Vickers and Child Support Agency and Vickers (Party Joined)
[2006] AATA 1112
•21 December 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 1112
ADMINISTRATIVE APPEALS TRIBUNAL № V2006/283
GENERAL ADMINISTRATIVE DIVISION
Re: SHARON VICKERS
Applicant
And:CHILD SUPPORT REGISTRAR
Respondent
And: MALCOLM VICKERS
Party Joined
DECISION
Tribunal: Mr C. Ermert, Member
Date:21 December 2006
Place:Melbourne
Decision:The decision under review is affirmed.
. Conrad Ermert
Member
SOCIAL SECURITY – child support – extension of time – is there a reasonable explanation for the delay – is an extension of time fair and equitable – is it proper to grant an extension – did the applicant rest on his rights – prejudice to the other parties – prejudice to general public – established practice – merits of the substantial application – fairness between the applicant and other parties
Child Support (Assessment) Act 1989
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42.
REASONS FOR DECISION
21 December 2006 Mr C. Ermert, Member
INTRODUCTION
1. Although separated, Mr and Ms Vickers were still living in the same house with their daughter, Madeleine. On 30 April 2004 Ms Vickers applied to the Child Support Agency (CSA) for a child support assessment on the basis that Madeleine was in her sole care. The CSA assessed Ms Vickers as having sole care. On 21 October 2004 Mr Vickers contacted the CSA, objecting to the assessment of sole care by Ms Vickers. His objection was accepted and the care arrangement was decided as shared care from 5 November 2004.
2. Mr Vickers sought to have the care arrangements backdated to 30 April 2004. He was advised that this could only occur as a result of an objection to the original assessment and that he would have to submit an application for an extension of time in which to lodge such an objection. On 19 November 2004 Mr Vickers applied for an extension of time. However, he subsequently withdrew the application as a result of some advice from the CSA. On 9 December 2005 Mr Vickers advised the CSA that he wished to revisit the issue of the care assessment for Madeleine between 30 April 2004 and 4 November 2004. The CSA advised that his request was invalid as the issue had previously been considered and finalised. Mr Vickers continued to raise the issue and on 28 March 2006 the Child Support Registrar (CSR) advised both parents that an extension of time had been granted to Mr Vickers to lodge an objection to the child care assessment between 30 April and 4 November 2004. This decision was significantly influenced by the CSR’s recognition that errors had been made by the CSA in the original handling of the application for an extension of time.
3. As almost two years had passed since the original assessment was made and any change in the care assessment would involve a considerable sum of money, Ms Vickers objected to the granting of the extension of time. Ms Vickers applied to this Tribunal for a review of the CSR decision dated 28 March 2006 to grant the extension of time.
THE HEARING
4. At the hearing the applicant, Ms Vickers, represented herself, as did Mr Vickers, the party joined. The respondent, the CSR, was represented by Ms Ryan, a senior adviser to the CSA. I had before me the documents lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents), Statements of Facts and Contentions submitted by the respondent and Ms Vickers and a letter dated 21 August 2006 addressed to this Tribunal from Mr Vickers, in effect his Statement of Facts and Contentions.
THE ISSUE
5. The decision to grant Mr Vickers’ application for an extension of time was made under s 98ZD of the Child Support (Assessment) Act 1989 (the Act). This section provides:
(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.
6. Section 98ZE of the Act then obliges the CSR to consider the application and either grant or refuse the application.
7. The issue in this case is whether, as a result of its considerations, the CSR made the correct or preferable decision in granting the application for an extension of time to lodge the objection.
CSA Policy on Applications for an Extension of Time to Lodge an Objection
8. The CSA policy on applications for extensions of time to lodge objections is contained in Part 4.1.5 of The Guide – CSA’s online law & policy guide (the CSA Guide) (T40, p91). This states:
…
CSA will make a decision on an application for an extension of time taking into account that Parliament intended that parents lodge an objection within time. This gives some certainty to parents who organise their financial arrangements around CSA’s decisions. CSA must be satisfied that it is in the interests of justice to allow an extension time in all the circumstances of a case. CSA must consider all of the factors listed below:
·reason for delay
· the merits of the objection
· any prejudice to the other parent
Positions of the Parties
9. Ms Vickers position is well summarised in her Statement of Facts and Contentions:
To outline my position, I disagree with the CSA decision to grant the extension of time to lodge and [sic] objection due to:
·The length of time that has passed between the original decision and the decision to grant the extension of time, a period of two years.
