Terry and Child Support Registrar (Child support)

[2019] AATA 2532

Terry and Child Support Registrar (Child support) [2019] AATA 2532 (9 July 2019)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2019/SC016249

APPLICANT:  Mr Terry

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                09 July 2019

APPLICATION:

An extension application made on 1 May 2019 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 13 December 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 - no 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

1. On 1 May 2019 Mr Terry lodged an application with the Administrative Appeals Tribunal (the Tribunal) for an extension of time for review of a child support decision made on 13 December 2018.  The matter was considered on 9 July 2019 on the papers (consistent with the Tribunal’s ‘Child Support Review Directions’).  The Tribunal had before it a bundle of documents provided by the Department of Human Services, Child Support (the Child Support Agency).

2. Mr Terry and [Mrs A] are the parents of [Child 1] (born [date]), [Child 2] (born [date]), [Child 3] (born [date]) and [Child 4] (born [date]).  The case commenced on 29 June 2016 and Mr Terry is the parent liable to pay child support.

3. On 25 June 2018 [Mrs A] applied to the Child Support Agency for a change to the administrative assessment on the ground of the high costs of caring for, educating or training the children in a manner expected by the parents (the ground commonly known as Reason 3).  Mr Terry made a cross application on the grounds of his necessary commitments of self-support (Reason 7) and [Mrs A’s] income, property and financial resources (Reason 8A).

4. On 30 July 2018 the Child Support Agency made the decision to change the assessment so that:

   ·     for the period 1 July 2018 to 31 December 2018 the annual rate of child support payable by Mr Terry is increased by $3,277;

   ·     for the period 1 January 2019 to 31 December 2019 the annual rate of child support payable by Mr Terry is increased by $1,661;

   ·     for the period 1 January 2020 to 31 December 2020 the annual rate of child support payable by Mr Terry is increased by $1,150;

   ·     for the period 1 January 2021 to 31 December 2021 the annual rate of child support payable by Mr Terry is increased by $1,155;

   ·     for the period 1 January 2022 to 31 December 2022 the annual rate of child support payable by Mr Terry is increased by $663; and

   ·     for the period 1 January 2023 to 31 December 2023 the annual rate of child support payable by Mr Terry is increased by $688.

5. This was done to reflect the high costs of caring for, educating or training the children in a manner expected by the parents.  A ground was not established in relation to the cross application made by Mr Terry.

6. On 30 October 2018 Mr Terry objected to this decision and on 13 December 2018 the Child Support Agency allowed the objection in part and made the following decision (the objection decision):

   ·     for the period 1 July 2018 to 31 December 2018 the annual rate of child support payable by Mr Terry is increased by $2,948;

   ·     for the period 1 July 2019 to 31 December 2019, the annual rate of child support payable by Mr Terry is increased by $988;

   ·     for the period 1 July 2020 to 31 December 2020 the annual rate of child support payable by Mr Terry is increased by $450;

   ·     for the period 1 July 2021 to 31 December 2021 the annual rate of child support payable by Mr Terry is increased by $472;

   ·     for the period 1 July 2022 to 31 December 2022 the annual rate of child support payable by Mr Terry is increased by $648; and

   ·     for the period 1 July 2023 to 31 December 2023 the annual rate of child support payable by Mr Terry is increased by $680.

7. 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).

8. The issue which arises in this case is whether or not to grant Mr Terry’s request for an extension of time to submit an application for review of a child support decision.

9. Part VIIA, Division 2 of the Act sets out the procedures for applying to the Tribunal for a review of an objection decision made by the Child Support Agency, as well as applying for an extension of time for such a review in the event the application is not made within the prescribed period.

10. Subsection 29(2) of the Administrative Appeals Tribunal Act 1975 establishes that an application for review must be made within 28 days of being served with notice of the decision.

11. If the 28-day period to apply for review has ended, then a written application for an extension of time can be made under section 91 of the Act. The Tribunal finds Mr Terry was advised about the outcome of the objection decision by post in a letter from the Child Support Agency dated 13 December 2018. 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 December 2018.  Given Mr Terry lodged his application more than 28 days after he was served with notice, the Tribunal is satisfied that an extension of time was required.

12. Under subsection 92(1) of the Act, the Tribunal must consider and grant or refuse an extension application. In doing so, the Tribunal considers the guiding principles for the exercise of discretion to allow an extension of time as set out in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186. In that case, the Federal Court said an extension of time should not be granted unless satisfied it was proper to do so, noting that, in general, applications or proceedings commenced outside of a prescribed time limit will not be considered.

13. A review of other relevant authorities establishes that when considering whether or not to allow 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.

Reasons for the delay

1. The Tribunal finds that Mr Terry’s application for an extension of time on 1 May 2019 in relation to the objection decision made on 13 December 2018, of which he was notified by post, is approximately 93 days late.  It is noted that Mr Terry submitted his application for review of the objection decision to the Tribunal on 3 April 2019.  To have been within the prescribed period Mr Terry’s application should have been made no later than 28 January 2019.

2. In seeking an extension of time, Mr Terry states he did not apply to the Tribunal within the required 28 day timeframe because until recently he was not aware he was being billed separately for the school fees “since 2017”.  Mr Terry argues that as he was “already paying the school fees” he should not have to pay again through additional child support.

