Sprigg and Child Support Registrar and Anor

[2008] AATA 125

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 125

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/2168

GENERAL ADMINISTRATIVE DIVISION		)
Re		SUSAN SPRIGG

Applicant

And CHILD SUPPORT REGISTRAR

Respondent

And          WARREN SPRIGG

Second Respondent

DECISION

Tribunal Senior Member L Hastwell

Date19 February 2008

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

..............................................

L HASTWELL
  (Senior Member)

CATCHWORDS

CHILD SUPPORT – application for extension of time in which to lodge objection – decision to change child support assessment – failure to lodge objection within time allowed by statute – delay substantial – no jurisdiction to hear merits of substantive application –reasons for delay – prejudice to all parties considered – no obvious error in original decision – decision affirmed

Child Support (Assessment) Act 1989 ss 98Z, 98ZD, 98ZE

Re Roberts and Secretary, Department of Family and Community Services [2003] AATA 269
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309
Re O’Donnell and Child Support Registrar [2004] AATA 474

REASONS FOR DECISION

19 February 2008   Senior Member L Hastwell  

1.      Mrs Susan Sprigg (the applicant) seeks a review of a decision made by an officer of the Child Support Agency (the CSA) on 24 January 2005 refusing her an extension of time in which to lodge an objection to a decision of Senior Case Officer (SCO) Le Poidevin made on 15 May 2003 (the 2003 decision).  His decision was a departure determination from an assessment of child support obligations made by the CSA.

2.      The Child Support Registrar is the respondent to the review application and opposes an extension of time being granted.

3.      The applicant’s former husband and the father of the children, was joined as a second respondent to the proceedings (the second respondent) as his interests could be affected by the outcome of any decision of this Tribunal.

4.      The second respondent provided the Tribunal with a submission that he had made in an earlier case before the Federal Magistrates Court of Australia in which he summarised the child support that he had paid for his children since separation.  He also expressed his concerns about the financial position he had been put in by the CSA.  His position appeared to be that he opposed the current review application being granted.  However, if the applicant was successful he would also want to be heard with respect to the issue that would then return to the CSA. 

5.      It was obvious from their respective submissions that there was continued acrimony between the parties, despite many years of separation.

relevant legislative provision

6. Under s 98Z of the Child Support (Assessment) Act 1989 (the Act) an objection to a review decision of a Child Support Officer had to be lodged within 28 days of the CSA serving the Notice of the Decision on the parent.

7. Under s 98ZD of the Act, as it stood prior to 1 January 2007 (the provisions relevant at the time), a person could apply for an extension of time in which to lodge an objection to certain decisions as defined under s 98Z of the Act.

8.      The applicant’s objection that is currently out of time is to a decision that was a departure determination under Part 6A of the Act.  A departure determination is within the definitions of decisions against which objections may be lodged.

9. The applicant was 18 months out of time with respect to lodging her objection when she applied for an extension of time in which to lodge that objection pursuant to s 98ZD of the Act as it then stood.

10. Section 98ZD of the Act was as follows:

“(1)If the period for lodging an objection under this Part has ended, a person may lodge the objection with the Registrar, together with a written application asking the Registrar to consider the objection in spite of the ending of the period.

(2)The application must state the reasons for the person’s failure to lodge the objection within the period required by this Part.”

11. Section 98ZE provides as follows:

“(1)If a person applies to the Registrar under section 98ZD in relation to an objection, the Registrar must:

(a)consider the application; and

(b)either grant or refuse the application within 60 days after the application was lodged; and

(c)if the Registrar grants the application—deal with the objection under section 98ZC.

(2)If the Registrar does not make a decision on the application within 60 days after the application was lodged, the Registrar is taken to have refused the application at the end of that period.

(3)The Registrar must give written notice of the decision granting or refusing the application to the person who made the application.

(4)The notice must include a statement to the effect that, if the person is aggrieved by the decision, application may, subject to the Administrative Appeals Tribunal Act 1975, be made to the AAT for review of the decision.  Except where subsection 28(4) of that Act applies, the notice must also include a statement to the effect that the person may request a statement under section 28 of that Act.

…

(6)If an application under subsection 98ZD(1) is granted, the person who made the application is, for the purposes of this Act, taken to have duly lodged the objection to which the application relates.

(7)A person aggrieved by a decision under subsection (1) may apply to the AAT for review of the decision.

(8)In subsection (7), decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.”

