Reichman and Child Support Registrar
[2004] AATA 1046
•7 October 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1046
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/1409
GENERAL ADMINISTRATIVE DIVISION
Re: CHARLES MARCUS REICHMAN
Applicant
And: CHILD SUPPORT REGISTRAR
Respondent
DECISION
Tribunal: Miss E.A. Shanahan, Member
Date: 7 October 2004
Place: Melbourne
Decision:The Tribunal sets aside the decision under review and substitutes its decision granting the application for an extension of time.
(sgd) E.A. Shanahan
Member
CHILD SUPPORT AGENCY ‑ change in care arrangements ‑ substantial care ‑ date of effect of re‑assessment ‑ extension of time to lodge objection ‑ father un‑well ‑ prejudice ‑ legitimate expectation
Child Support (Assessment) Act 1989 s 98Z, 98ZA – 98ZE
The Guide chapter 4.1
Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344
Re Agar and Australian Postal Corporation [2000] AATA 1074
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 72 ALD 613
REASONS FOR DECISION
7 October 2004 Miss E.A. Shanahan, Member
1. The applicant seeks review of the decision dated 16 December 2003 by a delegate of the Child Support Registrar (the respondent), refusing his application for an extension of time. The decision was termed to be in line with current legislation and guidelines (T11). The applicant lodged an application for review to the Administrative Appeals Tribunal on 31 December 2003.
2. The applicant was self‑represented but the Tribunal notes that he is a lawyer with experience in appearing for clients before the Administrative Appeals Tribunal. The respondent failed to attend. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T‑documents), the Statement of Facts and Contentions lodged by the respondent on 12 May 2004 and the applicant’s Statement of Issues and Contentions lodged on 14 April 2004. The Tribunal directed that telephone inquiries be made of the respondent regarding their non‑attendance and spoke with the Child Support Agency (CSA) branches in Tasmania, Queensland and Canberra. Attendance by a representative of the CSA was said to be impossible due to involved staff members and delegates being on annual or sick leave. The Tribunal elected to hear the applicant’s submissions and proceed to a decision essentially on the papers.
Background to the Application
3. The applicant pays child support to his child’s mother, Ms S. Ashkenazi (the payee) and has done so since November 1997. The amount paid is based on the taxable incomes of the parents and care arrangements of their daughter.
4. On 20 January 2003 the Family Court issued Order N° ML6617 of 1998 altering the arrangements of care for the child, Tamara Lee Reichman, the parties having reached consent on these arrangements. This Court Order provided for the applicant to have 134 nights care of his daughter per annum. The applicant contacted the CSA on 7 July 2003 seeking information regarding the CSA’s record of the care arrangements. On 13 August 2003 changes were made to the assessment payments based on the income information for the appropriate previous financial year.
5. The applicant again contacted the CSA on 7 October 2003 advising that at that time, he had care of his daughter for 112 nights per annum and undertook to provide a copy of the Family Court Order. The CSA contacted the payee and confirmed that the applicant’s advice was correct. The applicant provided a copy of the Court Order to the CSA on 14 October 2003.
6. On 16 October 2003 the CSA amended the assessment to reflect the Court Order effective from 7 October 2003. Both parents were notified by letter (T8 ‑ Letter to applicant).
7. The applicant contacted the CSA on 7 November 2003 and it is recorded at T9 that he asked for the payment re‑assessment to be backdated to the date of the Court Order, as he had substantial care at that time. The CSA officer advised the applicant he would speak to the “T/coach” regarding the payment of arrears but that this might take a couple of weeks to be resolved. The applicant also pointed out that he had contacted the CSA on 7 July 2003 regarding their record of the care arrangements.
8. Notes of further telephone conversations on 19, 21 and 24 November 2003 are recorded (T9 p21 and p22). The record of the conversation of 19 November 2003 states that the applicant complained that the care assessments were not changed in July when he first contacted the CSA. The applicant queried why he would have reported the change in care if he did not want it followed up. The officer (Stefan) advised that the matter was being dealt with by another case officer who had referred the matter to the coach. The applicant was advised he would receive a telephone call in a few days time. Another officer (Scott) attempted to contact the applicant twice on 21 November 2003 and left instructions for other officers to advise the applicant when he returned the telephone call, that the team coach confirmed that the care assessment payments were to take effect from the date of the notification on the 7 October 2003. If the applicant wished to lodge an objection it needed to be in writing and accompanied by an application for an extension of time. These instructions were eventually relayed to the applicant on 24 November 2003.
