Regent and Child Support Registrar (Child support)

[2018] AATA 543

Regent and Child Support Registrar (Child support) [2018] AATA 543 (22 February 2018)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2017/MC012956

APPLICANT:  Mr Regent

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                22 February 2018

APPLICATION:

An extension application made on 4 December 2017 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 29 September 2017 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS
Child support - Application for extension of time - No reasonable explanation for delay - Minimal merit - Extension of time refused

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.

STATEMENT OF REASONS

1. On 4 December 2017 Mr Regent lodged an application with the Administrative Appeals Tribunal (the Tribunal) for an extension of time for review of a child support decision made on 29 September 2017.  The matter was considered on 22 February 2018 on the papers (consistent with the Tribunal’s “Child Support Review Directions”).  The Tribunal had before it a bundle of papers provided by the Department of Human Services, Child Support (the Child Support Agency).

2. Mr Regent and [Ms A]are the parents of [Child 1] (born January 2001) and [Child 2] (born August 2002).  Child support was registered for assessment by the Child Support Agency on 17 March 2009 and Mr Regent is the liable parent.

3. On 13 April 2017 [Ms A] applied for a change to the administrative assessment and on 10 July 2017 the Child Support Agency made the decision to set the adjusted taxable income (ATI) for Mr Regent at $168,000 for the period from 17 January 2017 to 31 March 2019 (the original decision).  This was done to reflect the income, property and financial resources of Mr Regent (the ground commonly referred to as Reason 8A).

4. On 2 August 2017 Mr Regent objected to the change of assessment and on 29 September 2017 the Child Support Agency allowed the objection in part (the objection decision).  The original decision was set aside and Mr Regent’s ATI was set at $168,000 from 17 January 2017 until a terminating event occurs for [Child 1] and [Child 2] respectively.  [Ms A]’s ATI was set at $36,560 for the period from 1 October 2017 to 31 December 2018.

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

6. The issue which arises in this case is whether or not to grant Mr Regent’s request for an extension of time to submit an application for review of a child support decision.

7. Part VIIA Division 2 of the Act sets out the procedures for applying to the Tribunal for a review of an objection decision made by the Child Support Agency as well as applying for an extension of time for such a review in the event the application is not made within the prescribed period.

8. Section 90 of the Act, along with subsection 29(2) of the Administrative Appeals Tribunal Act 1975, establish that an application for review must be made within 28 days of being served with notice of the decision.

9. If the 28 day period to apply for review has ended then a written application for an extension of time can be made under section 91 of the Act. Mr Regent was advised about the outcome of the objection decision in a letter from the Child Support Agency dated 29 September 2017. Given Mr Regent lodged his application more than 28 days after he was served with notice the Tribunal is satisfied that an extension of time was required.

10. Under subsection 92(1) of the Act, the Tribunal must consider and grant or refuse an extension application. In doing so, the Tribunal considers the guiding principles for the exercise of discretion to allow an extension of time as set out in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186. In that case, the Federal Court said that an extension of time should not be granted unless satisfied it was proper to do so, noting that, in general, applications or proceedings commenced outside of a prescribed time limit will not be considered.

11. A review of other relevant authorities establishes that when considering whether or not to allow an extension of time the Tribunal should consider and balance a range of factors.  These factors are a guide and are not exhaustive, but generally include:

    ·the reasons for the delay and whether the applicant rested on their rights;

    ·the merits of the substantive application;

    ·any prejudice to the other party including any difficulties they will experience in providing evidence as a result of the delay;

    ·any prejudice to the general public; and

    ·fairness in granting an extension of time.

Reasons for the delay

1. The Tribunal finds that Mr Regent’s application on 4 December 2017 in relation to the objection decision made on 29 September 2017 was 25 days out of time.  It is noted that Mr Regent submitted his application for review of the objection decision on 22 November 2017.  To have been within the prescribed period Mr Regent’s application should have been made no later than 9 November 2017.