12.     The Tribunal is satisfied that in the circumstances it has the statutory authority to deal with the extension application.  It has no power to deal with the objection as such, and if the applicant is successful, then the matter will be remitted to the CSA for consideration of her objection.

issues 

13.     The issue for the Tribunal to determine is whether the applicant should be granted an extension of time in which to lodge an objection to the 2003 decision.

background facts

14.     The matter proceeded to a hearing on the papers with the parties’ consent and after all parties had been given an opportunity to file any further written submissions that they wanted the Tribunal to consider.

15.     The following background facts are not in dispute:

·At the relevant time (2003), the applicant was a carer entitled to child support for the two children of her marriage to the second respondent, namely Tyson, who was born in 1986, and Ellen, who was born in 1988.

·On 2 April 2003, the applicant applied for a change of assessment to increase the child support payable by the second respondent.  She applied on a number of grounds and she was partially successful in her application.

·On 15 May 2003, SCO Le Poidevin made a change of assessment decision based on his finding that the current child support assessment did not properly take into account the income, earning capacity, property and financial resources of the applicant or the second respondent.  He set a new child support income amount for the second respondent for the period 1 May 2003 to 9 October 2004.

·The reason for the change of assessment was that the second respondent had received a lump sum insurance payment and was also receiving income protection payments.

·SCO Le Poidevin made direct inquiries from the insurer with respect to the quantum of the lump sum received by the second respondent.  Through that inquiry he also ascertained the amount of income protection payments that were being received by the second respondent.

·On the basis of that information, SCO Le Poidevin found that there was a basis for varying the child support assessment.  He then went on to determine what he considered to be a fair annual income for the second respondent and the child support assessment was varied.

·The CSA wrote to both parties advising of the 2003 decision and notifying each party of their objection rights.  The letter to the applicant dated 4 June 2003 (T4) advised that any objection had to be lodged with the CSA within 28 days of receipt of the letter.  That letter was sent to her correct mailing address for correspondence. 

·The applicant now claims to have not received this notice.  She acknowledges that the address was correct.

·No objection was received from the applicant within the time allowed.

·The second respondent lodged an objection within the relevant time.  That was considered on its merits and a letter was sent to the applicant on 10 July 2003 advising that the second respondent’s objection had been disallowed.  She does not deny receiving this letter or any subsequent correspondence from the CSA.

·On 22 September 2004, the applicant (still using the same address) lodged a further change of assessment application.  That application for change of assessment related to the assessment for the period 10 October 2004 to 30 September 2005.  The oldest child had turned 18 years of age and a new child support assessment had issued.  In her application for a review of the October 2004 assessment, the applicant also asked for further review of the 2003 assessment.

·On 2 November 2004, SCO Parham considered the fresh application for a departure decision lodged by the applicant.  She declined to change the assessment.  Her decision and a letter of notification were sent to the applicant’s address on 5 November 2004 advising of the decision and containing information about her rights (the 2004 decision). 

·In that 2004 decision (T6) SCO Parham also considered the applicant's objection to the 2003 decision.  She noted that SCO Le Poidevin had taken into account the correct information about the second respondent's income and lump sum payment at the time.  She expressed the view that the applicant's objection was to the approach taken by SCO Le Poidevin.  She expressed the view that, on the material available, there was nothing that would persuade her to reconsider the matter.  There had been no change of circumstance and she declined to interfere with the 2003 decision. 

·On 29 November 2004, the applicant lodged an objection to the 2003 and 2004 decisions (T8/37), and she sought an extension of time in which to lodge an objection with respect to the 2003 decision.  She was within time with respect to the 2004 decision.  Her objection was comprehensive and also set out her reasons for failing to object to the 2003 decision within the 28 day time frame.

·On 24 January 2005, the objection in relation to the 2004 decision was considered and then disallowed (T9/36).  On the same date, the application for an extension of time with respect to the 2003 decision was considered and refused.  A letter was sent to the applicant on that date advising her of this decision and advising her of her right to seek review to this Tribunal.

·The merits of the 2003 decision were considered by the SCO considering the extension of time application.  She looked at the facts and the history of the matter (T9/38) and determined that the applicant’s objection to the 2003 decision did not have sufficient merit to succeed even if an extension were granted.

·On 15 August 2005, the applicant once more applied to review a child support assessment with respect to the second respondent's obligations.  A decision was delivered on 19 October 2005 (the 2005 decision).  The applicant's assertions that the second respondent was receiving income that he was not declaring were considered and the applicant raised the issue of the lump sum insurance payment once more.  SCO Howie commented that he considered the decision to apportion the lump sum payment over future years made in the 2003 decision was an appropriate way to deal with the payment.  He declined to interfere with the earlier decision.

