Rouhani and Child Support Registrar (Child support)

[2020] AATA 2145

Rouhani and Child Support Registrar (Child support) [2020] AATA 2145 (15 May 2020)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2020/PC018657

APPLICANT:  Mr Rouhani

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                15 May 2020

APPLICATION:

An extension application made on 17 March 2020 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 9 October 2019 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

CHILD SUPPORT – application for extension of time – departure determination - no satisfactory explanation for the lengthy delay – some merit – prejudice to the other parent due to long delay - 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 17 March 2020 Mr Rouhani lodged an application with the Administrative Appeals Tribunal (the Tribunal) for an extension of time for review of a child support decision made on 9 October 2019.  The matter was considered on 15 May 2020 on the papers (consistent with the Tribunal’s ‘Child Support Review Directions’).  The Tribunal had before it a bundle of documents provided by the Child Support Agency.

2. Mr Rouhani and Mrs [A]are the parents of [Child 1] (born September 2005) and [Child 2] (born June 2007). The case commenced on 23 November 1999 with collection by the Child Support Agency since 15 March 2017. Mr Rouhani is the liable parent.

3. On 8 February 2019 Mrs [A] applied for a change to the administrative assessment on the basis of a parent’s income, property, financial resources or earning capacity (the grounds commonly referred to as Reasons 8A and 8B). Mr Rouhani made a cross application also on the basis of Reason 8A.

4. On 27 June 2019 the Child Support Agency made the decision to change the assessment so that for the period from 13 February 2019 to 12 February 2021 the annual rate of child support payable by Mr Rouhani is set at $10,000 (the original decision).

5. On 3 July 2019 Mr Rouhani objected to this decision and on 9 October 2019 the Child Support Agency allowed the objection in part and made the decision to change the assessment so that for the period from 8 February 2019 to 7 February 2021 the adjusted taxable income for Mr Rouhani is set at $48,211 per annum (the objection decision).

6. This was done to reflect the income, property and financial resources of Mr Rouhani (Reason 8A).  A ground in relation to Mr Rouhani’s earning capacity (Reason 8B) was not established nor was a ground in relation to Mrs [A]’s income, property and financial resources.

7. 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).

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

9. 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.

10. Subsection 29(2) of the Administrative Appeals Tribunal Act 1975 establishes that an application for review must be made within 28 days of being served with notice of the decision.

11. 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. The Tribunal finds Mr Rouhani was advised about the outcome of the objection decision by electronic means in a letter from the Child Support Agency dated 14 October 2019. Given Mr Rouhani lodged his application more than 28 days after he was served with notice, the Tribunal is satisfied that an extension of time was required.

12. 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 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.

13. 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 Rouhani’s application for an extension of time on 17 March 2020 in relation to the objection decision made on 9 October 2019, of which he was notified by electronic means on 14 October 2019, is approximately 126 days out of time.

2. In seeking an extension of time Mr Rouhani cites two main reasons for the delay in his application. Mr Rouhani states that previously he could not afford to complete his 2018–19 tax return but this has now been finalised and should be used to assess his level of child support.  Mr Rouhani also states that a lengthy matter relating to property settlement and spousal maintenance has been finalised in the Federal Circuit Court and information in the orders dated [in] January 2020 should also be considered when assessing child support.

3. In his objection to the original decision Mr Rouhani told the Child Support Agency he worked for a [service] business and had also gained casual employment in a [retail business].  The objections officer made a determination in relation to his income based on the average income of a full-time [service worker] and of a full-time [retail] worker according to data from the Australian Government website Job Outlook. This was because Mr Rouhani had provided limited information in relation to his income from employment.

4. Mr Rouhani argues that he was unable to complete his 2018–19 tax return as he could not afford to do so but now that it is available it should be used in the child support assessment.

5. The Tribunal notes in evidence an email from Mr Rouhani to the Child Support Agency dated 10 July 2019 relating to the original decision in which Mr Rouhani makes a similar argument.  In this email Mr Rouhani states his 2018–19 tax return “should be completed in the next few weeks”.  This would indicate he already had all the relevant financial information available, or close to being available, in order to submit his tax return.

6. The fact Mr Rouhani did not, for whatever reason, finalise his tax return in a timely fashion is not in itself a reasonable explanation for delaying his application to the Tribunal for review of the objection decision. If he felt this information was important in giving a more accurate picture of his income from employment, Mr Rouhani had other options available to him in the event he was unable to submit his actual tax return.  He could have, for example, provided a group certificate showing his income for that financial year or invoices for work he had undertaken as a [service worker] in 2018–19.  It is very likely he already had this information available as at 10 July 2019 he expected his tax return to be completed “in the next few weeks”.

7. Mr Rouhani also argues that a decision of the Federal Circuit Court providing relevant information was not handed down until [January] 2020.  This is evidence that was not available to the objections officer at the time the objection decision was made.  Even if there was new information in the court orders in relation to his income which Mr Rouhani considered important this does not explain why he then delayed a further [number] weeks from [that date in] January 2020 before applying for a review of the objection decision.