2. In seeking an extension of time, Mr Regent states as the reasons for the delay that “there was confusion between myself and my representative as to who was to lodge the application.”  He also states that his initial application for review was dated 16 November 2017 “which was within time.”

3. The Tribunal notes that, in conversations with the Child Support Agency on 5 September 2017, 20 September 2017 and 28 September 2017, Mr Regent was reminded of his right to appeal to the Tribunal.  On 13 October 2017 Mr Regent’s nominated representative also discussed the details of his case with the Child Support Agency.

4. The notification of the objection decision provided by the Child Support Agency dated 29 September 2017 outlines what to do if Mr Regent disagreed with the decision.  This included asking the Tribunal to undertake a review “within 28 days from the date you receive this letter.”  The words “within 28 days” are in bold which, in the view of the Tribunal, gives a clear indication of the importance of this timeframe.

5. The Tribunal finds Mr Regent was aware of the need to submit his application for review within a prescribed period.  The Tribunal is also of the view that Mr Regent’s nominated representative, who is from Child Support Help Australia, would also be very aware of the need to apply within the prescribed period.  Mr Regent’s nominated representative spoke to the Child Support Agency on 13 October 2017 and Mr Regent’s application for review of the objection decision was not submitted until 22 November 2017.

6. While there may well have been confusion between Mr Regent and his nominated representative around who was submitting the application, the Tribunal does not find this to be a valid explanation for the delay in applying. 

7. The Tribunal also notes that it is the date an application for review is received, not the date it is signed, which is relevant in determining whether or not it has been lodged within the prescribed time.  Notwithstanding this, as Mr Regent has raised the matter, his application was dated 16 November 2017 and would have been out of time even if submitted on that date.

8. The Tribunal therefore finds Mr Regent has not provided a reasonable explanation for the delay in applying for a review.

Merits of the application

1. Mr Regent is seeking review of an objection decision which set his ATI at $168,000 for the purposes of child support.  It also set the ATI for [Ms A] at $36,560.  The impact of this decision was a reduction in the annual rate of child support payable by Mr Regent of approximately $2,022 from 1 October 2017.

2. In his application for review of the objection decision, Mr Regent states the objections officer “did not correctly assess all available financial information and surmised incorrect information in arriving at the decision.”

3. Before making any determination to depart from an administrative assessment, the Child Support Agency must first find a ground for departure. These grounds are listed in the Assessment Act and in this case it was made on the basis of Mr Regent’s income, property and financial resources.

4. In considering the merits of Mr Regent’s application, the Tribunal therefore conducted a careful review of the financial information used by the Child Support Agency in reaching its decision.  The Tribunal notes Mr Regent did not provide any additional evidence during the objection decision process and so the Child Support Agency relied on evidence obtained during the original decision.

5. A copy of Mr Regent’s 2015-16 tax return was obtained by the Child Support Agency from the Australian Taxation Office (ATO).  It shows Mr Regent derived his taxable income of $99,176 primarily from a salary drawn from his financial planning business, Diversified Financial Solutions, as well as dividends.  Mr Regent told the Child Support Agency he sold this business and as a result his income had dropped substantially.  That the sale took place is supported by ATO records showing minimal transactions on the Business Activity Statements for Diversified Financial Solutions in 2016-17.

6. On 30 June 2017 Mr Regent declared a monthly income of $1,000 from his new business as a mortgage broker and $400 per annum from interest and dividends.  His living expenses were declared as $168,236.  Mr Regent also declared the family home in Balwyn valued at $2.5 million with $1.78 million owing and another property in Mt Martha valued at $1.2 million with $600,000 owing.  He told the Child Support Agency he was in the process of selling the family home and relocating to the Mt Martha property purchased in January 2017.

