Rulad and Child Support Registrar (Child support)

[2018] AATA 4648

Rulad and Child Support Registrar (Child support) [2018] AATA 4648 (27 November 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/AC015068

APPLICANT:  Mr Rulad

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member Y Webb

DECISION DATE:  27 November 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS
CHILD SUPPORT – refusal of an extension of time to object to a departure determination – adequate reasons for the delay not given – some merit but not compelling – extension of time correctly refused – 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 review is about whether Mr Rulad should be granted an extension of time to object to a change of assessment decision made by the Department of Human Services (“Child Support Agency”).

2. Mr Rulad and [Ms A] are the parents of a child now 18 years old (“the child”) and although the child support case for the child has recently ended, Mr Rulad has significant arrears. At all relevant times for child support purposes the child was in the 100% care of [Ms A].

3. The background to this review is that on 25 May 2018 Mr Rulad applied for a change to the assessment on the grounds of reasons 3, 4 and 8A.

4. He contended in relation to reason 3 that there had not been any mutual intention by him and [Ms A] for the child to attend a private technical college in relation to his schooling or to attend any other private school.

5. In relation to reason 4, Mr Rulad contended that the child was earning income from employment.

6. In relation to reason 8A Mr Rulad contended that he was no longer earning $52,000 per year (a figure which had been fixed – until a terminating event occurred for the child – in a previous change of assessment decision in June 2016 and retained in a further change of assessment decision on 20 March 2017).

7. On 14 June 2018 a decision maker from the Child Support Agency decided that reasons 4 and 8A had not been established but that reason 3 had been established.

8. By letter dated 14 June 2018 Mr Rulad was informed of that decision.

9. Mr Rulad’s representative lodged an objection to the decision with an extension of time request on 14 August 2018.

10. On 6 September 2018 an objections officer of the Child Support Agency refused Mr Rulad an extension of time.

11. On 20 September 2018 Mr Rulad requested review by the Administrative Appeals Tribunal (“the Tribunal”) of the decision to refuse an extension of time.

12. He attended the hearing on 27 November 2018 in person and gave evidence on affirmation.

ISSUES

1. The issues which arise in this case are whether Mr Rulad’s objection was lodged outside of the statutory time frame; and if so whether he should be granted an extension of time to object to the decision made on 14 June 2018.

CONSIDERATION

1. The legislation relevant to this review is the Child Support (Registration and Collection) Act 1988 (the Act).

2. The relevant sections in relation to the Act are section 81 (Time limits on lodging objections), section 82 (Applications for extension of time) and section 83 (Consideration of applications for extensions of time for lodging objections). 

3. Section 81 requires that a person must lodge an objection to a decision within 28 days of notice of the decision.  Section 82 of the Act provides that a person may request an extension of time to lodge an objection if the statutory time frame has ended.  The application must state fully and in detail the grounds of the application, including the circumstances and the reasons for the failure of the person to lodge as required by section 81 (that is, within 28 days).

4. The Registrar must consider an application for an extension of time and either grant or refuse that application.  In circumstances where a person’s application is refused, the person may apply to the Tribunal for a review of that decision (section 89 of the Act).

5. In this case, the Child Support Agency refused the application and provided reasons.  In brief summary, the reasons for refusing an extension of time were that although Mr Rulad’s objection on face value had some merit he had no reasonable reason for the delay.  The objections officer also decided that while there was minimal prejudice to [Ms A] it would be prejudicial to the general public to grant an extension of time.

Should Mr Rulad be granted an extension of time to object?

1. In considering whether Mr Rulad should be granted an extension of time, the Tribunal had regard to the principles detailed in the decision of Hunter Valley Developments Pty Ltd v Cohen[1] and subsequent cases.[2] 

   [1] [1984] FCA 176 (Hunter Valley).

   [2] Including Mulheron and Australian Telecommunications Corporation [1991] AATA 673.

