Sassaman and Child Support Registrar (Child support)

[2021] AATA 3352

Sassaman and Child Support Registrar (Child support) [2021] AATA 3352 (20 July 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/PC021587

APPLICANT:  Mr Sassaman

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member C Breheny

DECISION DATE:  20 July 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – refusal to grant an extension of time to object - no satisfactory explanation for the delay - little merit - weighing all factors the extension of time was 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 omitted 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. Mr Sassaman and [Ms A] are the separated parents of [Child 1] and [Child 2]. On 13 May 2019 [Ms A] contacted the (then) Department of Human Services – Child Support (Child Support) – now known as Services Australia – Child Support (Child Support) and applied for assessment and collection of child support from Mr Sassaman. On 31 July 2019 Child Support accepted [Ms A’s] application.

2. On 7 December 2020 Mr Sassaman lodged an objection to the decision of 31 July 2019 stating that [Ms A’s] application should not have been accepted, as it was incorrectly made. He also applied for an extension of time to lodge the objection and on 11 March 2021 a decision was made to refuse Mr Sassaman an extension of time within which to lodge his objection.

3. On 26 May 2021, Mr Sassaman applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal for an independent review of Child Support’s decision. A hearing into Mr Sassaman’s application for review was held on 20 July 2021. Mr Sassaman attended the hearing by conference telephone and gave evidence on affirmation. A representative of the Child Support Registrar (the Registrar) did not attend the hearing.

4. I had before me the statement and documents provided by Child Support pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975, received on 22 June 2021 and numbered 1–253.

CONSIDERATION

1. The law relating to a person’s right to seek review of a decision of the Registrar is contained in the Child Support (Registration and Collection) Act1988 (the Act). Section 81 of the Act requires that a person must lodge an objection to a decision of the Registrar within 28 days after a notice of the decision is served on them.

2. Where the period for lodgement has ended, the person may send the objection to the Registrar along with an application requesting that the objection be treated as if it was duly lodged, that is, that it was lodged within the allowed time (section 82 of the Act). Section 83 of the Act then provides that the Registrar must consider the application for 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.

3. In this case Child Support sent Mr Sassaman a letter dated 31 July 2019, notifying him that [Ms A’s] application for a child support assessment had been accepted. The notice included the child support assessment for the period 13 May 2019 to 12 August 2020 and advised that Mr Sassaman could ask for a review of the decision within 28 days, from the date he received the letter (folios 95–100).

4. Mr Sassaman thus needed to lodge an objection to the decision with Child Support by about late August/early September 2019, which he did not. He lodged an objection on 7 December 2020, about 15 months later. This means Mr Sassaman requires the extension of time, which he now seeks in order for his objection to be accepted.

Should an extension of time be granted?

1. The Act does not set out criteria for consideration, but the Child Support Guide (the Guide) provides some guidelines at Chapter 4.1.5. Factors to be considered are the reason for the delay, the merits of the objection, whether the person has rested on their rights and any potential prejudice to the other party or the public. In summary, the Guide suggests that it is ultimately a question as to whether the interests of justice favour the grant or refusal of the application in the particular circumstances.

2. The Guide is not part of the legislation, and so I am not bound by it. However, I consider that the factors identified above are relevant and useful and I will discuss how they apply in Mr Sassaman’s case.

3. I also 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 176. 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. The Court also said that there must be an acceptable explanation for the delay and that it must be fair and equitable in the circumstances to extend time.

4. In Re Mulheron and Australian Telecommunications Corporation [1991] AATA 673 (Mulheron), O’Connor J outlined some principles to be applied in considering an application for an extension of time:

   (i)    prima facie proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so;

   (ii)   it is relevant whether the applicant rested on his [or her] rights or took action to make the decision maker aware that the decision was being contested;

   (iii)   any prejudice to the respondent that would be caused by granting the extension of time is relevant;

   (iv)   any wider prejudice to the general public in terms of disruption to established practice is relevant;

   (v)   the merits of the substantial application are relevant; and

   (vi)   fairness of granting an extension of time as between the applicant and other persons in like position is relevant.

5. More recently it has been noted that the primary concern “is to do that which will enable justice to be done between the parties” (see Martinsen v Secretary, Department of Family & Community Services [2004] FCA 297 per Spender J). Spender J quoted McHugh J in Gallo v Dawson [1990] HCA 30 as follows:

   In order to determine whether the rules [imposing time limits] will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time ...