7. An examination of Mr Regent’s Visa statements for the three month period from 11 February 2017 to 10 May 2017 includes debits and purchases of approximately $41,000 and payments of approximately $36,000.  In both the original decision and the objection decision the Child Support Agency calculated Mr Regent’s annual credit card expenditure to be approximately $167,000.  This was similar to the amount provided by Mr Regent for his living expenses.

8. In setting Mr Regent’s income for the purposes of child support at $168,000 the objections officer noted that, while it was difficult to ascertain an actual income for Mr Regent, child support legislation required a consideration of a parent’s financial resources and assets as well as their income.

9. The Tribunal is of the view that, in reaching a decision in relation to Mr Regent’s income, the Child Support Agency has taken into account all the relevant evidence available at the time.

10. It is not clear which financial information Mr Regent believes was incorrectly assessed at the time of the objection decision.  Mr Regent did not provide any new evidence during the objection decision process in relation to his financial affairs.

11. The Tribunal notes that as part of the objection decision process Mr Regent lodged a cross application on the ground that the costs of maintaining the children were significantly affected because of their special needs (the ground commonly referred to as Reason 2).

12. In order to establish this ground Mr Regent must provide evidence that one or both of his children have needs relating to a condition or disability that is out of the ordinary.  These needs must be different from those attributable to most other children.  The special needs must involve a cost that is additional to the normal needs of a child that are expected to be met from the child support assessment.

13. Mr Regent told the Child Support Agency he was paying for school fees, school computers, excursions and other school related costs as well as dental, orthodontic and medical costs and clothes, gifts and holidays for the children.  In particular he raised the matter of braces for [Child 1].  [Ms A] advised that no work had commenced on [Child 1]’s braces.

14. The Child Support Agency found these costs did not meet the criteria and were not special needs.  As such this ground was not established.  The Tribunal finds similarly.

15. The Tribunal therefore considers that, in the absence of any new evidence, Mr Regent’s application has little merit on the grounds of his income, property and financial resources or the special needs of the children.

16. Mr Regent also raised with the Child Support Agency his concern about the level of income used in the assessment for [Ms A].  As a result of his concerns the objections officer made the decision to set [Ms A]’s ATI at $36,560 for the period from 1 October 2017 to 31 December 2018.  As Mr Regent has not raised this matter with the Tribunal it has not been considered by the Tribunal in these deliberations.

Potential prejudice to [Ms A]

1. [Ms A] should ordinarily be able to rely on the child support assessment once the period for objection has passed.  On the other hand the application made by Mr Regent to the Tribunal is 25 days out of time.  The Tribunal does not consider that [Ms A] would be significantly disadvantaged if an extension of time to lodge an objection was granted.

Potential prejudice to the wider public

1. Time limits for the review of administrative decisions should be observed as strictly as possible in order to assist the proper administration of government agencies.  There is also a public expectation that there be a degree of certainty in relation to time limits, however, the law also allows for extensions of time.  In this case the Tribunal does not believe there would be significant prejudice to the general public if an extension of time to lodge an objection was granted.

Fairness in granting an extension of time as between Mr Regent and other persons in similar positions

1. The Child Support Agency notifies parties that they can seek a review of decisions with the Tribunal and they have 28 days within which to submit a request for such a review.  Most people comply within the 28 day timeframe.  It is clear the statutory time limit is to be enforced unless there are acceptable reasons for the delay.  There is nothing in Mr Regent’s situation that makes his circumstances markedly different to that of other applicants in a similar position.  The Tribunal finds that it would not be fair to others to grant Mr Regent an extension of time.

CONCLUSION

1. The Tribunal is of the view that Mr Regent has not provided a satisfactory explanation for the delay in applying for review of the objection decision.  In addition the Tribunal could find little merit to his application based on the evidence available.  The Tribunal notes that Mr Regent can lodge his own change of assessment application should his financial circumstances, or that of his business, change in the future.

2. The Tribunal therefore finds it would not be proper to grant an extension of time to seek review of the objection decision made on 29 September 2017.  Accordingly the extension application is refused.