·The decision is prejudicial to myself and is not fair and equitable due to the length of time that has passed, as I have not kept receipts and bills from two years ago.
·The decision is prejudicial to myself and is not fair and equitable as it may result in a retrospective debt of thousands of dollars, which will affect my ability to care for our daughter Madeleine in the future.
·I should not pay the price for the CSA’s administrative errors.
·That Mr Vickers and I have settled all property and child matters in the Family Court last year
·That Mr Vickers did know the original decision dated 30th April 2004 was ‘sole Care’ as he:
·was rung by the Child Support Agency on the 03/05/2004 and all matters of the assessment was (sic) discussed with him (T4).
·received a letter from the Child Support Agency dated the 10th of May 2004 outlining the amount of Child Support he had been assessed to pay and the percentage.
·had access to the Child Support Agency Web Site, as sated by him in his application for an extension of time, and had used it to access information.
10. Mr Vickers contends that for the period in question he was living separated under the one roof with Ms Vickers and Madeleine; and that the child care situation should have been assessed as shared care and not sole care. He submits that he was not informed that the level of care had been assessed as sole care, being told only that it was assessed at 18 per cent. Had he known that 18 per cent represented sole care, he submits that he would have objected to the assessment within 28 days. Once he became aware of the sole care assessment he contacted the CSA with the result that the care assessment was changed to shared care, but with effect only from 5 November 2004.
11. In his letter to the Tribunal Mr Vickers lists the T‑documents that, he says, show his attempts to have the records changed. His letter goes on:
Eventually some CSA officers have understood my complaint; ‘pyr and pye were residing in family home – should have been shared care.’ T34. I support the view that the record should reflect the truth and thus should be changed.
12. In her submissions Ms Ryan referred in turn to the three factors listed in the CSA Guide (T40, p91), namely the reasons for delay, the merits of the objection and any prejudice to the other parent:
One, is the reason for the delay, and the reason for the delay … was the fact that he had attempted to raise this matter earlier and had been persistent with his attempts to raise the matter and he felt that inappropriate agency responses had meant that the question hadn't been addressed earlier.
The merits of the objection, that is looked at on the basis of: if what the applicant was saying was to be proven to be true, would there be some merit to the objection, so not making a detailed evaluation of the merits but, rather, looking to see if there is an arguable case. At this time, in the light of the fact that the care records were changed in November '04, it was recognised that the objection had merit.
Then the prejudice to the other parents, and it was recognised there that, because we are now looking at the issue some time later, they may have some trouble for the other parent in providing information or evidence to respond to the objection, and also that an adverse impact of the result of a successful objection, would also have some negative impact to the other parent. So taking into consideration those three factors, the objection officer decided to grant an extension of time.
CONSIDERATION
13. In considering the issue before me I had regard to the guiding principles to be applied in exercising a discretion to accept an application out of time as set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42.
14. In Hunter Valley Developments Wilcox J said at 348:
…It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend the time…
15. Mr Vickers’ explanation for the delay in objecting to the original assessment of sole care is that CSA did not make him aware that that was the assessment made. Mr Vickers submits that he was informed only that the assessment was 18 per cent; and it was only in October 2004 that he found that the 18 per cent related to an assessment of sole care to Ms Vickers. As soon as he became aware of the sole care assessment he lodged an objection which resulted in a change to shared care from 5 November 2004. This did nothing to change the assessment between 30 April and 4 November 2004. Mr Vickers raised this matter with CSA on 9 November 2004. He was advised to apply for an extension of time to lodge an objection in writing and explain why he did not lodge the application within 28 days (T8, p22). Mr Vickers sent a letter dated 14 November 2004 applying for an extension of time (T11, p29). CSA responded on 27 November 2004 (T12, p30) stating that Mr Vickers had agreed to the withdrawal of the notice of objection. In his evidence Mr Vickers stated that the letter was putting words in his mouth … I had no intention of withdrawing my objection at the time (Transcript, p7). I note that the CSA response was directed to the withdrawal of the objection, not the application for an extension of time. In her submissions Ms Ryan acknowledged that the CSA letter of 27 November 2004 left the extension of time issue unattended.
