Simms and Child Support Registrar (Child support)

[2020] AATA 2130

Simms and Child Support Registrar (Child support) [2020] AATA 2130 (29 April 2020)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2020/BC018359

APPLICANT:  Mr Simms

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                29 April 2020

APPLICATION:

An extension application made on 7 February 2020 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 7 August 2019 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

CHILD SUPPORT – application for extension of time - no satisfactory explanation for the delay – poor prospect of success – prejudice to the other parent - extension of time refused

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.

STATEMENT OF REASONS

1. Mr Simms and [Ms A] are the parents of [the child] (born 2017).

2. In his application to the Tribunal, Mr Simms refers to the Department’s original decision of 20 May 2019 as the decision he seeks to have reviewed by the Tribunal. It is apparent from the papers provided by the Department that it is an objection decision of 7 August 2019 that he seeks to have reviewed by the Tribunal. The Tribunal will treat his application accordingly.

3. Mr Simms seeks an extension of time to apply for review of an objection decision made by the Department of Human Services – Child Support (the Department) on 7 August 2019. This decision allowed Mr Simms’s objection to a decision dated 20 May 2019, increasing his annual rate of child support for the period 1 March 2019 to 28 February 2021 by $1,800 in consideration of his contribution to childcare costs for [the child], and setting his adjusted taxable income (ATI) for the period 1 March 2019 to 28 February 2021 at $72,777.

4. The objection decision set aside the decision of 20 May 2019, and in substitution, decided that Mr Simms’ annual rate of child support for the period 6 March 2019 to 5 March 2022 should be reduced to $1,697 in consideration of his contribution to childcare costs for [the child], and varied his ATI for the period 6 March 2019 to 5 March 2022 to $59,500 per annum.

5. The Tribunal considered the matter on the papers on 2 April 2020.

Consideration

1. In reaching its decision, the Tribunal has considered documentation provided by the Department marked Exhibit 1

2. The legislation relevant to this application is contained in the Child Support (Registration and Collection) Act 1988 (the Registration Act) and the Administrative Appeals Tribunal Act 1975 (the AAT Act)

3. Paragraph 29(1)(d) of the AAT Act provides that an application for AAT first review of a decision must be made within 28 days of the person being given a copy of the decision.

4. The Department sent Mr Simms a letter dated 9 August 2019 notifying him of the objections officer’s decision of 7 August 2019. Regulation 11A of the Child Support (Assessment) Regulations 1989 provides that, unless the contrary is proved, service will be taken to have been affected after the time when the notice would, in the ordinary course of the post, have arrived at the place to which it was addressed. Mr Simms acknowledged at page 4 of his application that he received the Department’s letter dated 9 August 2019 notifying him of the objections officer’s decision of 7 August 2019 on 9 August 2019, and needed to have lodged an application for review of that decision with the AAT by early to mid-September 2019, which he did not.

5. Section 91 of the Registration Act provides that, if the period for applying for AAT first review has ended, a person may make application for AAT first review that includes a written application (the extension application) requesting the AAT to consider the application for AAT first review despite the ending of the period for applying for review. The extension application must state the reasons for the person’s failure to apply for the review within the period.

6. Section 82 of the Registration Act provides, relevantly, that a person may apply for an extension of time in which to lodge an application. The Registration Act does not set out criteria for consideration, but Department policy contained in the Child Support Guide provides useful guidelines at chapter 4.1.5. In summary, the Child Support Guide suggests it is ultimately a question as to whether the interests of justice favour the grant or refusal of the application in the particular circumstances. 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.

7. The established cases indicate that the starting point is the prima facie rule that proceedings commenced outside a statutory period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at [416]. However, the primary concern “is to do that which will enable justice to be done between the parties” (see Martinsen v Secretary, Department of Community Services [2004] FCA 297 per Spender J). Spender J quoted McHugh J in Gallo v Dawson (1990) 64 ALJR 459 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 consequence 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…

8. In line with Wilcox J’s survey of cases in Hunter Valley Developments P/L v Cohen (1984) 3 FCR 344, the Tribunal proposes to consider the matters identified in Gallo v Dawson under the following headings:

   ·the explanation for the delay;

   ·the merits of the substantial application;

   ·any prejudice to the other party, including any prejudice in defending the proceedings occasioned by the delay; and

   ·any public-interest considerations that might flow from a successful application, including “the unsettling of the people…or of established practices”.

Explanation for the delay

1. The reasons provided by Mr Simms in his application for his delay in applying to the AAT within the statutory time-limit were that he was not made aware of the decision until after the cut-off date – he was not informed by mail or email – and that when he contacted the Department, he was told that he was way too late, and even if he had applied for an extension, it would be denied after this amount of time.

2. The Tribunal’s review of the Department’s papers contained in Exhibit 1 indicates that this was not the case.

3. At page 4 of his application to the Tribunal, Mr Simms acknowledged he received the Department’s letter of 9 August 2019, notifying him of the objections officer’s decision of 7 August 2019, and his appeal rights.