9. The applicant lodged a request for an extension of time dated 24 November 2003 and addressed to the CSA at its Box Hill address (T10). It appears that this was received by the CSA on 28 November 2003.
10. On 16 December 2003 the application for an extension of time was refused (T11) and the applicant advised (T12). The basis for refusal was that the application was lodged out of time, that is, not within the 28 days of the decision of 16 October 2003. It is the CSA’s practice to allow 33 days for receipt of such an application and thus the application was 10 days out of time.
11. The respondent contended that the inquiry by the applicant dated 7 July 2003 (T3) was not an application to change the assessment at that time, as the applicant was “checking…but not reporting” (respondent’s Statement of Facts and Contentions p4).
Legislation and the Child Support Agency’s Policy Document entitled The Guide
12. Section 98ZA to 98ZE of the Child Support (Assessment) Act 1989 (the Act) provide the relevant legislation regarding time limits on lodging objections, grounds for same and applications for extensions of time as follows:
98ZAGrounds of objection
An objection must state fully and in detail the grounds of objection relied on.
98ZB Registrar to serve copy of grounds of objection on other party
(1)The Registrar must serve a copy of the grounds of objection:
(a)if the person objecting is an applicant for an administrative assessment—on the person from whom, or to whom, the application seeks payment of child support; or
(b)if the person objecting is a carer entitled to child support in relation to an administrative assessment—on the liable parent in relation to the administrative assessment; or
(c)if the person objecting is a liable parent in relation to an administrative assessment—on the carer entitled to child support in relation to the administrative assessment.
(2) A person served with a copy of the grounds of objection may lodge with the Registrar a notice in opposition to, or in support of, the objection.
(3) The notice must be in writing and must be lodged within 28 days after service on the person of the copy of the grounds of objection.
98ZC Consideration of objections by Registrar
(1) The Registrar must:
(a)consider an objection lodged under this Part, and any notice of opposition or support lodged under section 98ZB; and
(b)either disallow the objection, or allow it in whole or in part, within 60 days after the objection was lodged.
(2) The Registrar must give written notice of the decision to the person who lodged the objection and to any person who lodged a notice under section 98ZB in relation to the objection.
(3) A contravention of subsection (2) in relation to a decision does not affect the validity of the decision.
98ZD Application for extension of time
(1) If the period for lodging an objection under this Part has ended, a person may lodge the objection with the Registrar, together with a written application asking the Registrar to consider the objection in spite of the ending of the period.
(2) The application must state the reasons for the person’s failure to lodge the objection within the period required by this Part.
98ZE Consideration of applications for extension of time for lodging objections
(1) If a person applies to the Registrar under section 98ZD in relation to an objection, the Registrar must:
(a)consider the application; and
(b)either grant or refuse the application within 60 days after the application was lodged; and
(c)if the Registrar grants the application—deal with the objection under section 98ZC.
(2) If the Registrar does not make a decision on the application within 60 days after the application was lodged, the Registrar is taken to have refused the application at the end of that period.
(3) The Registrar must give written notice of the decision granting or refusing the application to the person who made the application.
(4) The notice must include a statement to the effect that, if the person is aggrieved by the decision, application may, subject to the Administrative Appeals Tribunal Act 1975, be made to the AAT for review of the decision. Except where subsection 28(4) of that Act applies, the notice must also include a statement to the effect that the person may request a statement under section 28 of that Act.
(5) A contravention of subsection (3) or (4) in relation to a decision does not affect the validity of the decision.
(6) If an application under subsection 98ZD(1) is granted, the person who made the application is, for the purposes of this Act, taken to have duly lodged the objection to which the application relates.
(7) A person aggrieved by a decision under subsection (1) may apply to the AAT for review of the decision.
(8) In subsection (7), decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.
13. The CSA’s policy document entitled The Guide in chapter 4.1 provides guidelines for the decision maker in relation to an application for an extension of time. In reaching such a decision the CSA must consider the following:
·The reason for the delay;
·The merits of the objection; and
·Any prejudice to the other parent.
Chapter 4.1 of The Guide provides as follows:
Reasons for delay
CSA will consider whether the parent has a reasonable excuse for failing to lodge the objection within 28 days. It will take into account issues such as illness, absence from home and any efforts the parent made to lodge the objection within time or as soon as possible outside of the time frame. CSA will also take into account whether the parent has raised their concerns in other ways, e.g. a complaint to CSA or the Ombudsman, in the meantime.
