Tomes and Child Support Registrar (Child support)

[2019] AATA 1215

Tomes and Child Support Registrar (Child support) [2019] AATA 1215 (12 April 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/PC015754

APPLICANT:  Mr Tomes

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member S Brakespeare

DECISION DATE:  12 April 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – refusal to grant an extension of time to object - no satisfactory explanation for the delay - no arguable merit - extension of time was correctly refused - decision under review affirmed

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.

REASONS FOR DECISION

BACKGROUND

1. On 22 December 2018 an officer of the Child Support Agency refused Mr Tomes’ application for an extension of time to lodge an objection to a decision made by the Child Support Agency on 27 August 2018 which, in turn, was to refuse to make a decision to depart from the administrative assessment of child support.

2. Mr Tomes lodged an application for review of the extension of time refusal with the tribunal on 9 January 2019. A hearing was held on 12 April 2019. Mr Tomes and his representative, Mr [A], gave evidence on affirmation to the tribunal via conference telephone. The Child Support Agency provided the tribunal and Mr Tomes with a bundle of papers relevant to the review (182 pages). Mr [A] provided extra documents to the tribunal on Mr Tomes’ behalf (folios A1 to A2).

3. Relevant aspects of the evidence and material before the tribunal will be referred to in the tribunal’s consideration of the issues which it has to decide.

ISSUE

1. 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).

2. The issue which arises in this case is whether Mr Tomes’ application for an extension of time to lodge an objection should be granted.

CONSIDERATION

1. Section 80 of the Act provides that a person may lodge an objection in writing to the Child Support Agency to specified decisions made by the Child Support Agency.

2. Section 81 of the Act provides that an objection to a decision must be lodged by a person within 28 days after a notice of the decision is served on the person.

3. Section 82 of the Act provides, in cases where the lodgement period has passed, a person may send an objection along with an extension of time application requesting the Child Support Agency to treat the objection as having been duly lodged. The application must state fully and in detail the grounds of the application, including the circumstances concerning, and the reasons for, the failure by the person to lodge the objection in time.

4. Section 83 of the Act provides that the Child Support Agency must consider and either grant or refuse the application for an extension of time. If the application is granted then the person is taken to have lodged the objection.

5. The tribunal considered 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 176 (Cohen). In that case the Federal Court said that an extension of time should not be granted unless it was proper to do so noting that, in general, applications or proceedings commenced outside of a prescribed time limit will not be considered. The Court held at [18] that a precondition for the discretion to be exercised favourably for the applicant for an extension of time is that the applicant provides an ‘acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time (citations omitted).

6. A consideration of other relevant authorities establishes that when considering whether 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 that they will experience in providing evidence as a result of the delay;

   ·       wider prejudice to the general public; and

   ·       whether it is proper to grant the extension of time.

Reasons for delay

1. The notice of decision was sent on 28 August 2018 and Mr Tomes lodged his objection application on 21 October 2018. The tribunal is satisfied that the objection was lodged outside the requisite 28 day objection period. It is Mr Tomes’ contention that he did not realise that his objection was out of time when he lodged it and the Child Support Agency did not request the extension of time application from him until 13 December 2018.

2. Mr [A] conceded that Mr Tomes was out of time with his application but noted that the delay was short and that Mr Tomes had verbally objected to the Child Support Agency on several occasions prior to making the written application.  Mr [A] suggested that Mr Tomes might have had difficulty understanding the process because English is his second language.

3. The tribunal notes that Mr Tomes had a discussion with a Child Support Agency officer on 11 September 2018 and was advised that he needed to lodge an objection if he wanted the decision changed. On 19 September 2018 Mr Tomes made contact with the department again and it was again made clear to him that the objection needed to be made in writing and that the 28 day objection period was ending soon.

4. The tribunal also observes that on 4 July 2018 the tribunal (differently constituted) refused an extension application for Mr Tomes to lodge with the tribunal a request for review for a previous decision of the Child Support Agency.  It is the tribunal’s view that Mr Tomes should have been aware of the importance of lodging review applications (including objections) within time and the potential consequences of delays, including relatively short delays, in making such applications. 

5. The tribunal finds that Mr Tomes did not have adequate reasons for the delay in lodging the objection.

Merits

1. The substantive decision is a decision to refuse to depart from the administrative assessment of child support. The provisions relating to departures are contained in Part 6A of the Assessment Act. The tribunal is not required to make a definitive decision on the merits of the case; its role is to be satisfied as to whether there is a sufficient merit for the application to be successful.

2. The administrative assessment that is in place requires Mr Tomes to pay the other parent, Ms [B], an annual amount of child support of $20,139 in respect of their child who is in Ms [B’s] sole care. That assessment was based on an adjusted taxable income for Mr Tomes of $142,000, which was the result of a departure determination made by an officer of the Child Support Agency on 8 February 2018 (an objection to the decision was disallowed). Notably when that original departure determination was being considered Mr Tomes and his accountant failed to provide information to the Child Support Agency despite requests to do so. The Child Support Agency then proceeded to gather information via third parties and made the determination. Significantly, the Child Support Agency established that Mr Tomes was associated as a director and shareholder with two companies, and that his level of personal expenditure using his credit card was such that his adjusted taxable income of $22,358 was not reflective of the income, property and financial resources he had at his disposal.

3. In his change of assessment application made on 7 August 2018 Mr Tomes indicated that his income was limited to austudy payments and that he had no other property or financial resources. He said that he was no longer a director of a company and that he was unable to travel (because of a departure prohibition order) and his former employment required him to travel. He provided no evidence to support those contentions. The tribunal notes that a search by Equifax, requested by the Child Support Agency, indicated that Mr Tomes retained two directorships as at 23 August 2018.

4. Mr Tomes reiterated to the tribunal that his circumstances had changed significantly since the original departure decision. The tribunal asked him whether he had any evidence to support those contentions. Mr [A] said evidence would be forthcoming from Mr Tomes’ accountant once the extension of time was granted. Mr Tomes said that his accountant had denied ever previously receiving requests for information from the Child Support Agency.

5. The tribunal had regard to the papers provided by the Child Support Agency. In the tribunal’s view Mr Tomes has consistently failed to provide evidence in respect of his income, property and financial resources. He has opportunity to provide evidence when lodging the change of assessment application and when lodging his objection and his extension of time application.

6. The tribunal is not satisfied that there is any merit in Mr Tomes’ substantive application. He has had ample opportunity to support his claims in respect of his change of assessment application and has failed to do so. A promise to provide evidence at some later date is not sufficient.

7. It is of course open to Mr Tomes to make a further application for a change of assessment. In the tribunal’s view any such application is unlikely to be successful if it is not accompanied and supported by objective evidence supporting Mr Tomes’ claims.

Prejudice

1. Given the delay in lodging the objections was relatively short, the tribunal is not satisfied that the other parent, Ms [B], would suffer significantly if the extension of time was granted.

2. The tribunal takes the view that there may be prejudice to the general public in granting an extension of time where the substantive application has little prospect of success as that would not be a proper use of taxpayer funds.

Whether it is proper to grant the extension of time

1. The tribunal finds that it is not proper to grant the extension of time as Mr Tomes did not have adequate reason for the delay and the substantive application does not have sufficient merit.

DECISION

The decision under review is affirmed.