·On 25 May 2007 the applicant applied to this Tribunal for a review of the CSA decision to refuse her extension of time application with respect to the 2003 decision and for extension of time to seek review to this Tribunal.

·On 4 July 2007 this Tribunal granted the applicant an extension of time in which to apply for a review of the CSA’s decision.

documents relied upon by the tribunal

16.     In reaching its decision to affirm the decision under review, the Tribunal had regard to the following documents:

·the T documents;

·a document entitled “Applicant’s Submission and Response” received on 9 November 2007 with annexures;

·a letter to this Tribunal from the second respondent dated 2 October 2007 with an annexed document entitled “Federal Magistrates Court of Australia, Family Law Court/Child Support Number 2498/2006, Counter Claim”; and

·the respondent’s statement of facts and contentions

discussion of the evidence

17.     The applicant and the second respondent finalised a property settlement in 2004.  The applicant remained the primary carer of the two children of the marriage and was the person entitled to child support under the Act.  The second respondent was the person liable to pay child support for the children.

18.     The applicant’s submission seeks an extension of time to lodge an objection on a number of grounds which the Tribunal summarises as follows:

·She has been refused compensation under the Compensation for Detriment caused by Defective Administration (CDDA) scheme and has been advised that she must first seek a remedy form this Tribunal prior to further consideration of her application.

·She was not aware of her right to apply for an extension of time to this Tribunal until May 2007.

·She claims not to have received the original letter notifying her of her rights with respect to the 2003 decision.

·There is no prejudice to the second respondent as he is aware of her unhappiness about the 2003 decision because of her regular objections.

·She does not agree with the approach taken to the lump sum payment in the 2003 decision.

·Her husband is back in the work force and yet the CSA decisions pre-supposed that he would not work again.

·She contends that his ability to pay child support in the relevant period was significant.

·She now has a debt to her parents as she has had to rely on them to assist with the financial support of the children.

·She has ill health that has contributed in some non-specific way to the delay in lodging her objection.

19.     In the second respondent’s submission, he claims to be entitled to an overpayment and he provided a document entitled “Counter Claim” in which he assesses what he says the true child support payments would have been had they been assessed on his actual income at all relevant periods.  It is not at all clear whether he supports or opposes the applicant’s application.  A tone of resentment, hostility and anger towards the applicant is evident from these documents.  The second respondent claims to be owed a significant sum of money by the CSA and/or the applicant.

20.     Child support assessments issued at regular intervals after the applicant and the second respondent separated, which determined the second respondent’s obligation to pay child support.

21.     On three occasions the applicant has sought review of the assessments and on each occasion the insurance payment and the income protection payments have been raised as an issue by the applicant.  The 2003 review focused largely on the issue of how the lump sum payment and income protection payments should be treated, but the two later decisions also considered other issues raised by the applicant such as whether the second respondent was earning more income than he declared for taxation purposes.  In the two subsequent review decisions and in one objection decision SCO Le Poidevin's approach to the payments has been considered and has been found to be a valid approach.

22.     SCO Le Poidevin, in his decision of May 2003, obtained accurate information about the insurance payments to the second respondent and made a decision to treat the lump sum payment as income allocated to the second respondent until he achieved the age of 65 years and then adding that to his income protection payments, came to a new income figure for the second respondent which was then set as the child support income amount for the period until the oldest child turned 18 years of age.

23.     It is now 2008.  The children are adults.  The decision that the applicant wants to object to was made almost 5 years ago.  Both parties remain locked in a dispute over the issue of past child support payments for their children.

24.     The Act does not set out any criteria for consideration when considering an application for an extension of time in which to lodge an objection.

25.     In Re Roberts and Secretary, Department of Family and Community Services [2003] AATA 269 Deputy President Forgie commented:

“… the fact that a lengthy period of time has passed does not automatically lead to the refusal of such an order.  As the authorities make clear, whether an extension will be granted is determined by balancing all relevant factors and not simply by one.”

26.     The applicant claims to have been misinformed as to her objection rights.  She claims to have never received a letter detailing those rights.  She appears to have received all other correspondence that went to her address. 

27.     Even if she did not receive the letter advising of her rights this is not the sole determinant as to whether an extension should be granted. 

28.     Some guiding principles to be applied in exercising a discretion to extend time within which an application can be lodged were set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309. In the latter case, O’Connor J commented as follows:

“The principles to be applied in considering an application for extension of time … are:

(a)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.

(b)It is relevant whether the applicant rested on his rights or took action to make the decision-maker aware that the decision was being contested.

