Sedgemore and Child Support Registrar (Child support)

[2023] AATA 4010

Sedgemore and Child Support Registrar (Child support) [2023] AATA 4010 (3 October 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/BC026119

APPLICANT:  Mr Sedgemore

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  03 October 2023

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the extension application should be granted.

CATCHWORDS

CHILD SUPPORT – refusal to grant an extension of time to object – departure determination – reasonable explanation for delay – some merit – no significant prejudice to the other parent due to delay – extension of time granted – decision under review set aside and substituted

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. Mr Sedgemore and Ms [A] are the parents of [Child 1] (born August 2021).  There has been a child support assessment in place since 11 March 2022 and Mr Sedgemore is the parent liable to pay child support under the assessment.

2. On 16 July 2022 [Ms A] applied to Services Australia – Child Support (Child Support) for a change to the assessment on the basis of a parent’s income, property and financial resources (the ground commonly known as Reason 8A).

3. On 13 October 2022 Child Support made the decision to change the assessment so that for the period from 15 July 2022 to 14 July 2024 the adjusted taxable income of Mr Sedgemore is set at $80,000 (the original decision).

4. On 7 February 2023 Mr Sedgemore objected to this decision and as his objection was not made within the prescribed period he applied to Child Support for an extension of time on the same date.

5. On 21 March 2023 Child Support refused the request for an extension of time and on 19 April 2023 Mr Sedgemore sought a review of the refusal decision by the Administrative Appeals Tribunal (the Tribunal).

6. The Tribunal conducted a hearing into the application on 3 October 2023.  Mr Sedgemore was represented by [Mr B].  Mr Sedgemore and [Mr B] gave evidence on affirmation by Microsoft Teams audio.  Child Support provided the Tribunal and the parties with papers relevant to the matter (355 pages).  Prior to the hearing the Tribunal received additional evidence from Mr Sedgemore and a copy was distributed to the parties (A1–A3).

ISSUE

1. 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).

2. The issue which arises in this case is whether or not to grant Mr Sedgemore’s request for an extension of time to lodge an objection to the original decision.

CONSIDERATION

1. Part VII of the Act is about the procedures related to objections made for certain decisions. Section 81 is about time limits on lodging objections and provides that a person has 28 days in which to lodge an objection after a notice of the decision is served on them. Section 82 provides for a person to apply for an extension of time to lodge an objection after the 28‑day period has elapsed. Section 83 requires Child Support to either grant or refuse an extension of time application and serve notice in writing of the decision.

2. In the event Child Support refuses the extension of time application, the person applying may then apply to the Tribunal for review (item 1 of the table in subsection 89(1) of the Act).

3. The Tribunal finds Mr Sedgemore was advised about the outcome of the original decision by post in a letter from Child Support dated 14 October 2022.  Under provisions of the Acts Interpretation Act 1901 and the Evidence Act 1995, he was therefore taken to be served with written notice of this decision by 31 October 2022.  Given Mr Sedgemore lodged his objection more than 28 days after he was served with notice, the Tribunal is satisfied an extension of time was necessary.

4. The Tribunal is required to consider whether or not it is reasonable or proper for an extension of time to be granted to Mr Sedgemore to lodge his objection to the decision made on 13 October 2022.  From other decisions, which provide guidance to the Tribunal on this matter, it is clear that generally the statutory time limit of 28 days is to be enforced unless there are acceptable reasons for departing from this prescribed timeframe.

5. A consideration of other relevant authorities establishes that when considering matters relating to an extension of time, the Tribunal should take into account 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 Sedgemore’s objection and application for an extension of time on 7 February 2023 in relation to the decision of 13 October 2022, of which he was notified by post in a letter dated 14 October 2022, is approximately 71 days out of time.

2. Mr Sedgemore told the Tribunal that he was unable to submit his objection sooner because he was going through court proceedings related to a property settlement with [Ms A] at the time and the separation had been very difficult.  Mr Sedgemore said he was under considerable stress as well as struggling with mental health issues.  Mr Sedgemore added that he had found it difficult to manage too much at once.

3. The Tribunal notes in evidence from Child Support a protection order issued by the Magistrates’ Court on 25 January 2023.  Mr Sedgemore is named as the aggrieved person and [Ms A] as the respondent.

