Child Support (Registration and Collection) Act 1988 (the Act) and Child Support (Assessment) Act 1989 (the Assessment Act).

2. The issue which arises in this case is whether Mr Patil should be granted an extension of time to lodge an objection.

CONSIDERATION

1. Section 80 of the Act provides that a person may lodge an objection in writing to the Child Support Agency to specified decisions made by the Child Support Agency.

2. Section 81 of the Act provides that an objection to a decision must be lodged by a person within 28 days after a notice of the decision is served on the person.

3. Section 82 of the Act provides, in cases where the lodgement period has passed, a person may send an objection along with an extension of time application requesting the Child Support Agency to treat the objection as having been duly lodged. 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.

4. Section 83 of the Act provides that the Child Support Agency 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 lodged the objection.

5. The exercise of the Child Support Agency’s 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 its determination of this issue.[2] 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. The factors that the tribunal considered are set out below.

   [2] For example, Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 and Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42.

Reason for delay and whether Mr Patil rested on his rights

1. Mr Patil told the tribunal that he suffers from anxiety and post-traumatic stress disorder and those conditions are exacerbated by his dealings with the Child Support Agency. For this reason he did not lodge an objection to the decision when he first became aware of it. Eventually he had to contact the Child Support Agency as he could not pay the assessed amount. At the time the Child Support Agency told him that he would be assigned someone to personally assist him with his child support matters; however this has not occurred.

2. The tribunal notes that Mr Patil contacted the Child Support Agency on 14 February 2018 to query the decision and was advised that he needed to either make a new change of assessment application or to lodge an objection with an extension of time application. Mr Patil lodged his objection on 27 February 2018, however it was declined as it was out of time. He then lodged an objection along with an extension of time application on 10 April 2018.

3. The tribunal finds that Mr Patil did not alert the Child Support Agency to the fact that he was contesting the decision at any time during the period allowed  to lodge an objection. He did however contact the Child Support Agency not long after the time for lodging an objection had expired and indicated he did not agree with the substantive decision.

1. Mr Patil had advised the Child Support Agency that his psychiatrist could be contacted for further information about his mental health condition. The tribunal notes that the Child Support Agency chose not to contact Mr Patil’s psychiatrist and accepted Mr Patil's reason for delay without requiring further evidence from him.

2. The tribunal is satisfied that Mr Patil's reason for delay is acceptable.

Merit

1. In considering the merits of the case, it is not appropriate for the tribunal to form a conclusive view in extension of time proceedings. Rather, the tribunal needs to consider whether Mr Patil has an arguable case.

2. Provisions relating to departures from the administrative assessment are contained in Part 6A of the Assessment Act.

3. Mr Patil told the tribunal that the decision was incorrect as it set his income at $75,000 per annum and he does not earn that much money. The tribunal notes that the figure of $75,000 per annum was arrived at by grossing up Mr Patil’s tax-free income of $56,856.80. At the same time Ms Robert’s tax-free income was also grossed up. Both parties adjusted taxable incomes were varied by the departure determination to take into account the grossed up incomes.

4. Mr Patil believes that grossing up his income is not fair. The tribunal takes the view that grossing up a person’s non-taxable income brings their child support income, for the purposes of calculating child support, in line with people who have taxable income. The tribunal finds that it is open to the decision-maker to make such a determination and it does not consider that the decision to gross up Mr Patil’s income appears to be incorrect or that it results in an unjust or unfair outcome.

5. Mr Patil said that his child support has increased by 400% since 2016 yet his income has not increased in that time. The tribunal takes the view that the current assessment (which arises as a result of the substantive decision) appears to be based on an appropriate adjusted taxable income for Mr Patil.

6. The tribunal does not consider that Mr Patil’s arguments against the substantive decision have merit.

Prejudice

1. The tribunal finds that the delay in lodging the objection is approximately three months. In the tribunal’s view that the delay in lodging the objection is unlikely to cause significant prejudice to the other party ([Ms A]).

2. The tribunal finds that there is likely to be prejudice to the general public in granting an extension of time where the review has little chance of success, as is the case here.

Whether it is proper to grant an extension

1. The tribunal finds that Mr Patil had acceptable reasons for the delay and there is not likely to be significant prejudice to the other party if the extension of time was to be granted. However, given that Mr Patil’s objection does not have appear to have merit, the tribunal finds that it is not proper to grant the extension of time.

DECISION

The decision under review is affirmed.