2. It is clear from Hunter Valley at [18] that the prescribed period of 28 days is “not to be ignored”[3] and that the prima facie rule is that in normal circumstances, proceedings commenced outside that period will not be entertained.[4]  In short, Wilcox J in Hunter Valley at [18] stated that it would not be appropriate to “grant the application unless positively satisfied that it is proper to do so”. The relevant case law establishes that the decision maker must consider and balance the following factors:

   ·       the explanation for the delay and whether the explanation is acceptable and whether it is fair and equitable in the circumstances to grant the extension;

   ·       action taken by the applicant to make the respondent aware of dissatisfaction with the decision;

   ·       any prejudice to other parties to the review arising out of the delay;

   ·       whether issues arise of public interest; and

   ·       the merits of the case.

   [3] Ralkon v Aboriginal Development Commission [1982] FCA 153.

   [4] Lucic v Nolan (1982) 45 ALR 411.

Was there an acceptable explanation for the delay?

1. Mr Rulad agreed with frankness that he received the letter from the Child Support Agency dated 14 June 2018 informing him of the change of assessment decision.  He did not dispute that he received it within 28 days.  He stated that his recollection is that he received it electronically (on 14 June 2018) and also through the post.  The Tribunal finds that Mr Rulad received the decision of 14 June 2018 including by post within a few days of that decision being made.

2. Mr Rulad stated that he has found child support decisions very difficult to understand.  He reads them but he can’t really work out what the implications are.  He thought of engaging a lawyer to assist him but they are very expensive.  He had become aware of an organisation called “My Child Support” and engaged them to represent him.  He sent the decision via email to this organisation on 25 June 2018 but he had a lot of problems making contact with the organisation.  Mr Rulad stated that he was aware of the time frame to lodge an objection and he brought the time frame to the organisation’s attention via email.  He became concerned when he received an email from My Child Support on 7 August 2018 asking him to forward a copy of the decision of 14 June 2018 knowing that he had already sent a copy to them in June.  Eventually on 14 August 2018 the organisation lodged the objection with a request for an extension of time.

3. The Tribunal found Mr Rulad to be genuine and credible and it has no hesitation in accepting as truthful the statements which he made at the hearing. Mr Rulad stated that he doesn’t know why My Child Support took so long to lodge the objection.  They said that their internet was not working but he also found that they could not be reached by phone when he tried to contact them. 

4. Mr Rulad showed the Tribunal the emails between him and My Child Support on his phone and the Tribunal accepts that Mr Rulad provided the decision of 14 June 2018 to the organisation on 25 June 2018.  However, there is a level of risk in relying on an external organisation and unfortunately for Mr Rulad his decision to engage that organisation did not work out well for him. 

5. Mr Rulad told the Tribunal that he had engaged My Child Support to also assist him with his application for a change to the assessment.  He had provided financial information which was forwarded to the Child Support Agency as part of the application process.  As the reasons for his application were virtually the same as the reasons for his objection, there was little, if any, additional documentation which needed to accompany his objection and that which was sent was easily accessible to Mr Rulad.

6. While the Tribunal accepts that Mr Rulad considered the Child Support Agency decisions too difficult to follow, he was able to clearly express what he didn’t agree with regarding the decision of 14 June 2018.  It is unfortunate that Mr Rulad did not decide to forward his objection without the assistance of the external organisation but that didn’t occur.  While the Tribunal acknowledges that Mr Rulad was attempting to facilitate the lodgement of his objection within time, Mr Rulad’s reasons for lodging his objection late are not persuasive. 

Action taken by the applicant to make the respondent aware of dissatisfaction with the decision

1. There is no evidence that Mr Rulad disputed the change of assessment decision at the time that it was made or shortly thereafter.

