PPZF and Child Support Registrar
[2016] AATA 261
•9 March 2016
PPZF and Child Support Registrar [2016] AATA 261 (9 March 2016)
Division
GENERAL DIVISION
File Number
2016/0420
Re
PPZF
APPLICANT
And
Child Support Registrar
RESPONDENT
And
VGST
OTHER PARTY
DECISION
Tribunal Regina Perton, Member
Date 9 March 2016 Date of written reasons 26 April 2016 Place Melbourne For reasons given orally during the hearing, the Tribunal refuses the applicant’s application for an extension of time within which to lodge an application for review.
........................................................................
Regina Perton, Member
It is noted that publication of this decision is approved by the Administrative Appeals Tribunal pursuant to s 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
PRACTICE AND PROCEDURE – extension of time for lodgement of application for review – relevant considerations – application refused.
Legislation
Administrative Appeals Tribunal Act 1975 s 29(2)
Child Support (Assessment) Act 1989
Cases
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 58 ALR 305
REASONS FOR DECISION
Regina Perton, Member
26 April 2016
The Tribunal provided oral reasons for its decision at a hearing of this application on 9 March 2015. The applicant, PPZF, subsequently requested written reasons for the decision. The reasons for the Tribunal's decision are set out below.
PPZF is the father of three children. VGST is the mother of the children and former partner of PPZF. They have been dealing with the Child Support Agency (CSA) since 2005. The parents are in dispute over the percentage of care each of them had of the two younger children who were still subject to the CSA regime as at September 2014 and the months following. The eldest was no longer covered by the child support provisions as at that date.
On 3 December 2014 the mother contacted the Child Support Registrar (CSR) to advise that there had been a change of care for the two children. VGST stated that the care arrangements changed on 10 September 2014 and that she now cared for the children for 91% of the time.
The CSR (through the staff) contacted PPZF on 18 December 2014. He agreed that there had been a change in care due to his employment changes but did not agree with the details provided by VGST.
On 10 January 2015 a delegate of the CSR determined that PPZF had cared for the two children for 9% of the time from 5 September 2014. However a change in payments would take effect from 3 December 2014 as that was the date when VGST notified the CSA of the change in care.
On 16 January 2015 PPZF lodged an objection with the CSR. Both parents were subsequently offered the opportunity to provide further evidence. On 20 March 2015 an objection officer changed the care percentages for each parent, determining that PPZF had 13 per cent of the children’s care and VGST 87%. The decision was based on the nights that PPZF had cared for the children between 5 September 2014 and 12 March 2015. The objection officer commented that there was no agreed pattern of care in place.
On 30 March 2015 PPZF lodged an application for review with the Social Security Appeals Tribunal (SSAT). On 26 May 2015 the SSAT set aside the objection officer’s decision and determined that PPZF’s care percentage was 7% and VGST’s was 93%. The decision was posted on 1 June 2015.
On 27 January 2016, more than six months after receipt of the SSAT decision, PPZF made an application for an extension of time in which to lodge an application with this Tribunal. The CSR opposed the application for an extension of time.
As indicated earlier, the Tribunal decided to refuse the extension of time on 9 March 2016 during a hearing by telephone. All parties attended the hearing.
RELEVANT CONSIDERATIONS
Subsection 29(2) of the Administrative Appeals Act 1975 states that a person has 28 days from the deemed receipt of the SSAT decision to lodge an application with the Tribunal. The SSAT decision was sent by post on 1 June 2015 and four working days are allowed for deemed receipt of a letter sent by ordinary mail. There is no dispute between the parties that the application lodged was lodged more than six months out-of-time. The Tribunal concurs.
In the Federal Court decision Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348, Wilcox J stated that normally, proceedings commenced outside the prescribed period will not be entertained. His Honour set out six principles which guide the use of the discretion to grant an extension of time:
·that the application for an extension of time must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend the time;
·whether the applicant has rested on his or her rights and whether the respondent was entitled to regard the claim as being finalised;
·whether there is any prejudice to any other party;
·that the mere absence of prejudice to other parties is not enough to justify the grant of an extension. However, any wider prejudice to the general public is a relevant factor;
·the merits of the substantive application; and
·considerations of fairness between the applicant and other persons in a similar position.
Similar principles to the above have been set out in subsequent cases.
EXPLANATION FOR THE DELAY
On 24 June 2015 the CSA wrote to PPZF advising that it was adjusting his child support following the SSAT’s decision. In the letter, the CSA stated:
…
What you can do
If you do not agree with the SSAT’s decision you have 28 days from the date your received the SSAT’s decision to appeal to the Administrative Appeals Tribunal (AAT) for a review of the SSAT decision.
If you do not agree with the SSAT’s decision you have 28 days from the date you received the SSAT’s decision to appeal to a court but only on a question of law.
The CSR, in the submission objecting to the extension of time, indicated that PPZF had lodged an application under the Freedom of Information Act 1982 (FOI Act) with the Department of Human Services on 9 December 2015, some six months after the SSAT’s decision. On 25 January 2015 the Department provided PPZF with a copy of his file. The Departmental officer processing the request advised PPZF that he would have been entitled to the documents without a formal request under the FOI Act.
PPZF stated that he had been seeking other avenues to resolve the issue including putting in a fresh application to the CSR for adjustment of the percentage of care for which he was still awaiting an outcome. He also indicated that during the period in question, he was being treated for a workplace injury which affected not only his health but also his decision making and actions in general.
The Tribunal notes that PPZF applied to the objection officer promptly after the original decision. Similarly he applied to the SSAT within a short period after the objection officer’s decision. The Tribunal is satisfied that he was not someone who was totally ignorant of there being tight time limits to apply for review.
