Pullman and Child Support Registrar (Child support)

[2020] AATA 1486

Pullman and Child Support Registrar (Child support) [2020] AATA 1486 (8 January 2020)

DIVISION:Social Services & Child Support Division

APPLICANT:  Mr Pullman

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                08 January 2020

APPLICATION:

An extension application made on 18 September 2019 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 18 July 2019 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

CHILD SUPPORT – application for extension of time - no satisfactory explanation for the delay - arguable merit – potential prejudice to other party -  extension of time refused

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.

STATEMENT OF REASONS

1. This is an application by Mr Pullman for an extension of time to apply to the Tribunal for review of a decision of the Child Support Agency (CSA) dated [July] 2019. The CSA decided to disallow Mr Pullman’s objection to a “change of assessment” decision.

2. There is a time limit to apply for “AAT first review”: see section 90 of the Child Support (Registration and Collection) Act 1988 and paragraph 29(1)(d) of the Administrative Appeals Tribunal Act 1975. Mr Pullman was required to make his application within 28 days of receiving the decision of [July] 2019 electronically.

3. Mr Pullman made an application for AAT first review on 18 September 2019, outside the 28-day period. In short, Mr Pullman told the Tribunal that he was otherwise engaged with a change in care of his son; he also had day surgery for removal of a tumour in August 2019. He seeks a retrospective adjustment to his child support liability on the basis of his more recently lodged income tax returns.

4. The established cases indicate that the starting position is the prima facie rule that proceedings commenced outside a statutory period will not be entertained (Lucic v Nolan (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 Secretary, Department of Family & Community Services [2004] FCA 297 per Spender J). Spender J quoted McHugh J in Gallo v Dawson (1990) 64 ALJR 459 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 …

5. In line with Wilcox J’s survey of cases in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, the Tribunal proposes to consider the matters identified in Gallo v Dawson under the following headings:

   ·      the explanation for the delay;

   ·      the merits of the substantial application;

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

   ·      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 absence of a reasonable explanation for delay will ordinarily exclude the granting of an extension of time.

2. Mr Pullman was advised in writing of his right to seek further review by the Tribunal within the statutory 28-day period. Whilst Mr Pullman has put forward some understandable reasons for the delay, they are arguably not particularly compelling to the extent they do not satisfactorily explain why the application could nevertheless have been made within time. However, the Tribunal observes the delay here is not particularly significant.    

Merits of the objection

1. There is no point to granting an extension of time if an application is unlikely to succeed.

2. The Tribunal observes Mr Pullman’s earlier application to the Tribunal was dismissed in April 2018 on the basis that he failed to comply with reasonable directions of the Tribunal for documents, including income tax returns. Mr Pullman told the Tribunal that his tax returns had not been submitted at the time, and he was not in a position to comply. The CSA also observes that on a number of occasions, Mr Pullman had not supplied information requested from him.

3. Mr Pullman has now filed tax returns covering the relevant period; he seeks to effectively have the child support assessment retrospectively reassessed based on his tax return income.

4. The Tribunal observes the objections officer records the following:

   Mr Pullman has been assessed on the income which he receives from Centrelink from 1 January 2019 and submits he has no other income. It is reasonable to consider that a reduction in the child support payable by Ms [A] to reflect Mr Pullman’s earning capacity may place him in a position where the children’s proper needs cannot be met.

   On balance, given the history of the incomes used in the assessment for Mr Pullman; Mr Pullman now being the parent assessed to receive child support and Mr Pullman’s recent payment to clear his outstanding arrears balance, I am satisfied no increase to his income is warranted at this time. I consider that the ongoing operation of the child support formula assessment is the most appropriate outcome for Mr Pullman and Ms [A] moving forward.

5. Mr Pullman made his departure application [in] October 2018. Even in the event Mr Pullman could succeed in establishing a lower income should be applied to the assessment, it would require very compelling circumstances to backdate the effect of any departure which would reduce his child support liability prior to [October] 2018. This is particularly so given the record of earlier non-compliance with requests for additional evidence. Accordingly, on a very best case, the Tribunal considers Mr Pullman could only secure a better outcome for a brief period of a couple of months at the end of 2018. The most likely conclusion for the Tribunal to reach would be to decline any change, and affirm the CSA objection decision.

6. In light of those conclusions, the Tribunal considers this factor weights against granting an extension.

Potential prejudice to the other party

1. The Tribunal is concerned about potential prejudice to the other party. She has been entitled to rely, and budget, upon the original decision. This factor weighs against an extension being granted.  

Public interest considerations

1. Parliament has seen fit to set a 28-day time limit for the lodgement of objections so that parents (and the CSA) can act with certainty as to the outcome when the objection period has elapsed. The public has an interest in reviews of decisions made by the CSA being performed in a timely fashion and in a manner that ensures all applicants are treated fairly and equally. Accordingly, an extension of the time for objection is not to be automatically granted.

Conclusion

1. The Tribunal considers the application lacks reasonable prospects for success. In the absence of a very compelling explanation for the delay, the Tribunal considers the interests of justice are best served by refusing to grant an extension of time.