2. The Child Support Agency papers provided show that Mr Rulad telephoned the Child Support Agency on 14 June 2018.  He was returning a call from the Agency.  However, the officer advised Mr Rulad that she would need to organise for the decision maker to return his call as the officer was currently unavailable.  There is no further record of any contact between Mr Rulad and the Child Support Agency until 6 September 2018 when Mr Rulad returned a call from the Child Support Agency to discuss the request for an extension of time and his objection.

3. The Tribunal is satisfied that until My Child Support forwarded the objection on 14 August 2018 the Child Support Agency was unaware that Mr Rulad was dissatisfied with the decision of 14 June 2018. 

Prejudice to the other party to the review arising out of the delay

1. The other party to the review is [Ms A].  While it is not likely that the passage of time would hinder her ability to put forward her case should there be a review of the substantive decision, the result of a successful objection may result in a retrospective change to the assessment.  In light of the significant arrears owed by Mr Rulad it is unlikely that [Ms A] would have been overpaid child support.  However, a delay in lodging an objection has the potential to cause uncertainty to [Ms A] and to that extent may cause some prejudice to her arising out of the delay.

Public interest considerations

1. Time frames for initiating legal proceedings serve a useful public purpose.  This principle is particularly relevant and important in the child support jurisdiction.  Very often parents affected by Child Support Agency decisions have limited financial resources and make financial decisions based on the decisions made by the Child Support Agency.  This is the case whether the parent is a payee or a payer.  When those decisions are overturned there can be significant financial repercussions for the parents.  Lengthy delays in decision making can result in significant hardship especially where debts are raised.  In turn, this can have a significant effect, including financial repercussions on the child or children subject to the assessment.  There are therefore sound public policy reasons for imposing a time limit on objections to decisions.  A time limit reduces uncertainty in relation to the financial circumstances of the parties. In addition, the public has an expectation that unless there is a very good reason, time frames will generally be observed.  This factor weighs against an extension of time in Mr Rulad’s case.

Merits of the case

1. In considering the merits of the case, it is not appropriate for the Tribunal to form a conclusive view in extension of time proceedings.  Rather, the Tribunal needs to consider whether Mr Rulad has an arguable case if the evidence he provides is accepted.

2. Mr Rulad argued that his income from self-employment has significantly decreased especially in the last couple of years and that it is unfair and inaccurate to determine that his income is $52,000 a year.  He is currently only working an average of three days a week.  There has been a lack of work in his area of expertise and in addition, there is little work available interstate and in country areas which previously was available and was well remunerated.  His income has been affected by these and other factors. 

3. In addition Mr Rulad asserted that he had not signed enrolment forms for the child to attend a private school. 

4. The Tribunal finds that it is possible there is some merit to Mr Rulad’s assertions regarding his income although a more detailed analysis of the financial state of his business would be needed before a determination was made whether the current decision regarding his income is appropriate or not.  In relation to the decision that reason 3 had been established and that Mr Rulad’s child support liability should be increased to assist with the private school fees, this has been established in a number of change of assessment decisions since 2015. In relation to Mr Rulad contentions regarding the child’s income, the available evidence does not indicate that the child’s earnings are significant enough to affect the child support liability.

5. On balance, the Tribunal finds that there may be some merit in Mr Rulad’s objection but his case would not appear to be particularly compelling.

Conclusion

1. The Tribunal acknowledges that Mr Rulad holds a genuine view that he has been unfairly financially disadvantaged by the change of assessment decision of 14 June 2018.

2. In considering his application for an extension of time to object to the change of assessment decision, and in weighing all of the relevant factors, the Tribunal is satisfied that Mr Rulad’s reasons for the delay are lacking in substance; he took no action to express dissatisfaction about the decision until the time to object had passed and there is limited merit to his objection.  In addition, there is some (albeit limited) prejudice to [Ms A] and some policy reasons militating against granting an extension of time.

3. Mr Rulad’s application for an extension of time to object to the decision on 14 June 2018 is refused.

DECISION

The decision under review is affirmed.