The SSAT usually sends a covering letter with its decision alerting the parties to their right to AAT review and advising of the 28 day time limit. In this instance the Tribunal does not have a copy of that letter so is unable to confirm its contents. However the Tribunal and the parties have a copy of the CSA’s letter dated 24 June 2015 (cited above) reinforcing the time limits.
The Tribunal is satisfied that PPZF was made aware of the time limits by the CSA and most likely, by the SSAT. He chose not to pursue an application for review following the SSAT decision for several months after being notified of the outcome. It may well have been that he was hoping that his outstanding application to the CSR for reassessment of his percentage of care and the amount he was required to pay, would resolve the issue. Nonetheless, it is clear that he had been in possession of information about the time limit for applying to the Tribunal.
WHETHER THE APPLICANT HAS RESTED ON HIS RIGHTS
As indicated above, the Tribunal is satisfied that PPZF was made aware of the time limits to apply to the Tribunal. While he may have tried other avenues to resolve the matter, he did not lodge his application to the Tribunal in time.
PPZF cited his request under the FOI Act as being relevant to his delay. The CSR points out that the FOI request was not lodged until December 2015 and if PPZF wished to rely on those documents, he could have made the request much earlier. He did not require the documents to make an application to the Tribunal.
The Tribunal finds that PPZF has rested on his rights to apply for review of the SSAT decision. He lodged the Tribunal application more than six months after the due date. There is no evidence to suggest that during those six months he could not have lodged a claim. Whilst he had health issues, they did not prevent him pursuing his rights.
PREJUDICE TO OTHER PARTIES
The CSR conceded that it would not be prejudiced if an extension of time was granted. PPZF has ongoing dealings with the CSR so the late lodgement would not have much impact on the respondent.
WIDER PUBLIC CONSIDERATIONS
The legislation requires applications to the Tribunal to be lodged within 28 days of being officially notified of the SSAT’s decision. It is therefore clear that the Parliament wished parties to the dispute to seek review within a relatively short time from the original decision. On the other hand the legislation allows for an extension of time.
THE MERITS OF THE APPLICATION
The percentage of care that each parent has of a child is determined by the provisions of the Child Support (Assessment) Act 1989 (the Assessment Act) and the policy set out under that Act. The Tribunal has limited jurisdiction under that legislation, confined to determining the percentage of care at a particular point of time (as in this case) and whether the SSAT should have extended time for a late application lodged with it (PPZF applied to the SSAT within time so this is not relevant in this matter).
The decisions of the CSR’s delegate, the objections officer and the SSAT all set PPZF’s percentage of care at a particular point of time as less than 14 %. Where a parent has a percentage of care of less than 14%, the actual percentage does not affect the rate of child support payable. In other words, whether it is 1%, 7% or 13% is immaterial in terms of the rate of child support.
PPZF has not presented evidence that counters the evidence presented to date by VGST about the period in question. He has suggested that if a pattern of care over a longer period was considered, there may well be a different outcome in relation to percentage. The Tribunal must however confine itself to the relevant period and dates. It does not have a general brief to resolve issues between parents who are in dispute about the time their children spend with each of them.
Based on the period under consideration and the determinations of the original decision maker, the objections officer, the SSAT and based on the Tribunal’s calculations, the percentage of care of PPZF was less than 14% during the period in question between September and December 2014. As indicated earlier, the Tribunal is limited in what it can consider. The Tribunal is of the view that it is unlikely that PPZF can achieve a percentage of care of 14% or more based on the available evidence.
Where it is highly unlikely that there is a prospect of success, it is not in the interests of any of the parties, or indeed the Tribunal’s, to put everyone through the rigours, stresses and costs of revisiting a decision. That is particularly so where there are alternative actions possible such as seeking a fresh determination from the CSR which PPZF appears to have sought.
CONSIDERATIONS OF FAIRNESS
There does not appear to be anything in PPZF’s situation that makes his circumstances markedly different to those of other parties in a similar position.
SHOULD THE TRIBUNAL GRANT THE EXTENSION OF TIME?
The Tribunal is not satisfied that PPZF was ignorant of the time limits for lodging an application with the Tribunal. It is likely the SSAT advised him of the time limit. The CSA certainly advised him of the time limits within the 28 day period. The Tribunal is not satisfied that the reason given in PPZF’s application for extension of time, namely awaiting the outcome of an FOI request, is a sound reason for lateness given he had only put in the FOI application some six months after notification of the SSAT decision.
The CSR, who objected to the extension of time (and the Tribunal) may well have had a different attitude to extending time if the request had been made within a few weeks of the due date and if there had also been a sound prospect of a different outcome. Being confined to looking at the facts between September and early December 2014 has been a factor in persuading the Tribunal of the unlikelihood of an outcome that would lift PPZF’s percentage levels to 14 % or more.
On balance, taking all the factors into account, the Tribunal finds that the extension of time to lodge the application to the Tribunal should not be granted.
DECISION
30. For reasons given orally during the hearing, the Tribunal refuses the applicant’s application for an extension of time within which to lodge an application for review.
31. I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of:
32. Regina Perton, Member
.......................[sgd].................................................
Associate
Dated 26 April 2016
Date of hearing 9 March 2016
Applicant Attended by phone Advocate for the Respondent Belinda Lewis
Key Legal Topics
Areas of Law
-
Administrative Law
-
Family Law
Legal Concepts
-
Appeal
-
Procedural Fairness
-
Judicial Review
-
Jurisdiction
-
Standing