4. Mr Sedgemore said it was also frustrating dealing with Child Support particularly because he had two separate cases in place involving different children and this made him very anxious.  Mr Sedgemore informed the Tribunal he tried to submit an earlier objection related to both cases but for some reason it had been withdrawn.  Mr Sedgemore said he thought the withdrawal was in relation to a care matter which he had also been trying to manage.

5. The Tribunal notes in evidence from Child Support that Mr Sedgemore initially lodged an objection received by Child Support on 14 December 2022.  In this written objection Mr Sedgemore states, “I would like to request an extension relating to my case … for Ms [C] and Ms [A] in order to provide further evidence”.  The written objection refers to his financial circumstances as well as details relevant to both cases.

6. The Tribunal further notes that during a conversation with a child support officer on 1 February 2023 in relation to this objection Mr Sedgemore confirms the objection related to both cases.  In a further conversation on 6 February 2023 between a child support officer and a person acting as a representative for Mr Sedgemore the representative is advised to submit further extensions of time for both change of assessment matters.  The representative also states that an objection relating to a care matter will be withdrawn.

7. Although Mr Sedgemore first lodged an objection and request for an extension of time on 14 December 2022 in relation to the original decision this request is nonetheless out of time by approximately 16 days.  The Tribunal is satisfied an extension of time is still required.

8. The Tribunal finds that Mr Sedgemore has provided a reasonable explanation for the delay in applying for a review of the original decision.

Merits of the application

1. The change of assessment decision made by Child Support on 13 October 2022 varies Mr Sedgemore’s adjusted taxable income to $80,000 for the period from 15 July 2022 to 14 July 2024.  According to figures provided by Child Support the annual rate of child support payable by Mr Sedgemore increased from $459 to $6,291 as a result of this decision.

2. In making any determination to depart from an administrative assessment, Child Support must first find a ground for departure. These grounds are listed in the Assessment Act and in this case it was on the basis of a parent’s income, property and financial resources.

3. The Tribunal notes that, in reaching a decision about the financial resources available to Mr Sedgemore, the original decision maker relied on information derived from bank statements.

4. Mr Sedgemore told the Tribunal that he was self-employed and ran a  [business] called [Company 1].  Mr Sedgemore said the business was operated under a trust structure.  Mr Sedgemore said the bank statements did not provide an accurate picture and he believed his income for the purposes of child support should instead be based on his individual tax return for 2022–23 and the tax return for the business for the same financial year.  In his written submission to the Tribunal Mr Sedgemore said his individual tax return showed an income of $32,679 in 2022–23 while the business generated total revenue of $62,207.  Mr Sedgemore argued his income from the business was clearly not $80,000.

5. The test of merit has alternatively been expressed as whether, were it to proceed, the application for review “would have good prospects of success” (Smith and Commissioner of Patents [2012] AATA 60 at [29]–[31]).

6. Should Mr Sedgemore provide the relevant financial documents to support his argument an alternate decision could be made in relation to his income, property and financial resources.  The Tribunal is satisfied there would be some merit in reviewing the decision on this basis.

Potential prejudice to [Ms A] and the wider public

1. The Tribunal must also consider the potential prejudice to [Ms A] and the wider public.  [Ms A] should ordinarily be able to rely on the child support assessment once the period for objection has passed.  The Tribunal considers that [Ms A] would not be significantly disadvantaged should an extension of time to lodge an objection be granted in this case as she would be able to participate in the review process.

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.  The Tribunal believes there would be limited 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 Sedgemore and other persons in similar positions

1. Child Support notifies parties that they can object to decisions and 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 has found Mr Sedgemore has valid reasons for the delay in submitting his objection and there may be some merit to his objection.  It is reasonable to expect that any other person’s request for an extension of time in such circumstances would be granted.  The Tribunal finds that it would not be unfair to others to grant Mr Sedgemore an extension of time.

CONCLUSION

1. Mr Sedgemore has provided a satisfactory explanation for the delay in applying for review of the original decision.  The Tribunal also found his application may have some merit which also weighs in favour of the granting of an extension of time.  The Tribunal found there is unlikely to be prejudice to [Ms A] or the general public should an extension of time be granted, nor would it be unfair to do so.

2. Having carefully considered the various factors which must be taken into account, the Tribunal finds it would be appropriate in this case for the extension of time in which to lodge an objection to be granted.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the extension application should be granted.