Vasquez and Child Support Registrar (Child support)

[2018] AATA 3982

Vasquez and Child Support Registrar (Child support) [2018] AATA 3982 (29 August 2018)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2018/AC014427

APPLICANT:  Mr Vasquez

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                29 August 2018

APPLICATION:

An extension application made on 15 May 2018 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 2 September 2017 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS
Child support - Extension of time to apply for AAT first review - Applicant rested on his rights - Decision under review is not likely to be changed on review - 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 Vasquez is liable to pay child support to Ms Vasquez for their daughter [Child 1].  On 31 May 2017, the Child Support Registrar made a decision that varied the way in which the child support liability was worked out; this resulted in a substantial increase in the rate at which Mr Vasquez was to pay child support, with effect from 22 February 2017.  The decision was to remain in force until the end of the child support case, with a relevant amount indexed by the Consumer Price Index each 1 July.

2. Mr Vasquez objected to the decision and on 2 September 2017, an objections officer (as delegate of the Registrar) allowed in part his objection and changed the decision in a way which still increased his liability, but not by as much as the original decision had.

3. The covering letter for the decision statement and the decision statement itself each contained information about the right of further review of the decision made on the objection.  Each informed Mr Vasquez that he could apply to the Administrative Appeals Tribunal for review and that the application had to be made within 28 days of receipt of the notice; each provided the telephone number for the Tribunal.  Despite that information, Mr Vasquez emailed the Registrar on 25 September 2017 seeking to object to the decision on the objection.  An employee of the Child Support Agency contacted him on 28 September 2017 and explained that the Registrar could not again consider an objection and that Mr Vasquez’ right of review was to apply to the Administrative Appeals Tribunal.

4. The Tribunal received Mr Vasquez’ application on 15 May 2018.  Under the Administrative Appeals Tribunal Act 1975[1] and the Child Support (Registration and Collection) Act 1988[2] (the Registration and Collection Act), an application of this type must be lodged within 28 days of the date on which the document setting out the decision is given to the person or else must be made with an application for an extension of time.  Mr Vasquez’ application was self-evidently not lodged within the prescribed 28-day period, but did include an application for an extension of time. 

   [1] Section 29.

   [2] Section 91.

5. Under subsection 91(2) of the Registration and Collection Act, the application for extension of time must “state the person’s reasons for the person’s failure to apply for review within the period”.  To this end, Mr Vasquez wrote (reproduced as per original):

   When the decision was first made I consulted a lawyer in [Suburb 1] in the expectation that an appeal would be lodged within the required time when this did not occur I assumed that the lawyer formed an opinion that an appeal was without merit.  I have recently been made aware that this is not the case.  I submit that the extension should be granted because the aforementioned reasons outweigh any consideration or view that my cause of the delay was unreasonable or I rested on my rights.

6. The “aforementioned reasons” to which Mr Vasquez referred were:

   ·       Mr Vasquez’ views as to the merits of the decision;

   ·       A submission that he was prepared to accept a decision that would objectively increase his child support rate (although by a substantially lesser amount than the objections officer’s decision) and that this “concession” would negate any prejudice to Ms Vasquez as a result of permitting the review to proceed;

   ·       A submission that there would be no prejudice to the general public;

   ·       A submission that the decision was unduly harsh in that it varied the assessment to a high rate until the end of the case, expected to be [Child 1]’s 18^th birthday in 2021.

CONSIDERATION

1. 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.

2. 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.

Reason for delay

1. 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. 

2. I do not consider Mr Vasquez’ explanation to be adequate.  I note that there is no evidence corroborating his submission that he contacted a lawyer in relation to making an application to the Tribunal.  Upon hearing nothing back from his lawyer, a reasonable response would be to make further contact with that lawyer to seek clarification, to make other enquiries or, most obviously, to contact the Tribunal itself.  It was not reasonable to draw the rather drastic inference that the lack of any response meant that his lawyer viewed his case as being without merit.  Mr Vasquez then made a choice, based on his inference as to his lawyer’s view, to make no further enquiries and to make no application to the Tribunal within the prescribed period.

3. In simple terms, no other person can be found to have misinformed Mr Vasquez as to his rights; he is solely responsible for the choice he made not to apply to the Tribunal within the prescribed time.  I am satisfied that in so doing, he certainly rested on his rights.  Those circumstances weigh heavily against the grant of an extension of time.

Merits of the case

1. The particular decision to which Mr Vasquez objected was a decision of the type known as a “Registrar-initiated change of assessment”.  This means that the Registrar formed the view that, because of special circumstances in the case, the level of child support produced by the assessment then in force was unjust and inequitable because of Mr Vasquez’ income, earning capacity, property and financial resources and went through a specific process dictated by statute before making the final determination.

2. The Registrar had regard to information concerning Mr Vasquez’ involvement as trustee of four separate trusts and as beneficiary of one of those four and of one other trust.  The Registrar essentially considered that a proportion of the income of those entities was either income or a financial resource available to Mr Vasquez for his own use, including for the support of his children.

3. The determination is not one which can be made with mathematical precision and it follows that reasonable minds may differ as to what was the preferable determination.  However, the decision process adopted is not obviously flawed and the outcome is consistent with the evidence considered.  I do not consider the decision unreasonable, and am not satisfied that the decision would be likely to be changed on review.

4. As such, I view the merits of Mr Vasquez’ case as a less strong factor, but one which also disfavours the grant of an extension of time.

Other matters

1. I am not persuaded that Mr Vasquez’ “concession” is relevant to the question of whether allowing the matter to proceed to review would cause prejudice to Ms Vasquez.  Such prejudice would potentially arise in more than one way.  Once the decision was made and the period for applying for review expired, Mr Vasquez was entitled to rely on receiving from Mr Vasquez the amount of child support delivered by the decision, and to make financial decisions based on that state of affairs.  

2. Mr Vasquez seeks a decision delivering her a considerably lesser amount of child support and if he were successful, it is likely that her entitlement would be retrospectively reduced.  Such retrospective changes to a person’s financial status are undesirable.

3. The other source of potential prejudice is that the passage of time can render it difficult for the non-initiating party to gather relevant evidence.  The delay here is not such that I would consider that to be a significant possibility.

4. However, prejudice to the other party and prejudice to the broader community are factors which, if present, tend to disfavour, not favour, the grant of an extension.

OUTCOME

1. In my view, the absence of adequate reason for delay, as noted, strongly disfavours the grant of an extension of time.  Contrary to Mr Vasquez’ submission, the other factors do not outweigh that.  In my view, they are neutral at best.

2. I am not persuaded that it is in the interests of justice that Mr Vasquez be granted an extension of time and I decline to grant his application.  It follows that his application for review was out of time and therefore is not an application which empowers the Tribunal to conduct the review that he seeks.