16. The issue of the care assessment over the period in question continued to be raised by Mr Vickers in letters dated 3 March 2005 (T21, p42), 5 April 2005 (T23, p43), 9 December 2005 (T26, p48), 6 February 2006 (T30, p65), and 9 March 2006 (T33, p69).
17. In essence, Mr Vickers’ contention is that the original delay was occasioned by CSA not advising him that the care assessment was sole care. Thereafter the matter was continually being raised by him in his contacts with CSA.
18. His contentions are essentially supported by Ms Ryan who said:
…it is quite a sad example of action that the agency could have taken or might have performed better, starting with the initial contact with both parents regarding the application for assessment in April of 2004. … Unfortunately, when contact was made with Mr Vickers, there is no mention in the records that the question of the care arrangements was discussed in any detail … We then did receive the letter from Mr Vickers on 14 November, 2004 in which he requested an extension of time to lodge an objection regarding the care recorded … Unfortunately, as we have just discussed there was a phone call and a letter sent to him saying that that objection had been withdrawn … Then we had the letter from Mr Vickers regarding the fact that the earlier care period hadn't been addressed, which we received late 2005. Unfortunately, again, in early 2006 Mr Vickers was advised that we couldn't consider that letter and this objection as the matters had previously been dealt with, but the matter that he was raising had not been previously dealt with, so there was further communication with Mr Vickers until we made the decision in March of 2006 that the extension of time should be granted.
… so the reason for the delay was the fact that he had attempted to raise this matter earlier and had been persistent with his attempts to raise the matter and he felt that inappropriate agency responses had meant that the question hadn't been addressed earlier. (Transcript, pp8-10)
19. From the evidence I find that the applicant for the extension of time, Mr Vickers, has shown an acceptable explanation for the delay. Indeed the delay appears to have been occasioned more by the CSA than Mr Vickers.
20. In order to consider whether it is fair and equitable in the circumstances to extend the time I will follow the process in Re Mulheron. In that decision O’Connor J stated, at p48:
The principles to be applied in considering an application for extension of time under s29(7) … are
(i)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;
(ii)it is relevant whether the applicant rested on his [or her] rights or took action to make the decision maker aware that the decision was being contested;
(iii)any prejudice to the respondent that would be caused by granting the extension of time is relevant;
(iv)any wider prejudice to the general public in terms of disruption to established practice is relevant;
(v)the merits of the substantial application are relevant; and
(vi)fairness of granting an extension of time as between the applicant and other persons in like position is relevant.
Is the Extension of Time Proper?
21. The first question posed by Re Mulheron is whether the extension of time is proper. Ms Vickers thinks that it is not proper because of the length of time that has passed. Mr Vickers wants the true situation to be shown on the records for the period in question. Ms Ryan notes that the legislation does allow for the granting of an extension of time in appropriate cases and submits that the circumstances of Mr Vickers’ application properly warrant the exercise of the discretion to grant the extension of time.
22. The way the six points are set out in Re Mulheron indicates to me that it would be proper to grant the extension of time if the results of the consideration of the five relevant issues (ii) to (vi) support the extension of time and that there is something about this case that makes it proper to allow an extension. Therefore, I will come back to this point after I have considered the other five.
Did Mr Vickers rest on his Rights?
23. In her Statement of Facts and Contentions Ms Vickers said:
I understand that someone may miss the post or be a few days late with an objection and may be granted an extension of time, but a two-year extension does not seem to be within keeping of Parliament’s intention.
24. The steps taken by Mr Vickers in his efforts to keep the matter under consideration are detailed in paragraphs 15 and 16 above.
25. Ms Ryan submits that Mr Vickers has persisted in his attempts to have the assessment for the period before 4 November 2004 addressed.
26. From the evidence I find that Mr Vickers did not rest on his rights in regard to pursuing his objection to the assessment.
Would there be Prejudice to the Parties?
27. First I will consider the situation for Ms Vickers. In her Statement of Facts and Contentions Ms Vickers submits that an extension of time would be prejudicial to her in that she:
…has not kept receipts and bills from two years ago … it may result in a retrospective debt of thousands of dollars, which will affect my ability to care for our daughter Madeleine in the future.
