Richter and Child Support Registrar (Child support)

[2018] AATA 1222

Richter and Child Support Registrar (Child support) [2018] AATA 1222 (6 March 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2017/MC012924

APPLICANT:  Ms Richter

OTHER PARTY:  Child Support Registrar

TRIBUNAL:Member J Leonard

DECISION DATE:  6 March 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS
Child support - Refusal of an extension of time to object - Rested on rights - Some merit - Discretion not to grant - 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 decision concerns whether an extension of time should be granted to allow Ms Richter to lodge an objection to a decision made by the Department of Human Services – Child Support (the Department).

2. Ms Richter and Mr Richter and are the parents of Child 1 and Child 2. Since March 2015 there has been a child support assessment made by the Department in respect of the children.

3. On 7 July 2017 a decision was made by the Department to depart from the child support assessment and vary Mr Richter’s adjusted taxable income to $121,100 for the period 29 March 2017 to 31 October 2018 and vary Ms Richter’s adjusted taxable income to $49,800 for the same period.

4. Notice of that decision was sent to Ms Richter with a covering letter dated 7 July 2017.

5. The Department received Ms Richter’s objection to the decision of 7 July 2017 on 31 October 2017. She also sought an extension of time in which to lodge the objection. Her application for an extension of time was refused by the Department on 15 November 2017.

6. Ms Richter lodged an application with this Tribunal on 17 November 2017 seeking a review of the decision to refuse her application for an extension of time. The application was heard by the Tribunal on 6 March 2018. Ms Richter participated in the hearing by telephone.

7. In addition to oral evidence given by Ms Richter, the Tribunal had regard to the documents supplied by the Department (folios 1 to 66).

ISSUE

1. The issues to be decided by the Tribunal are whether Ms Richter’s objection was lodged outside the statutory time frame and if so whether she should be granted an extension of time to object to the decision made on 7 July 2017.

CONSIDERATION

1. Subsection 80(1) of the Child Support (Registration and Collection) Act 1988 (the Act) provides that a party to a child support assessment can lodge an objection in writing to a decision made to depart from the assessment.

2. Section 81 of the Act requires that a person must lodge an objection to such a decision within 28 days after a notice of the decision is served on them.

3. Notice of the decision was mailed to Ms Richter on 7 July 2017. Her objection lodged on 31 October 2017 was received over two months outside of the 28 day limit.

4. Where the period for lodgement has ended, the person may send the objection to the Department along with an application requesting that the objection be treated as if it was duly lodged, that is, as if it was lodged within the allowed time (section 82 of the Act). Section 83 of the Act then provides that the Department must consider the application for an extension of time, grant or refuse that application and advise the person of the decision in writing. Section 89 of the Act allows the person who applied for the extension of time to apply to this Tribunal for a review of that decision.

5. The Tribunal considered the guiding principles for the exercise of a 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 it was proper to do so, noting that in general, applications or proceedings commenced outside of a prescribed time limit will not be considered.

6. A consideration of other relevant authorities establishes that when considering whether 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 that they will experience in providing evidence as a result of the delay;

   ·       wider prejudice to the general public;

   ·       fairness in granting an extension of time as between the applicant and other persons in a similar position; and

   ·       whether it is proper to grant the extension of time.

The reasons for the delay and whether Ms Richter rested on her rights

1. The letter of 7 July 2017 notifying Ms Richter of the decision clearly states that she could make an objection to the Department about the decision “within 28 days from the date you receive this letter”.

2. The Department claims Ms Richter was also notified of the decision orally on 12 July 2017, and on 28 July 2017 she was notified orally of her objection rights.

3. Ms Richter told the Tribunal that she had taken a week off work to visit her father who lives interstate and was diagnosed with [a terminal illness]. She arrived home on 7 July 2017. She was under a lot of stress and receiving email from Mr Richter’s lawyers about money she was required to pay him. She also had computer problems around June 2017. She overlooked the need to object within 28 days and put her child support concerns on the backburner because she was under pressure. She was able to continue to work during this time.

4. While the Tribunal is unaware of the date Ms Richter lodged her 2016/17 income tax return, it notes that she lodged her objection within two weeks of receiving a notice showing the assessment would reflect her 2016/17 taxable income of $39,784 from 1 November 2018. The Tribunal considers it likely that this event spurred Ms Richter into lodging an objection.

5. The Tribunal accepts Ms Richter’s evidence that she was faced with a number of stressors in her life at the time the objection officers’ decision was sent to her.  However Ms Richter continued to work and meet other day to day demands including the lodgement of her income tax return. In the Tribunal’s view Ms Richter was able to lodge an objection within 28 days but gave priority to other matters. The Tribunal finds that the delay in lodging the objection is substantial. Ms Richter rested on her rights and did not make efforts to challenge the decision until October 2017.

The merits of Ms Richter’s objection

1. In the decision made on 7 July 2017 an officer of the Department allowed Mr Richter’s application for a departure from the assessment on the ground that both Mr Richter’s and Ms Richter’s income, property and financial resources made the assessment unfair. Although a parent’s most recent taxable income is used in the child support formula, the Department can look beyond the taxable income when considering an application for a change of assessment.

2. Ms Richter told the Tribunal she is unhappy with decision of the objections officer because the officer varied her income to $49,800 when her taxable income for 2016/17 was $39,784.  She believes her taxable income should be used in the assessment. She is also unhappy that Mr Richter refuses to pay the full cost of the children’s education.

3. In varying Ms Richter’s adjusted taxable income, the objections officer considered the evidence regarding her current employment income, dividends and parenting payment entitlements and calculated her income to be in the vicinity of $51,822. The objections officer also found that Mr Richter meets 50% of the tuition fees for the children who attend a [private] school.

4. The Tribunal notes the high level of discretion exercised in making a decision to depart from a child support assessment. The Tribunal accepts that there could be some merit in Ms Richter’s objection in relation to the cost of educating the children given Mr Richter’s superior financial position; however, that does not mean that Ms Richter would necessarily succeed if an extension of time to object to the decision was granted. It is equally possible that an examination of her current financial circumstances may lead a decision-maker to conclude that Ms Richter’s adjusted taxable income should be higher.

5. The Tribunal considers that whilst there may be some merit in Ms Richter’s objection, this was by no means conclusive and did not outweigh the other considerations in deciding whether or not to allow an extension of time for her objection.

Prejudice to Mr Richter and the wider public

1. The Tribunal concluded that, in the absence of an objection, Mr Richter is entitled to rely upon the decision of the Department. If an extension of time was granted further time would elapse before the matter could be considered and this may add to any potential prejudice to the other party. There is no evidence of any prejudice to the wider public if Ms Richter was to be granted an extension of time.

Fairness to others in a similar position

1. The Tribunal considers that it would not be proper to grant Ms Richter an extension of time in which to lodge her objection as others in similar positions are required to lodge objections within time.

Whether it would be proper to grant an extension of time

1. The Tribunal has found that Ms Richter did not have adequate reasons for her delay in lodging an objection to the decision of 7 July 2017. She prioritised other matters and rested on her rights. Additionally any prospect of success may be limited. Those factors weigh towards the Tribunal exercising its discretion not to grant Ms Richter an extension of time to object.

DECISION

The decision under review is affirmed.