Syverson and Child Support Registrar (Child support)

[2019] AATA 1700

Syverson and Child Support Registrar (Child support) [2019] AATA 1700 (18 March 2019)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2018/SC015632

APPLICANT:  Ms Syverson

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                18 March 2019

APPLICATION:

An extension application made on 17 December 2018 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 18 June 2018 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 – little merit – 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

Chronology

1. Ms Syverson and Mr Syverson are the parents of [Child 1] (born in 2008) and [Child 2] (born in 2011) in respect of whom there has been an administrative assessment for child support in place since 15 October 2014. Mr Syverson is liable to pay child support to Ms Syverson.

2. From 1 February 2017 to 31 January 2018 Mr Syverson’s liability to pay child support was based on adjusted taxable income (ATI) for 2016 of $48,789 for Mr Syverson and $74,373 for Ms Syverson. On 1 January 2018 a new child support period commenced, and a new assessment issued that would require Mr Syverson to pay no child support to Ms Syverson based on his 2017 ATI of $28,087.

3. On 11 January 2018 Ms Syverson applied for a change of the administrative assessment due to special circumstances. Ms Syverson sought a change on the basis that the children had special needs (Reason 2) and because the assessment did not correctly reflect both parents’ income, property and/or financial resources (Reason 8A).

4. On 19 March 2018 the original decision maker found Reason 8A established and set Mr Syverson’s ATI at $100,000 from 11 January 2018.

5. Ms Syverson objected to the decision on 18 April 2018.

6. On 18 June 2018 the objections officer allowed the objection. The officer found that Reason 8A was established and that Mr Syverson’s ATI was to be set at $210,000 from 11 January 2018 to 31 December 2020.

7. On 19 June 2018 the Department of Human Services – Child Support (the Department) transmitted the objection decision to Ms Syverson electronically. The objection decision noted that the parties had the right to seek review from the Administrative Appeals Tribunal (AAT) but were required to do so within 28 days of receiving notice of the decision.

8. On 16 December 2018 Ms Syverson lodged an application with the AAT for review of the objection decision and subsequently made an application for an extension of time to apply for the AAT review.

9. The Tribunal must consider whether Ms Syverson should be granted an extension of time.

Operation of the law

1. The time limit to apply from an objection decision of the Department to the AAT is 28 days from the date the decision is given to the person: paragraphs 29(1)(d) and 29(2)(a) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).

2. If a person wants to lodge an AAT application outside the 28-day time limit, they must make a written application for an extension of time, which the AAT must grant or refuse: section 91 of the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).

Was the application out of time?

1. On her original application for review Ms Syverson stated that the date of the objection decision was 19 June 2018 and that she received the decision on 31 July 2018 (Folio 4).

2. However, on her application for an extension of time, she stated that she received the objection decision on 13 December 2018 (Folio A6).

3. The records show that Ms Syverson had contact with the Department about the objection decision on the following dates:

   ·       On 19 June 2018 the objections officer sought to contact Ms Syverson by telephone to advise her of the objection decision (Folio 227).

   ·       On 21 June 2018 Ms Syverson spoke to an officer about the objection decision who noted: “Advised Ms Syverson decision was sent on 19/06/2018. Ms Syverson has mygov registered so letters are sitting there online” (Folio 243).

   ·       On 30 June 2018 an officer returned Ms Syverson’s call and noted: “She advised she has not received her letters and I advised they are available on line and she has not been advised they are there. I said I would print up the letters and send them too her. Advised her of her AAT appeal rights” (Folio 245).

   ·       On 9 July 2018 Ms Syverson wrote to the Department about the objection decision. She stated: “I refer to your letter dated 19 June 2018 and note that the Details of Objection Decision advised that Mr Syverson has been compliant and provided information.”

   ·       In November 2018 Ms Syverson called the Department again to advise she was not able to access her letters online.

4. Ms Syverson’s letter to the Department dated 9 July 2018 the Tribunal suggests that by the date of her letter she had received and read the objection decision. At the hearing Ms Syverson confirmed that she had indeed received the objection decision, but said the child support assessment notices which set out how the annual liability of child support was arrived at under the statutory formula, were not included. The Tribunal finds that she was aware of the statutory time limit to seek review.