This is one factor to be weighed up with others when CSA makes its decision. CSA will not grant an application for an extension of time in all cases where the parent has a reasonable excuse for failing to lodge the objection within 28 days.
Merits of the objection
CSA must consider whether it is likely that the objection will be allowed if it grants the application for an extension of time. When considering the merits of the objection CSA will consider whether the objection is likely to be allowed if all the evidence is found to be true.
This is one factor to be weighed up with others when CSA makes its decision. CSA will not allow an extension of time in all cases where the objection has merit. It is an important consideration when considering whether it is necessary to extend time in the overall interests of justice. However, in some cases the delay may be so long that justice would not be served by changing a decision even if it was clearly wrong.
Prejudice to the other parent
CSA will consider whether the delay means that it would be difficult for the other parent to provide information relevant to the objection. For example, parents may not have kept receipts for child support payable to the other parent after a non‑agency payment has been credited and the period for an objection has expired.
It will consider whether the outcome of a successful objection would create an overpayment or significant arrears of child support. This takes into account the other parent’s right to rely on the decision after the period for an objection has expired.
Procedural fairness
If CSA is considering granting an extension of time it will advise the other parent of the application. It will give them the opportunity to respond to the information CSA is taking into account.
CSA will not contact the other person and advise them of the application unless it is considering granting the application for an extension of time.
Evidence before the Tribunal
14. The review has been conducted primarily on the papers. The applicant relied on his Statement of Issues and Contentions. The Tribunal noted that these contained reference to his health status and that he had been unwell during the first six to eight months of 2003. The applicant advised that he did not rely on his illness although he had been un‑well for some time. He declined to expand on the nature of his illness and its duration and advised that he would not be calling any medical evidence to support his claim of ill health.
Applicant’s Submissions
15. The applicant submitted that there was no requirement in the Act that an objection to a decision be lodged in writing. He acknowledged the distinction in s 98ZB of the Act which requires the registrar to provide a copy of grounds of objection to the other party. He submitted that the CSA in fact makes decisions purely on the basis of verbal advice and they have done so following his telephone conversation with an officer of the CSA on 16 October 2003 (T7). Likewise his objection to the decision of 16 October 2003 is recorded at T9 p21 in the form of notes reporting telephone conversations on 7, 19 and 24 November 2003. The first of these, on 7 November 2003, was well within the 28 day period. On 7 November 2003 he was advised that his application would be referred to a senior officer and that it might take a couple of weeks to resolve. The applicant submitted that this advice raised a legitimate expectation that his objection to the decision had been accepted (Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 72 ALD 613). In the matter of Lam the applicant was not successful as he did not rely, to his disadvantage, on his Statement of Intention (para 38 per Gleeson CJ). The applicant argued that in his case he did rely on the Statement of Intention to his detriment.
16. In relation to the CSA’s policy document regarding extensions of time to lodge objections, it is stated that the CSA will also take into account whether the parent has raised their concerns in other ways, for example a complaint to CSA or the Ombudsman, in the meantime. The applicant submitted that his complaints to CSA were well documented in their system records of contact but disputed the CSA’s interpretation of the effect of the telephone call of the 7 July 2003. He had undertaken to provide a copy of the Court Order as requested as soon as he had recovered from his then current medical problems. The applicant submitted that where CSA was required in reaching its decision to grant or refuse an extension of time, the merits of the objection will be considered and whether the objection is likely to be allowed if all the evidence is found to be true. The applicant submitted that his entitlement to payment re‑assessment existed from the time of the Court Order in January 2003. The Guide also states that the CSA in reaching the decision must look to the overall interests of justice. The applicant submitted that even if written notification was found to be necessary, in the interests of justice, an extension of time of 10 days should be granted because it is not such that would result in a miscarriage of justice.
17. On the question of prejudice to other parties namely the payee, the applicant submitted that CSA undertake to inform both parents of any pending decision before the decision is made.
18. The applicant submitted that while his entitlement to reduced child support payments existed from the date of the Court Order of January 2003, he was seeking payment of arrears from 7 July 2003, that being the time when he first contacted the CSA by telephone regarding the care arrangements. The applicant requested payment of expenses. The Tribunal has no such power.
