Wallance and Child Support Registrar (Child support)

[2018] AATA 4417

Wallance and Child Support Registrar (Child support) [2018] AATA 4417 (4 September 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/HC014471

APPLICANT:  Mr Wallance

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  04 September 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – Refusal of extension of time to object – No reasonable explanation for delay – Substantive application concerning the use of provisional income in assessment after actual taxable income had been ascertained may have merit – 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. Mr Wallance and [Ms A] are the parents of [Child 1] (born November 2005) and there has been a child support assessment in place since 5 December 2005.

2. The Department of Human Services, Child Support (the Child Support Agency) has used a provisional income of two thirds of the annualised Male Total Average Weekly Earnings (MTAWE) figure in the child support assessments for Mr Wallance in the 2010-11, 2011-12, 2012-13 and 2013-14 financial years.

3. On 27 April 2018 Mr Wallance objected to these decisions and as his objection was not made within the prescribed period, he applied to the Child Support Agency for an extension of time on 14 May 2018.

4. On 29 May 2018 the request for an extension of time was refused and on 2 July 2018 Mr Wallance sought a review by the Administrative Appeals Tribunal (the Tribunal).

5. The matter was heard on 4 September 2018.  The Tribunal had before it a bundle of documents provided by the Child Support Agency (197 pages) and a copy of these documents was provided to Mr Wallance prior to the hearing. Mr Wallance also provided additional evidence to the Tribunal (A1-A36).  Mr Wallance gave evidence on affirmation by conference telephone.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (the Act).

2. The issue which arises in this case is whether or not to grant Mr Wallance’s request for an extension of time to lodge an objection to the decisions made by the Child Support Agency in relation to the income used in his child support assessments.

CONSIDERATION

1. Part VII of the Act is about the procedures related to objections made for certain decisions. Section 81 is about time limits on lodging objections and provides that a person has 28 days in which to lodge an objection after a notice of the decision is served on them. Section 82 provides for a person to apply for an extension of time to lodge an objection after the 28 day period has elapsed. Section 83 requires the Child Support Agency to either grant or refuse an extension of time application and serve notice in writing of the decision.

2. In the event the Child Support Agency refuses the extension of time application, the person applying may apply to the Tribunal for review (item 1 of the table in subsection 89(1) of the Act).

3. The Child Support Agency has provided evidence showing that Mr Wallance was advised about the various decisions relating to the income used in his child support assessments in correspondence dated 16 January 2012, 20 October 2012, 18 January 2014 and 18 April 2015.  Given Mr Wallance lodged his objection more than 28 days after he was served with notice of these decisions, the Tribunal is satisfied an extension of time was required.

4. The Tribunal is required to consider whether it is reasonable or proper for an extension of time to be granted to Mr Wallance to lodge his objection to the decisions made in relation to the income used in his child support assessments.  From other decisions, which provide guidance to the Tribunal on this matter, it is clear that generally the statutory time limit of 28 days is to be enforced unless there are acceptable reasons for departing from this prescribed timeframe.

5. A consideration of other 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.

Reasons for the delay

1. The Tribunal is satisfied that Mr Wallance’s application on 29 May 2018 for an extension of time to consider the various decisions relating to the income used in his child support assessments was out of time.

2. In seeking an extension of time, Mr Wallance told the Tribunal he had been living in [Country 1] for many years and returned to Australia in November 2016.  Mr Wallance said he started trying to resolve his child support assessments upon returning and initially lodged a change of assessment application on the advice of the Child Support Agency.

3. Mr Wallance said he was not familiar with the child support process and thought when he applied for a change of assessment that might resolve all his issues but it did not.  He said was now unable to leave Australia as a travel ban was in place but his family had been unable to stay and returned to [Country 1].

4. The Tribunal discussed with Mr Wallance why he had not attempted to resolve the income matters while in [Country 1].  He explained that he tried to remedy the issue early in 2009 without success and then became annoyed and gave up.  Mr Wallance said he found it difficult trying to manage his child support while in [Country 1] and he did not have online access for some time as the Child Support Agency had cut him off.  Getting a new password for his online account was also difficult.  He said the time difference between [Country 1] and Australia made everything more difficult.  Mr Wallance acknowledged things snowballed because he didn’t take steps to address the income matter further.

5. While the Tribunal accepts Mr Wallance may have found it difficult to deal with his child support while living in [Country 1], it is nonetheless incumbent upon him to take appropriate steps to address such matters in a timely fashion.

6. The Tribunal notes in evidence from the Child Support Agency that Mr Wallance receives his correspondence relating to child support matters electronically and his assessment letters since 2011 have the status “read”.

7. The Tribunal finds that Mr Wallance does not have an acceptable reason for the delay in objecting and he rested on his rights.

Merits of the application

1. Mr Wallance said his child support assessments were incorrect as the Child Support Agency had used a provisional income rather than his actual income since 2008.

2. Section 58 of the Child Support (Assessment) Act 1989 sets out how the Child Support Agency may determine a parent’s adjusted taxable income for the purposes of child support.  Subsection 58(4) states that in certain circumstances the Child Support Agency may use an amount that is “equal to two-thirds of the annualised MTAWE figure for the relevant June quarter in relation to the child support period.”