   When the application is for an extension of time …it is always necessary to consider the prospects of the applicant succeeding in the appeal …

6. Considering the above authorities in relation to the determination of extension of time matters, I am of the view that in deciding whether or not to grant an extension of time, I should consider and balance a number of factors and principles including those raised by O’Connor J in Mulheron.

The reasons for the delay

1. As stated above, departmental records show that Mr Sassaman was advised by letter dated 31 July 2019 that [Ms A’s] application had been accepted with effect from 13 May 2019. Departmental records indicate that the notice was sent to Mr Sassaman’s online account and had been printed (folio 101). Mr Sassaman commenced making regular child support payments from 8 August 2019 and as of 13 August 2020 his payments were up to date (folios 250/251). The initial child support assessment was based on a provisional income of $50,076 for Mr Sassaman, resulting in a child support liability of $380.67 per month (folio 98).

2. From 13 August 2020 child support was calculated on Mr Sassaman’s 2019/20 adjusted taxable income of $113,835 and this increased Mr Sassaman’s liability to $1,333.83 per month or about $613 per fortnight. On 30 October 2020 Mr Sassaman contacted Child Support to lodge an income estimate, but this was refused. Mr Sassaman also noted that [Ms A] lodged her initial application from [Country 1], but she actually resides in [Country 2] (folio 102).

3. On 3 November 2020 Mr Sassaman wrote to Child Support submitting that the recent assessment ($611 per fortnight) was unfair and was putting him in financial hardship (folio 104). He contended that [Ms A] has been residing in [Country 2] since November 2018, yet “made a claim via CSA [in Country 1]”. He said he raised this with Child Support last year but was told it did not matter where the application came from.

4. On 7 December 2020 Mr Sassaman lodged his objection stating that [Ms A] made her application for a child support assessment from [Country 1] even though she resides in [Country 2], and this was “morally and ethically wrong, inappropriate and misleading” (folio 159).

5. Mr Sassaman told me that he recalls receiving a phone call from Child Support regarding [Ms A’s] application. He asked where the application came from and was told that it did not matter where it came from. Mr Sassaman said that he was also told that he could not appeal the decision to accept [Ms A’s] application.

6. Mr Sassaman said that the customer service officer was “quite rude” and told him that he “needed to pay” child support. He did not have the energy to challenge the decision at the time, so he “sort of went with it”.

7. Child Support records show that Mr Sassaman was contacted on 30 May 2019 prior to the decision being made. The file note indicates that his own circumstances and income were discussed and that he queried whether “the applicant may be in [Country 2] with the children living there”. He also asked what the procedure was in this case.

8. On 29 July 2019 Mr Sassaman called to find out whether the application had been finalised and he was advised that the matter was “still in progress” (folio 93). There is no further contact from Mr Sassaman until 30 October 2020 when he discussed his income estimate election and raised [Ms A’s] residency again.

9. I have considered the evidence before me. There is no evidence that Mr Sassaman was told that he could not ask for a review of the decision to accept [Ms A’s] application. He raised the issue of her residency once prior to the decision being made and there is no evidence that he contacted Child Support again after the decision was made until late in 2020.

10. Mr Sassaman acknowledged that there is nothing to support his claim that he was told that he could not ask for a review of the decision.

11. Overall, I am not persuaded that Mr Sassaman provided a reasonable explanation for the lengthy delay in objecting. It appears that he did receive the original notice, advising him of the outcome of [Ms A’s] application and how his child support liability was calculated. He commenced paying child support regularly from 8 August 2019. The notice did advise him of his review rights, and he could have acted at that point, but it seems that he accepted the decision at that time. It appears that he only became concerned about the decision to accept [Ms A’s] application once his child support liability increased significantly.

12. I therefore find that Mr Sassaman has not provided an acceptable excuse for the delay in objecting and that he did rest on his rights.

Merits of the substantive application

1. Mr Sassaman’s objection is essentially stating that [Ms A’s] application for a child support assessment should not have been accepted because it was “improperly made”.

2. Mr Sassaman told me that he is aware that both [Country 1] and [Country 2] are reciprocating jurisdictions for child support purposes and thus there would be no practical impact on his child support liability if the application had been lodged from [Country 2]. He said that the decision to accept [Ms A’s] application was “morally and ethically wrong” because she lodged her application from the “wrong country”.