3. The Tribunal notes in evidence from the Child Support Agency that [Child 1], [Child 2], [Child 3] and [Child 4] were all attending [a school] at the time Mrs [Mrs A] applied for a change to the assessment.

4. Mr Terry provided the Tribunal with two separate fee statements from the school.  Both are in his name.  The first, dated 31 October 2017, shows an opening balance on 1 January 2017 of $2,454.80 and an outstanding balance of $8,246.20.  Half this outstanding balance has been transferred to Terry ([Mrs A]) and the remaining $4,123.10 is owed by Mr Terry.  The second, dated 15 February 2019, shows an opening balance as at 1 January 2019 of $7,271.20 and an outstanding balance of $9,139.90.  There is no fee statement showing the amount of fees owed or paid in the 2018 school year.

5. The Tribunal notes in evidence a record of two separate conversations between Mr Terry and the Child Support Agency on 27 March 2019 and 3 April 2019 in relation to payment of school fees.  During the second conversation Mr Terry states he was contacted by the school and asked to repay a debt of $9,000.  Mr Terry told the child support officer he was unsure if this invoice related to all the fees or if the other parent was also being invoiced.  Mr Terry was then advised to seek a review by the Tribunal.

6. There is no evidence before the Tribunal to indicate Mr Terry was unhappy with the objection decision when it was made.  The Tribunal accepts circumstances may now have changed but this, in itself, is not a valid reason for seeking reassessment of a decision after the timeframe for review has passed.

7. The Tribunal finds Mr Terry has not provided a reasonable explanation for the delay in applying for a review.

Merits of the application

1. Mr Terry is seeking review of an objection decision which changed the administrative assessment based on the high costs of caring for, educating or training the children in a manner expected by the parents (Reason 3).  In this case the assessment was increased to cover Mr Terry’s half of the private school fees for [Child 1], [Child 2], [Child 3] and [Child 4].

2. The determination also considered Mr Terry’s necessary commitments of self-support and [Mrs A] income, property and financial resources but these grounds were not established.  Mr Terry has not raised these matters with the Tribunal.

3. In making any determination to depart from an administrative assessment, the Child Support Agency must first find a ground for departure.  Generally speaking, in order to establish Reason 3 in relation to private school fees, it must be determined that both parents agreed to the children being educated in a particular manner.  The Child Support Agency must also consider, amongst other things, if the additional amount is significant in relation to the assessed costs of the children overall.

4. Mr Terry did not dispute that both parents agreed for [Child 1], [Child 2], [Child 3] and [Child 4] to receive a private school education.  As the cost of this education was significant when compared to the assessed cost of each child in the assessment, the Child Support Agency was satisfied that special circumstances existed.  The Tribunal examined the information used by the Child Support Agency in reaching its decision and finds this to be a reasonable conclusion.

5. Mr Terry is now arguing that [Mrs A] is not meeting her 50 per cent share of the school fees and he is effectively paying the school fees twice.

6. The Tribunal is satisfied that at the time the objection decision was made, a ground for departure from the administrative assessment existed based on the high cost of private school fees for the children.  This may no longer be the case should [Mrs A] not be paying her share of the school fees, however, the objection decision was correct at the time it was made.

7. 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]).

8. The Tribunal finds Mr Terry’s application for review would not have good prospects of success on the ground of the high cost of private school fees for the children.  The Tribunal considers that Mr Terry’s application has little merit.

Potential prejudice to Mrs [Mrs A] and the wider public

1. [Mrs A] should ordinarily be able to rely on the child support assessment once the period for objection has passed.  Given Mr Terry is approximately 93 days late in making his application, it would be reasonable for [Mrs A] to consider the objection decision was final.  The Tribunal finds [Mrs A] would be disadvantaged if an extension of time to lodge an objection was granted.

2. The Tribunal must also consider whether or not there would be prejudice to the general public if an extension of time was granted.  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 a public expectation that there be a degree of certainty in relation to time limits, however, the law also allows for extensions of time.  In this case, the Tribunal considers there would be 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 Terry and other persons in similar positions

1. The Child Support Agency notifies parties that they can seek a review of decisions with the Tribunal and they have 28 days within which to submit a request for such a review.  Most people comply within the 28 day time frame.  The Tribunal is not satisfied that Mr Terry’s circumstances are sufficiently different to that of other applicants in a similar position that an extension of time is warranted.  The Tribunal finds that it would be unfair to others to grant Mr Terry an extension of time in view of the statutory timeframe which applies.

CONCLUSION

1. Mr Terry has not provided a reasonable explanation for the delay in applying for a review.  The Tribunal also found there was little merit to his application as there is no doubt that, at the time the objection decision was made, there was a ground for departure from the administrative assessment on the basis of the high costs of educating the children in a manner expected by the parents.  There would also be prejudice to [Mrs A] should an extension of time be granted.

2. Having carefully considered the various factors which it must take into account, the Tribunal finds it would not be proper to grant an extension of time to seek review of the objection decision made on 13 December 2018 in the circumstances of this case.  Accordingly, the extension application is refused.

3. In making this decision the Tribunal notes that Mr Terry could discuss the situation in relation to the payment of his share of school fees with the school itself.  It is also open to Mr Terry to lodge a new change of assessment application in light of the apparent change in circumstances.