28. Mr Vickers made no submissions on this issue. Ms Ryan submitted that:
… [the] practical effect of granting an extension of time for Mr Vickers to lodge an objection would be to expose Ms Vickers to the possibility of a retrospective variation to her child support entitlement. However, Ms Vickers is entitled to respond to Mr Vickers’s objection and to provide her own evidence for the Registrar to consider
29. From the material in the T‑documents and the parties’ Statements of Facts and Contentions it does not appear to me that a resolution of the substantive issue of the care assessment over the period in question will be affected in a material way by the availability of bills and receipts over the period. Many of the details of that time have been discussed and recorded during the consideration of the objections raised in October 2004 and subsequently. On the issue of the respective debt it is common ground that Ms Vickers may face a retrospective debt if the results of the CSA reconsideration changed the care over the period from sole care to shared care. Nevertheless that is a decision yet to be considered and is one to which Ms Vickers would retain her full entitlement to submit her case. She would also retain the right to lodge an objection to a decision if it were not in her favour.
30. Although Ms Vickers may suffer prejudice if the extension of time were to be granted, such an outcome would occur only if the original decision were found to be incorrect.
31. As Mr Vickers is the party joined in this matter I consider it necessary to consider the issue of prejudice to him. If it were the case that the care assessment should have been shared care and not sole care the situation would be that Mr Vickers paid money to Ms Vickers to which she was not entitled. In his evidence Mr Vickers stated that the money was not an issue for him and that it was the principle of an incorrect record that was important. Nevertheless, the result would be that, under the circumstances, Mr Vickers would have suffered a prejudice.
32. Ms Ryan also raised the question of prejudice to Mr Vickers. In her Statement of Facts and Contentions she submitted:
Conversely, the practical effect of refusing Mr Vickers an extension of time to object to the decision would be to prevent him from having CSA reconsider its decision; and to also prevent Mr Vickers from making an application to a court under Part 7 of the Assessment Act. The Court’s jurisdiction to deal with an application against an incorrect assessment under section 110 of the Act arises only after CSA has considered and made a decision upon either parent’s objection to the Registrar’s decision on the particulars of the assessment … Mr Vickers would be without any avenue of review were the decision to grant the extension of time be set aside.
33. In considering the above material it is clear that there is potential prejudice to one of the parties whichever way the decision in this matter goes. If an extension of time is granted there is potential prejudice to Ms Vickers. If an extension is not granted there is potential prejudice to Mr Vickers. I consider the only way to resolve the potential prejudices is to have the substantial issue reconsidered by CSA and the correct decision determined. The possibility of potential prejudice to the parties, alone, does not persuade me against granting the extension of time.
Is there Wider Prejudice to the General Public?
34. Neither Ms Vickers nor Mr Vickers made submissions on this issue. Ms Ryan submitted that:
…granting an extension of time for Mr Vickers to object in these circumstances would not be a disruption to established practice, and would therefore not cause any wider prejudice to the general public.
35. From the circumstances of this case I can find no prejudice to the general public if an extension of time were to be granted. Rather than cause a possible disruption to established practice, the granting of an extension of time may cause a further review of the processes adopted by the CSA in the handling of this case and thus may enhance established practice in the future.
Are there Merits in the Substantial Application?
36.In her Statement of Facts and Contentions Ms Vickers submitted:
After separating in April 2004, Malcolm withdrew all financial support from his daughter and myself, apart from Child Support payments, but he effused to move out of the house. He was sharing the household bills, as would be fair and reasonable wherever he was living. As I was still doing the cooking, food shopping and house cleaning, we agree to half the bills rather than divide them by three. I was full-time mother and he was working full-time and travelling interstate regularly. … I have provided sound evidence of my role in the care of our daughter during this time, which far exceeded Mr Vickers’s due to his full-time work.
37. In essence Mr Vickers contentions are that during the period in question he and Ms Vickers were living separated under the one roof. He spent time looking after his daughter when he came home from work, put her to bed and some times gave her a bath. Mr Vickers submits that in assessing the care situation as sole care in favour of Ms Vickers, the CSA made the mistake of not applying its own guide that:
Where parents are separated but are living in the same house CSA will generally accept that the parents share care of their children substantially equally unless wither parent is able to show that this is not the case.
38. As a result of Mr Vickers’ objection the CSA changed the care assessment to shared care. In his evidence Mr Vickers said:
the living arrangements didn't change at all but according to the child support records, suddenly we were living in a shared care arrangement but the reality was that we were living shared care in share care arrangement prior to November, 2004.