(c)Any prejudice to the respondent that would be caused by granting the extension of time is relevant.

(d)Any wider prejudice to the general public in terms of disruption to established practices is relevant.

(e)      The merits of the substantial application are relevant.

(f)Fairness of granting the extension of time as between the applicant and other persons in a like position is relevant.”

29.     In the case of Re O’Donnell and Child Support Registrar [2004] AATA 474, Member Isenberg made the comment that to come to a firm view about the merits of the substantive application is beyond the scope of this Tribunal’s enquiry. Nevertheless, an obvious lack of “rigour” in the original decision and a lack of prejudice to the other parties were factors that she considered in determining that it was appropriate to extend time in that case.

30.     In that case, the delay in lodging an objection was a matter of only months.

31.     The applicant commenced to complain about the 2003 decision in late 2004.  However, her complaint was not that SCO Le Poidevin had not properly considered the matter, but rather that she disagreed with his approach.  The decision of SCO Parham in 2004 suggests that it was a few months earlier, ie in 2004, that she became suspicious that the second respondent was working and she then became aggrieved about the 2003 decision. 

32.     The practical effect of granting an extension of time in this case would expose the second respondent to the possibility of a retrospective variation in child support entitlement and ironically, if the second respondent were to be believed, then a successful objection may work to the detriment of the applicant.  The Tribunal makes no comment as to the merits of the position of either party.

33.     The CSA submits that there are sound policy reasons behind Parliament imposing a time frame for objection to a review application, that the case ended effectively on 17 October 2005 and that from the CSA perspective the case is closed.

34.     The applicant has effectively had a merit review of the 2003 decision on a number of occasions and she seeks to once more go over the same ground that has been considered now on a number of occasions by different officers of the CSA.

35.     The applicant has undoubtedly experienced financial difficulties since separation while facing the difficult task of bringing up two children on her own and with what she considers to be insufficient financial support from the second respondent.  The second respondent, on the other hand, cites his own personal difficulties over the years and based on his own assessment he believes that he has paid too much child support.

36.     The applicant’s submission to this Tribunal raises issues that go well beyond the 2003 decision and complain about events that post-dated the 2003 decision, including the fact that the second respondent did commence his own business at some stage after the 2003 decision and she claims failed to properly declare his income. 

37.     The applicant continues to support an adult child who is completing an apprenticeship and she argues that her own illness has contributed to her delay in lodging an extension of time application.  An adult child who is training can pursue their own remedies for support from a parent and this is not a relevant factor for the Tribunal to consider.

38.     A lengthy period of time has passed since SCO Le Poidevin’s decision.  SCO Howie in the 2005 decision was asked to consider the 2003 decision at the time he was making his decision and he commented as follows:

“… From the nature of the original decision by Senior Case Officer Le Poidevin, it appears to me that he considered it possible that Mr Sprigg may not be able to fully re-enter the workforce in the near future.  Although Mr Sprigg has commenced self employment, it has not yet proven to be a viable full-time enterprise although it may well do so in the future.  In those circumstances I consider his decision to apportion the lump sum payment over future years was an appropriate way to deal with the issue. …” ( T11/45)

39.     Although the Tribunal must have regard to the applicant's rights, it must also have regard to the position of the respondent and the second respondent and to the need to bring an end to disputes.

40.     Five years have elapsed since the original decision.  There is no new and compelling evidence put forward by the applicant that would suggest that serious injustice will occur in this case if the applicant is not allowed to reopen the matter.  Parliament imposes a time frame upon objections for good reason.  Parties must be able to get on with their lives and rely on decisions of the CSA in conducting their ongoing affairs.  Both parties remain emotional and angry with respect to the child support issues and they are both aggrieved by the child support decisions along the way.

41.     There has effectively been a substantive review of the 2003 decision on a number of occasions and on each occasion it was determined that there was nothing wrong with the substantive decision.

42.     To allow an extension of time would put the CSA to considerable time and effort in dealing with the matter with the two warring partners keen to continue their battle.  There is a point when things must be put to rest and it is the Tribunal’s view that the extension should not be granted in all the circumstances of this case.

43.     It is the Tribunal's view that it should only be in reasonably exceptional circumstances that an extension of time should be granted to lodge an objection to a review of a CSA decision after such an extended period of time has elapsed, particularly when there is prejudice to other parties involved if the extension is granted. 

decision

44.     In the circumstances the Tribunal affirms the decision under review.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell

Signed:         .....................................................................................
  Associate

Date of Hearing on papers       26 November 2007
Date of Decision  19 February 2008