3. Mr Wallance was advised by the Child Support Agency that if he did not provided details relating to his overseas income then a default income “of at least 2/3 MTAWE (Male Total Average Weekly Earnings) in Australia will be applied”.

4. The Tribunal notes Mr Wallance submitted his change of assessment application with the Child Support Agency on 31 March 2017 and included his [Country 1] tax returns as evidence of his adjusted taxable income.

5. As Mr Wallance supplied this information in relation to his adjusted taxable income, the Child Support Agency must then consider if a retrospective determination of Mr Wallance’s income can be made under section 58A of the Child Support (Assessment) Act 1989 (superseded).  Subsection 58A(2) states, relevantly:

   If:

   (a)  at the time the Registrar is to amend the administrative assessment under this section, the parent could lodge his or her tax return by the date required under Part IV of the Income Tax Assessment Act 1936 (taking into account any deferral under section 388‑55 in Schedule 1 to the Taxation Administration Act 1953); or

   (b)  paragraph (a) of this subsection does not apply and:

   (i) the amount subsequently ascertained, as mentioned in subparagraph (1)(b)(i), is higher than the amount that was determined under section 58; or

   (ii) the later amount that the Registrar determines, as mentioned in subparagraph (1)(b)(ii), is higher than the earlier amount determined under section 58; or

   (c)  neither paragraph (a) nor (b) applies, but circumstances prescribed by the regulations for the purposes of this section apply in relation to the parent;

   then the Registrar must immediately amend the administrative assessment for the child support period on the basis that the parent’s adjusted taxable income for that year of income is, and has always been, the amount that was subsequently ascertained or later determined (as the case requires).

6. The Tribunal does not consider that paragraphs 58A(2)(a) or 58A(2)(b) apply in this case. This then requires consideration of the relevant regulations as per paragraph 58A(2)(c) of the Child Support (Assessment) Act 1989.  Regulation 11 of the Child Support (Assessment) Regulations 2018 states at 11(1):

   For the purposes of section 58A of the Act, the following circumstances are prescribed in relation to a parent who was unable to provide information about the parent’s adjusted taxable income to the Registrar at the time the relevant administrative assessment was made:

   (a)  one or more of the following applied in relation to the parent at that time:

   (i)  the parent did not know that an application for the assessment had been made and accepted;

   (ii)  the parent had a serious illness or injury;

   (iii)  the parent was under detention or imprisonment;

   (iv)  the parent resided in a remote location which made it difficult to contact the Registrar;

   (v)  a natural disaster prevented the parent from being able to contact the Registrar;

   (vi)  there was some other exceptional circumstance that prevented the parent from providing the information;

   (b)  the Registrar confirms that the parent was unable to provide the information at that time because of a circumstance mentioned in paragraph (a);

   (c)  the parent later provides the information to the Registrar as soon as is practicable in the circumstances.

7. It is not a requirement in considering an extension of time application for the Tribunal to come to a final view about the substantive application.  Deliberation is instead given to whether or not the claim has the merit to justify an extension of time.  Based on the additional evidence provided by Mr Wallance and having reviewed the relevant law, the Tribunal is satisfied that the application may have some merit.

8. Mr Wallance also said there were issues around paternity which he had been raising with the Child Support Agency since 2006 but these had been ignored.  The Tribunal did not consider this matter relevant to the decision under consideration.

Prejudice to [Ms A] and the wider public

1. The Tribunal must also consider the potential prejudice to [Ms A] and the wider public.  Given Mr Wallance is significantly out of time in making his application, it would be reasonable for [Ms A] to consider the decisions relating to Mr Wallance’s income were final. [Ms A] should ordinarily be able to rely on the child support assessment once the period for objection has passed. Should a contrary decision be made on objection which resulted in a retrospective change to the assessment, this could be prejudicial to [Ms A].  The Tribunal finds [Ms A] could be disadvantaged should the extension of time to lodge an objection be granted.

2. The Tribunal also considered 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 also a public expectation that there be a degree of certainty in relation to time limits, however, the law allows for extensions of time. In this case, given the lengthy delay, the Tribunal believes there would be prejudice to the general public if an extension of time was granted.

Fairness in granting an extension of time as between Mr Wallance and other persons in similar positons

1. The Child Support Agency notifies parties that they can seek a review of decisions and they have 28 days within which to submit a request for such a review. Most people comply within the 28 day timeframe. It is clear the statutory time limit is to be enforced unless there are acceptable reasons for the delay. There is nothing in Mr Wallance’s situation that makes his circumstances markedly different to that of other applicants in a similar position. The Tribunal finds that it would not be fair to others to grant Mr Wallance an extension of time.

CONCLUSION

1. The Tribunal has found there may be some merit in reviewing the substantive application.  This would ordinarily weigh in favour of granting an extension of time.  The Tribunal has also found, however, that Mr Wallance has not provided a reasonable explanation for the delay in submitting his objection. The significant delay cannot be overlooked and the Tribunal considers that Mr Wallance rested on his rights.  There could also be some prejudice to [Ms A] and the general public should an extension of time be granted.

2. Taking into account all these relevant factors, the Tribunal concludes it would not be appropriate in this case for the extension of time in which to lodge an objection to be granted.

DECISION

The decision under review is affirmed.