... I still now want it on records that I was looking after my daughter at that time. Unless the Child Support Agency is actually going to inform me that the care arrangements have been incorrectly assessed, I can't really do anything about it. (Transcript, p5)
39. In her Statement of Facts and Contentions Ms Ryan acknowledged that at the time the parents were separated but living in the same house and re-iterated the policy from the CSA Guide. She went on:
28. The issue of the care arrangements was included in the record of discussions with Ms Vickers on 30 April 2004. There is no reference to the question of shared or sole care in the record of conversation with Mr Vickers on 3 May 2004. When the question of the level of care was considered in November 2004 it was decided by CSA that the care was shared from 5 November 2004.
29. The Respondent submits that in considering whether Mr L’s (sic) objection has merit, the Tribunal need consider only whether his objection is likely to be allowed of all the evidence is found to be true.
40. In considering whether the objection to the substantial issue has merit I note that decision by the CSA to assess the care situation as shared care as from 5 November 2004. I also note Mr Vickers’ statement that the same situation existed prior to that date. This was not questioned by Ms Vickers. This leads me to the conclusion that Mr Vickers’ objection has merit and should be allowed if all other considerations are satisfied.
Is an Extension Fair to Other Persons in a Like Position?
41. On the issue of fairness, Ms Vickers contends that she should not have to pay the price for the CSA’s administrative errors. In her oral submission she stated:
I would only say that I don't think Mr Vickers should feel that Child Support had only treated him badly, I think they treat many people badly. In fact, statistics about how the Ombudsman received 1951 complaints about the Child Support Agency in 2003/2004 and there are lots of issues that I've had over the last couple of years that I don't think have been addressed very well either. (Transcript, p12)
42. Mr Vickers made no submissions particularly on this point. However, he concluded his oral submission by saying:
I would like to add, I think it is a reasonable principle that the truth of the care arrangement be upon the record.
43. Ms Ryan submitted that:
…issues concerning considerations of fairness as between the applicant (that is, the applicant for an extension of time; Mr Vickers) and other persons in a like position do not arise in this case.
44. In considering the circumstances of this issue I am of the opinion that fairness to all the parties in this case requires the substantial issue to be reconsidered in the light of all the relevant facts. The substantial issue can only be reconsidered if an extension of time is granted. Without an extension of time Mr Vickers is not able to lodge his objection. Without an objection the CSA will not be able to re-open the case. Also, without a further finding Mr Vickers would be precluded from taking further action.
45. In regard to fairness for Ms Vickers, she will have the opportunity of substantiating her case for the sole care assessment and establishing her entitlement to the payments received.
Is it Proper to Grant an Extension of Time?
46. I said earlier that I would return to the first of the principles of Re Mulheron, that is whether it is proper to grant an extension of time. In my considerations of the other five principles I have found that all are satisfied by the granting of an extension of time in this case. Accordingly I find that, in this case, it is proper, in the terms of Re Mulheron, to grant an extension of time.
47. The reasoning in Hunter Valley Developments also obliges me to consider whether it is fair and equitable in the circumstances to extend the time. I have found that the only way to achieve fairness in the circumstances of this case is to have the substantial issue reconsidered and this can only be done by granting an extension of time to lodge an objection. I consider that the granting of an extension of time will also be equitable in that the rights of both Ms Vickers and Mr Vickers will be resolved with a reconsideration of the matter with all the relevant facts. The CSA will also have an opportunity to review and explain the processes adopted in its considerations to date. I am satisfied that it is fair and equitable to grant an extension of time in this case.
CONCLUSION
48. I find that the decision by the CSR to grant an extension of time for Mr Vickers to lodge an objection to the assessment of child care between 30 April 2004 and 4 November 2004 meets the principles enunciated in Mulheron. I also find that the decision is in keeping with the CSA Guide (T40), noting that the policies are drawn from the principles in Mulheron. Furthermore, I find the decision to be fair and equitable and should be allowed to stand.
DECISION
49.The decision under review is affirmed.
I certify that the forty‑nine [49] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr C. Ermert, Member
(sgd) Dianne Eva
ClerkDate of Hearing: 10 November 2006
Date of Decision: 21 December 2006
Representative for the applicant: Self‑representedRepresentative for the respondent: Ms C. Ryan, Child Support Agency
Representative for the party joined: Self‑represented
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