3. [Ms A’s] application was submitted by the [Enforcement Authority 1] on 13 April 2019 (folio 20). [Enforcement Authority 1] is the relevant authority in [Country 1] for the purposes of submitting child support applications to Australia pursuant to section 29B of the Child Support (Assessment) Act 1989 (the Assessment Act). Section 30 of the Assessment Act states that the Registrar must accept the application, if satisfied that it was properly made.

4. Child Support’s policy in relation to deciding whether to accept or refuse an application is contained in the Guide at 2.1.5. It relevantly states that:

   …

   Where one parent is an overseas resident, the application is properly made if:

   ·the parent who is likely to be required to pay child support ….), or

   ·the application is made by a person who is resident in a reciprocating jurisdiction and who is likely to receive child support; the application is made by the person and forwarded to the Registrar by the overseas authority of that reciprocating jurisdiction; OR the application is made by the overseas authority on behalf of the person (section 29B).

The Registrar is not required to conduct any inquiries or investigations when deciding whether          an application complies with sections 24, 25, 25A and 27. The Registrar can act on the basis of      the application and any documents which accompanied it (section 29(1)).    

[emphasis added]

…

1. There is no dispute that [Ms A’s] application was made by the relevant [Country 1] authority. The application included [Ms A’s] letter to [Enforcement Authority 1] dated 10 December 2018 (folio 70) in which she notes that she was “currently in [Country 2] for a period of 3-6 months” and that “this was not a permanent move as yet”.

2. A Child Support file note dated 31 May 2019 (folio 88) indicates that [Ms A’s] residency would need to be investigated and she may have to lodge a new application if she was not a habitual resident of [Country 1]. Child Support then spoke to [Ms A] on 13 June 2019 about her residency (folio 92) and she told them that she was “going back and forth between [Country 2]” and that she “may choose to live there permanently in the future”. Thus, it appears that Child Support did follow-up on Mr Sassaman’s information that [Ms A] may reside in [Country 2].

3. I note that [Enforcement Authority 1] can only act on behalf of [Country 1] residents. Whilst [Ms A’s] application contained an order of [Court 1] dated 8 November 2018, giving her permission “to relocate with the children permanently to [Country 2]”, there is no evidence that [Ms A] was living permanently in [Country 2] at the time of her application, as Mr Sassaman contends.

4. Mr Sassaman provided [social media] pages relating to a company called “[business name]” allegedly belonging to [Ms A] and her partner, but these pages are dated December 2019 (folios 113–117). He also provided [social media] pages in relation to [products] apparently made by [Ms A], but these relate to 2020 (folios 119–134).

5. Based on the evidence before me there appears to be very little, if any, supporting evidence that [Ms A’s] application for a child support assessment was not properly made. This means that there is very little or no merit in Mr Sassaman’s substantive application.

Prejudice to the other party

1. [Ms A] has not been joined as a party to this review and has not had the opportunity to set out what prejudice she may face if the extension of time is granted. If Mr Sassaman were to be successful in his objection, it is possible that there could be a change to the child support assessment. This can be viewed as a potential outcome prejudicial to [Ms A’s] interests. If such a change were to be the result of the correct or preferable decision being made under the child support law, however, I do not see it as being material prejudice. I do not consider that prejudice to the other parent is an influential factor in my consideration of the exercise of the discretion to extend time in this case.

Public interest considerations

1. Parliament has seen fit to set a time limit for the lodgement of objections so that parents (and Child Support) can act with certainty as to the outcome when the objection period has elapsed. Aside from this general principle, there is no other apparent prejudice to the public were Mr Sassaman to be granted an extension of time to object to the decision.

2. Whilst I can identify no factors in this matter that make potential prejudice to the general community a material consideration, I do, however, place weight on considerations of fairness between Mr Sassaman and other persons in a like position by giving due regard to the existence of a statutory time limit for lodging objections.

Conclusion

1. In this matter, I am not persuaded that there is sufficient justification to exercise the discretion to extend time. I am not satisfied that Mr Sassaman provided a reasonable explanation for the delay in objecting and there is very little if any merit in his substantive objection. In my view the absence of a reasonable explanation and the absence of merit weighs against exercising the discretion to extend time. Consequently, I have not identified any factors, which persuade me that the ordinary time limit should not apply to Mr Sassaman’s case, and I conclude that the interests of justice are best served by refusing to grant an extension of time.

2. For these reasons I have therefore decided to affirm the decision under review.

DECISION

The decision under review is affirmed.