8. The Tribunal notes in evidence that on 9 October 2019 the objections officer contacted Mr Rouhani to discuss the outcome of the objection decision.  The record of that conversation indicates Mr Rouhani felt the objection decision was fairer than the original decision.  Mr Rouhani was nonetheless advised of his appeal rights to the Tribunal.

9. The notification of the objection decision provided by the Child Support Agency dated 14 October 2019 outlines what to do if Mr Rouhani 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.

10. The Tribunal is not satisfied with the reasons Mr Rouhani has provided for the lengthy delay in applying for a review of the objection decision.  The Tribunal finds that Mr Rouhani rested on his rights.

Merits of the application

1. Mr Rouhani is seeking a review of an objection decision which varied his adjusted taxable income for the purposes of child support to $48,211 per annum.

2. In his application for review to the Tribunal, Mr Rouhani submits that the Child Support Agency completely dismissed information relating to his situation including that he was a bankrupt, was unable to pay fines, did not have a driver’s licence and had a [medical] condition.  Mr Rouhani states these factors restricted his ability to earn the income as set by the Child Support Agency.  Mr Rouhani also argues that the recent decision of the Federal Circuit Court directly contradicts the assessment of the Child Support Agency in relation to his income.

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 the income, property and financial resources of Mr Rouhani.

4. In considering the merits of Mr Rouhani’s application, the Tribunal therefore conducted a careful review of the information used by the Child Support Agency in reaching its decision.

5. As previously noted the objections officer determined that because Mr Rouhani had provided limited information in relation to his financial circumstances he should be assessed in between the average income for a full-time [service] and a full-time [retail] worker. This average was in the vicinity of $54,500, however, as Mr Rouhani was employed on a casual basis the objections officer was satisfied his income was approximately $48,211 per annum. In making this decision the objections officer did take into account Mr Rouhani’s circumstances as a bankrupt as well as other matters he raised which might impact on his income earning ability including his medical history.

6. The difficulty in determining a parent’s income for the purposes of child support based on limited information or complex financial arrangements has been considered judicially on a number of occasions.  In such circumstances the courts have found that it is not necessary to undertake a forensic audit or major investigation into the financial circumstances of a parent.  The Tribunal finds the assumptions made by the Child Support Agency in relation to the income, property and financial resources available to Mr Rouhani to be reasonable.

7. The Tribunal also reviewed the orders of the Federal Circuit Court made [in] January 2020. While the Court makes no determination in relation to child support matters the Tribunal notes a number of comments about the income of Mr Rouhani.  In particular the Court states that “evidence adduced by the wife including recent advertisements do not suggest a capacity on the part of the husband to earn either $768 to $1,068 as submitted by the wife nor an income of $50,200 per annum or $77,500 as described by the Child Support Registrar, based on average full-time earnings disclosed in a government website”.

8. While the Tribunal is of the view the Child Support Agency made the objection decision based on all the relevant evidence available at the time there does now appear to be a disparity between the income set and what Mr Rouhani claims to be his actual income.

9. The Child Support Agency also considered the income, property and financial resources of Mrs [A] and determined there was no information available to indicate her income was higher than the $51,127 used in the assessment. Mr Rouhani did not raise any concerns about the assessment of Mrs [A]’s income in his application to the Tribunal and so this matter will not be considered further.

10. The Tribunal finds, however, that the application by Mr Rouhani may have some merit on the basis of his income, property and financial resources.

Potential prejudice to Mrs [A] and the wider public

1. Mrs [A] should ordinarily be able to rely on the child support assessment once the time for objection has passed.  Given Mr Rouhani is approximately 126 days late in making his application, it would be reasonable for Mrs [A] to consider the objection decision was final.  The Tribunal finds Mrs [A] would be disadvantaged if an extension of time to lodge an objection was granted.

2. 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 believes there would be 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 Rouhani 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.  The Tribunal is not satisfied Mr Rouhani’s circumstances are sufficiently different to that of other applicants in a similar position that an extension of time is warranted.  The Tribunal finds that it would not be fair to others to grant Mr Rouhani an extension of time.

CONCLUSION

1. Mr Rouhani has not provided a satisfactory explanation for the lengthy delay in applying for a review of the objection decision and the Tribunal has found he rested on his rights.  The reasons for the delay are an important factor in deciding whether or not to grant the application for an extension of time.  There would also be some prejudice to Mrs [A] should an extension of time be granted.  Although his application may have some merit, the Tribunal must weigh all the various factors which should be taken into account and concludes the merits are not so compelling as to outweigh the other considerations.

2. The Tribunal finds, on balance, that it would not be proper to grant an extension of time to seek review of the objection decision made on 9 October 2019 in the circumstances of this case.  Accordingly, the extension application is refused.

3. In making this decision the Tribunal notes that Mr Rouhani can lodge a new change of assessment application should he believe his financial circumstances have sufficiently changed such that this would warrant a departure from the administrative assessment.

Senior Member R Ellis