5. If the letter was received on 9 July 2018 the statutory time limit ended on 6 August 2018. Ms Syverson’s application for review lodged on 16 December 2018 is thus 132 days out of time.

6. Generally the statutory time limit of 28 days is to be enforced unless there are acceptable reasons for departing from this prescribed timeframe.

7. A consideration of relevant authorities establishes that when considering matters relating to an extension of time the Tribunal should consider 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.

Reason for delay

1. Ms Syverson stated that the reason for the delay was because she did not receive the full notice of the decision until 13 December 2018. She stated that she received the entirety of the objection decision and the reasons for the decision in July 2018 but that she did not receive the notices of assessment which set out how the income determined by the objections officer resulted in the new child support liability.

2. The Tribunal finds that the child support assessment notices are issued in consequence of the objection decision; they are strictly speaking not part of the objection decision.

3. The Tribunal also finds that the objection decision contained all relevant information, including the income set for Mr Syverson and the resulting maintenance liability of the father.

4. Ms Syverson’s evidence was that the assessment notices prompted her to seek a further review. The Tribunal notes that her disagreement with the objection decision was in relation to the treatment of the superannuation contributions. She also advised that she sought review after she discovered, on the lodgement of Mr Syverson’s statement of financial circumstances, that he had purchased a second investment property in about September 2018. Neither of these matters arises out of the assessment notices: the objections officer’s determination regarding the superannuation payments is wholly contained in the objection decision and is not mentioned anywhere in the assessment notices. According to the information provided by Ms Syverson the [Property 1] was purchased by Mr Syverson’s company in September 2018. As the purchase was made well after the objection decision it is difficult to see how it is a matter that could have any relevance to the matters before the objections officer.

5. The Tribunal did not find on the whole that Ms Syverson had a reasonable explanation for her delay in seeking a review. However, the Tribunal considered whether there were other factors which warranted an extension being granted.

6. Ms Syverson stated that her reasons for seeking a review are that she believed that the income amount set by the objections officer was too low for two reasons. Firstly, she believed that excess superannuation contributions identified by the objections officer should have been added to Mr Syverson’s ATI of $210,000. Secondly, she stated that Mr Syverson had not been compliant in providing information because he had failed to disclose profit and loss statements and she discovered that he purchased another property in September 2018.

7. Mr Syverson was found to have made superannuation contributions of $15,100 in a year where his taxable income was $28,500. The objections officer notes that for an income of $28,500 that represented an additional $12,000 which formed a financial resource, but noted that in setting the income at $210,000 a contribution of $12,000 was not excessive.

8. Ms Syverson stated that Mr Syverson had not been forthcoming with relevant information. When asked what information that was she stated that he had not told the Department that he had purchased a second property. She said the investment property generated income which was required to be taken into account as a financial resource.

9. The Tribunal notes that as the purchase took place months after the objection decision was made and nine months after Ms Syverson’s initial application for a departure from the administrative assessment, the Tribunal does not consider it a factor that warrants reopening a decision.

10. Indeed, the remedy for a change of circumstances after the initial departure decision is made is not to reopen the initial application but to make a new application for a departure from the assessment in special circumstances.

11. On balance, the Tribunal does not find Ms Syverson’s application has strong merits and, indeed, she has other administrative options in relation to part of her complaint.

Prejudice to the other party, including difficulties in providing evidence

1. Should Ms Syverson be successful in her application there would be some prejudice to Mr Syverson as it would be reasonable for him to rely on the child support assessment and the liability which had been set once the period for challenging the original decision had passed.

2. The legislation prescribes timeframes in which to lodge objections.  The public has an expectation that these timeframes will generally be observed. 

Fairness in granting an extension of time as between Ms Syverson and other persons in similar positions

1. The Tribunal was not satisfied that the reasons for delay provided by Ms Syverson were reasonable. The Tribunal also found her application had little merit and therefore it would not be fair to others to grant this application.

2. The Tribunal does not consider it appropriate to grant an extension of time for Ms Syverson to object to the decision made by the Department on 18 June 2018.  Accordingly the application for review is refused.