Respondent’s Submissions
19. The respondent submitted in its Statement of Facts and Contentions dated 6 May 2004, that the guiding principles to be applied in exercising a discretion to accept an application out of time are set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and summarised in Re Agar and Australian Postal Corporation [2000] AATA 1074 at paragraph 6 as follows:
(1) The Applicant for extension should show an acceptable explanation of the delay and that it is fair and equitable in the circumstances to extend time.
(2) Action taken by the applicant which makes the decision-maker (and presumably also the other party to the decision) aware that he/she contests the finality of the decision is relevant. If the applicant has rested on his/her rights this may operate against the exercise of the discretion.
(3) Prejudice to the respondent is a material factor militating against the grant of an extension.
(4) The mere absence of prejudice is not enough to justify the grant of an extension. A delay which may result in the unsettling of other people or of established practices is likely to prove fatal to the application.
(5) The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted.
(6) Consideration of fairness as between the applicant and other persons in a like position is relevant.
20. The respondent conceded that the applicant took action to make the CSA aware that he was contesting the finality of the decision through his telephone contact on 7 November 2003. The respondent submitted that the applicant’s explanation for the delay was not acceptable of itself, however in light of the CSA’s response to his request for a review of the decision and the reasonable expectations created, the respondent accepts that the applicant has an acceptable explanation for the delay in lodging his objection.
21. The respondent conceded that granting the application for an extension of time would have caused no prejudice to the respondent but consideration must be given to whether any prejudice or unsettling effect would be caused to the payee. The payee would be exposed to the possibility of a retrospective change to her child support entitlements. The payee would have incurred an overpayment of child support.
22. The respondent submitted that on the evidence the applicant did not notify the CSA of a change in circumstances in relation to the care of his daughter until 7 October 2003. Thus the respondent’s decision, it was submitted was correct and as a consequence the applicant’s objection is without merit.
Tribunal’s Deliberations and Decision
23. The applicant has been entitled to a reduction in child support payments since 20 January 2003 when by consent of the parents the Family Court ordered a change in the child’s care such that the applicant had substantial care of his daughter. Due to claimed ill health the applicant did not pursue this entitlement until he made telephone enquiries on 7 July 2003 of the CSA regarding their record of the care arrangement. The applicant claims this enquiry was a verbal claim for re‑assessment. The respondent regards the telephone call as an enquiry as opposed to a request for re‑assessment. The Tribunal notes that the applicant was suffering from ill health at the time and while he would not elaborate on the nature and severity of his ill health, the Tribunal accepts his statement. The applicant did not claim that his ill health was a primary reason for his delay in contacting the CSA but the Tribunal regards it as a contributing factor.
24. The applicant’s contact with the CSA is documented in the latter’s data system. On the basis of the applicant’s telephone call on 7 October 2003, the CSA proceeded to re‑assess the payments due to the payee. The payee would have been aware of the change in care arrangements as she was a party to the consent order of the Family Court of 20 January 2003. The Tribunal cannot support the respondent’s submission of prejudice to the payee given her involvement in the consent order.
25. The applicant submitted that his telephone calls to the CSA raised a legitimate expectation that his claim was under consideration and thus he did not pursue his entitlements by written objection. The T‑documents indicate that the CSA’s contact with payers and payees is predominantly by telephone and certainly, the CSA acted on the applicant’s telephone request of the 7 October 2003 for re‑assessment of his child support payments.
26. Some four days after the hearing of this matter the Tribunal received a letter from the Senior Advisor, Legal and Quality Assurance of the CSA, Box Hill branch advising that they were unaware of the set hearing date. The relevant extracts from the CSA’s records were enclosed showing contact between the Tribunal and the CSA on 23 June 2004 and 15 July 2004. The entry of 15 July 2004 records that the officer dealing with this matter had telephoned the Tribunal on 9 July 2004 and was advised that the matter was listed for hearing on 30 July 2004 but that this would be confirmed. The Tribunal record contains a copy of the listing notice dated 13 July 2004 which was sent by mail to the Box Hill branch of CSA. On 22 July 2004 the officer dealing with the matter went on annual leave. The applicant’s file was not directed to another officer.
27. The Tribunal determines that, based on the applicant’s legitimate expectation that the CSA was considering his objection to the primary decision and in the interests of justice, the application for an extension of time is granted.
I certify that the twenty‑seven [27] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan, Member
(sgd): Olympia Sarrinikolaou
ClerkDate of Hearing: 30 July 2004
Date of Decision: 7 October 2004
Solicitor for the applicant: Self‑representedSolicitor for the respondent: No appearance
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