Singh and Child Support Registrar (Child support)

[2018] AATA 3809

Singh and Child Support Registrar (Child support) [2018] AATA 3809 (7 August 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/SC014352

APPLICANT:  Mr Singh

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Senior Member B Harvey

DECISION DATE:  07 August 2018

DIRECTION TO ALTER DECISION OR REASONS FOR DECISION:

Pursuant to section 43AA of the Administrative Appeals Tribunal Act 1975, the following alteration is to be made to the written statement of reasons for the decision:

The first sentence in paragraph 3 of the written statement of reasons for the decision is altered to read:

The Registrar made the decision on the objection on 15 November 2017 and served notice of the decision on Mr Singh electronically on the same day.

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2018/SC014352

APPLICANT:  Mr Singh

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:               7 August 2018

APPLICATION:

An extension application made on 18 June 2018 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 15 November 2017 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

Child support - Application for extension of time to apply for AAT first review - Should the extension be granted - No adequate explanation for the delay - Potential merit - Balance of factors do not favour the grant of an extension of time - 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. Mr Singh is liable to pay child support to Ms Singh for their three children, [Child 1], [Child 2] and [Child 3].

2. On 18 June 2018, Mr Singh lodged an application with the Administrative Appeals Tribunal (AAT), seeking a review of the Registrar’s partial allowance of an objection by him.  Mr Singh had objected to a decision of a type known as a “change of assessment” made on 1 August 2017.   The original decision had markedly increased the rate at which Mr Singh was liable to pay child support.  The Registrar’s decision on the objection ameliorated that to a degree, but the resulting rate payable by him was still substantially higher than it had been prior to the original decision.

3. The Registrar made the decision on the objection on 15 November 2017 and served notice of the decision on [Mr A] electronically on the same day.  Decisions on objections are reviewable by the AAT on application, but the ordinary law[1] requires that such an application must be lodged within 28 days of the day on which notice of the decision was served on the person. Mr Singh’s application was not lodged within that time. The only way in which Mr Singh’s application could lawfully be made is that set out in section 91 of the Child Support (Registration and Collection) Act 1988 (the Act); that is, the application must be accompanied by an application for an extension of time.  Self-evidently, if the extension of time is not granted, the application is out of time and cannot proceed.

   [1] Section 29 of the Administrative Appeals Tribunal Act 1975.

4. The child support law offers neither direction nor guidance on how the decision on the extension of time application should be made.  I have had regard to general case law, including Ingram-Nader v Brinks Australia Pty Ltd [2006] FCA 624, Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 and Brisbane South Regional Health Authority v Taylor [1996] HCA 25. The first two judgments cited set out a number of factors which are potentially relevant in determining such applications, such as the reason for the delay and the merits of the objection. In the third judgment, McHugh J gives a clear explanation of the public policy considerations attaching to statutory time limits.

5. The starting point is a presumption that applications lodged out of time are not allowed to proceed.  The power to extend the time for lodgement should not be exercised in a way which frustrates the intent behind prescribing a time limit.

6. The paramount (although not prerequisite) consideration is whether there is an adequate explanation for delay.  If there is a good reason why the person did not lodge within time, then the person should be able to explain it.  If there is no good reason, then allowing the extension would tend to frustrate the purpose of having a time limit in the first place. 

7. Section 91 requires, via subsection (2), that the application for extension of time “must state the reasons for the person’s failure to apply for the review within the period”. Self-evidently, “the period” is the period of 28 days from the day on which notice was served. In this case, that period was 16 November 2017 to 9 December 2017. The only text included in Mr Singh’s application which could potentially provide an explanation of delay is the following paragraph (copied from Mr Singh’s electronically lodged document):

This objection has been created due to assessment dated 01/08/2017

As I was in hospital as of the 04/09/2017 due to extreme burns to my leg, I wasn’t able to action a second objection in the time which was requested (Documents included). I have since be unable to work and receive new start allowance. The plan is to obtain employment once I get medical clearance.

1. Mr Singh included notes from the emergency department which he attended on 2 September 2017.  The notes do not suggest that Mr Singh was still hospitalised on 15 November 2017 when the objection decision was made.  In any case, other evidence shows that he was not incapacitated at that time.  A Child Support Agency file note shows that on the day of the decision, the objections officer had a telephone conversation with Mr Singh about the decision.  The officer noted that she had not discussed his right of review by the AAT, but correctly noted that “this information is contained in the report”.  Both the covering letter to the decision statement, and the decision statement itself, contained a statement as to the right to apply to the AAT, the need to do so within 28 days and the AAT’s telephone number.

2. Mr Singh contacted the Child Support Agency by email on 6 December 2017.  This was (in my view, not unreasonably) taken by the Child Support Agency to be an attempt by him to object to the objection decision.  An officer of the Child Support Agency telephoned Mr Singh on 11 December 2017, explained that he needed to contact the AAT for review and gave him the AAT’s telephone number.

3. Notwithstanding that, it was another six months before Mr Singh applied to the AAT.

4. I consider that Mr Singh’s application does not state his reasons for delay and that in fact, there is no adequate explanation for his delay.  Although there is Federal Court authority to the effect that an adequate explanation is not a prerequisite for the grant of an extension of time, it is nonetheless a very important consideration.  In my view, the absence of an adequate explanation in this case strongly suggests that no extension should be granted.

5. I have examined the Registrar’s decision on the objection. The process by which it was reached was not an unreasonable one, but some elements of the determination appear to have been formed without any overt regard to possible hardship that would be caused to Mr Singh, a consideration that is required by subsection 117(4) of the Child Support (Assessment) Act 1989.  In particular, I note that part of the decision is that for a period of nearly four months, “the annual rate of child support payable by Mr Singh is set at $6,994 in recognition of him being unemployed for the period 2 September 2017 to 31 December 2017”.  Logically, receipt of newstart allowance could not be expected to afford Mr Singh the capacity to meet that expense from his income and there did not appear to be any consideration of other property or financial resources from which it could be funded.

6. I consider therefore that Mr Singh’s application is not without prospects of success.  This is a factor which tends to suggest that it would be in the interests of justice to allow the application to proceed.

7. The ordinary period for seeking review expired 28 days after 15 November 2017, and the parties were entitled to rely on the decision in relation to its effect on their finances.  Allowing an application made six months later to proceed creates the potential for a retrospective adjustment of those financial positions, which is an inherently undesirable thing.  The delay is relatively long, in comparison to the period in which an application should have been lodged.  I consider that allowing such an application to proceed would prejudice the other party.

8. On balance, while there is some merit in Mr Singh’s disagreement with the objection decision, the fact remains that he should have applied to the AAT by 9 December 2017 and he has offered no explanation as to why he did not do so.  I do not consider that the balance of factors favours the grant of an extension of time, I and decline Mr Singh’s application for one.  His application for review of the objection decision cannot proceed to be heard.