4. A Department file note dated 14 October 2019 at page 236 of Exhibit 1 records a telephone conversation on that date between Mr Simms’s representative, his mother, [Mrs B], who was also his accountant, and a department officer named [C], in the course of which, [Mrs B] takes issue with respect to the assessment of Mr Simms’s income in the change of assessment application, and is advised, relevantly, by the department officer, [C], that Mr Simms would need to lodge an objection and request an extension of time, if he believed the change of assessment was incorrect.

5. Page 242 of the Department’s file in Exhibit 1, reflects an undated communication from [Mrs B], relevantly, setting out financial details of Mr Simms’s business, [Name] for the 2017/18 and 2018/19 financial years, and enclosing copies of supporting profit and loss statements and balance sheets.

6. A Department file note dated 24 October 2019 at page 248 of Exhibit 1 records a telephone conversation on that date between Mr Simms and a Department officer named [Ms D], in the course of which, Mr Simms makes reference to earlier correspondence provided by his representative, [Mrs B] regarding his income, noting that the objections officer had adjusted his income to $59,500, which he asserted was not correct, in response to which, the department officer advised him to lodge an appeal with the AAT and provided him with the AAT’s contact details for that purpose.

7. At pages 249 to 251 of Exhibit 1, a Department file note dated 7 November 2019 records a further telephone conversation between Mr Simms’s representative, [Mrs B], and a Department officer named [E], in the course of which, [Mrs B] refers to the original Department decision setting Mr Simms’ income at $72,777, his subsequent successful objection to that decision and the varying of his income to $59,500 by the objections officer in the decision of 7 August 2019, and the department officer’s advice to [Mrs B] that she should contact the AAT to have the decision reviewed, the contact details for which were set out in a letter sent to Mr Simms on 9 August 2019.

8. A further Department file note, dated 4 February 2020 at page 292 of Exhibit 1, records a telephone call on that date to Mr Simms by a department officer named [Mr F] in the course of which officer [Mr F] discusses pending care arrangements and Mr Simms’ child support arrears. The file note records Mr Simms becoming abusive and terminating the call, and concludes with the department officer noting that he did not get a chance to discuss the correspondence Mr Simms had sent in regarding his profit and loss statement.

9. No further relevant communication from Mr Simms or his mother, [Mrs B], regarding his appeal rights appears in the Department’s papers, Exhibit 1, until 7 February 2020, when Mr Simms submitted his application for review.

10. The Tribunal finds that Mr Simms was notified of the objections officer’s decision of 7 August 2019 in the Department’s letter of 9 August 2019, which Mr Simms acknowledged he received on that date, that he has failed to provide an explanation for his delay in applying to the AAT for review of the objections officer’s decision within the statutory time limit, and that he has rested on his rights.

Merits of the objection

1. The Department’s papers in Exhibit 1 record a telephone conversation on 23 July 2019 between the Department’s objections officer, [Mr G], and Mr Simms, in the course of which Mr Simms provided the objections officer with details of his weekly expenses in the context of the objections process, following the parents’ objections to the original Department decision of 20 May 2019. The objections officer contacted Mr Simms again on 7 August 2019, recorded in a Department file note at pages 177 and 178 of Exhibit 1, in which the objections officer discussed the expenses Mr Simms had provided in the course of the telephone conversation on 23 July 2019, the basis upon which the objections officer determined Mr Simms’s ATI at $59,500 in the objection decision. It does not appear from the Department file note that Mr Simms disputed the accuracy of those expenses in the course of the telephone conversation with the objections officer.

2. The Tribunal considers Mr Simms’s prospects of achieving a significantly different outcome in the substantial application, if he were to be granted an extension of time to appeal the objections officer’s decision, would be poor, and that the interests of justice would not be best served by granting an extension of time.

Prejudice to [Ms A]

1. [Ms A] is entitled to rely on the decision made by the objections officer on 7 August 2019, and expect certainty and finality. The Tribunal considers that the granting of an extension of time for Mr Simms to apply to the AAT for review of the objection decision would prejudice [Ms A], and not be in the best interests of justice.

Public interest considerations

1. Parliament has seen fit to set a 28-day time limit for the lodgement of objections so parents (and the Department) can act with certainty as to the outcome when the objection period has elapsed. The public has an interest in reviews of decisions made by the Department being performed in a timely fashion and in a manner that ensures all applicants are treated fairly and equally. Accordingly, an extension of time for objection is not to be automatically granted.

2. The Tribunal has found that Mr Simms does not have a reasonable excuse for his delay in applying to the AAT for review of the objection decision of 7 August 2019, that he has rested on his rights, and his prospects of success in the substantial application are poor. The Tribunal concludes that the interests of justice are best served by refusing to grant an extension of time.

3. The Tribunal notes that it is open to Mr Simms to apply to the Department for a change of assessment if he be so advised.