Watton and Child Support Registrar (Child support)

[2018] AATA 4654

Watton and Child Support Registrar (Child support) [2018] AATA 4654 (24 October 2018)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2018/SC014602

APPLICANT:  Ms Watton

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                24 October 2018

APPLICATION:

An extension application made on 18 July 2018 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 7 March 2018 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS
CHILD SUPPORT – extension of time to apply for review – reasonable explanation for the delay – little 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. Ms Watton and Mr Watton are the parents of [Child 1] (born January 2000) and [Child 2] (born November 2002).

2. On 27 November 2017 Ms Watton applied to the Department of Human Services, Child Support (the Child Support Agency) for a change to the assessment.

3. On 21 December 2017 the Child Support Agency made the decision to change the assessment so that from 27 November 2017 to 30 November 2018 Mr Watton’s adjusted taxable income is set at $91,704.  This was done on the basis of Mr Watton’s income, property and financial resources (the ground commonly known as Reason 8A).

4. On 25 February 2018 Ms Watton lodged an objection to that decision with the Child Support Agency.  As the objection was not lodged within the prescribed period, on 6 March 2018 she also applied for an extension of time to object (the first extension of time application).

5. On 7 March 2018 the Child Support Agency refused to grant the extension application (the refusal decision) and Ms Watton was notified of the refusal decision in correspondence dated 7 March 2018.

6. On 18 July 2018 Ms Watton lodged an application with the Administrative Appeals Tribunal (the Tribunal) for an extension of time (the second extension application) for review of the refusal decision.  At the same time Ms Watton also lodged an application for review of a care matter.  This is not before the Tribunal.

7. The matter was considered on 24 October 2018 on the papers (consistent with the Tribunal’s ‘Child Support Review Directions’).  The Tribunal had before it a bundle of papers provided by the Child Support Agency.  Ms Watton provided the Tribunal with additional evidence (A1), however, this is not relevant to the matter under consideration.

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

9. The issue which arises in this case is whether or not to grant Ms Watton’s request for an extension of time to review the refusal decision.

10. 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.

11. Section 90 of the Act and subsection 29(2) of the Administrative Appeals Tribunal Act 1975, establish that an application for review must be made within 28 days of being served with notice of the decision.

12. 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.  Ms Watton was advised by the Child Support Agency about the outcome of the refusal decision by correspondence dated 7 March 2018.  Given Ms Watton lodged her application with the Tribunal more than 28 days after she was served with notice of the refusal decision the Tribunal is satisfied that an extension of time was required.

13. 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 that 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.

14. 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 Ms Watton’s application to the Tribunal on 18 July 2018 in relation to the refusal decision made on 7 March 2018, of which she was notified by post, is approximately 92 days out of time.

2. In seeking an extension of time Ms Watton states as the reasons for the delay that she originally sent her objection letters to the Tribunal and the Child Support Agency by email to [email protected] and later discovered that it only went to the Child Support Agency.  Ms Watton states she felt misguided by the Child Support Agency as she was not contacted and advised her documents went to the wrong department.

3. The Tribunal notes in evidence provided by the Child Support Agency, copies of separate letters sent by Ms Watton concerning the care matter and the change of assessment matter she was dealing with.  The first letter, dated 12 March 2018, relates to the care matter and is addressed to both the Tribunal and the Child Support Agency.  The second letter, dated 16 March 2018, relates to the change of assessment matter and is addressed to the Tribunal only.  Both letters were sent by email to the Department of Human Services email address.

4. The second letter, although addressed to the Tribunal, states:

   I’m writing in response to your letter dated 7^th March regarding: MY REQUEST FOR AN EXTENSION OF TIME TO LODGE AN OBJECTION HAS BEEN REFUSED.

5. The notification of the refusal decision provided by the Child Support Agency dated 7 March 2018 outlines what to do if Ms Watton disagreed with the decision.  This includes asking the Tribunal to undertake a review ‘within 28 days from the date you receive this letter’.  It also provides the Tribunal’s website and telephone contact details.

6. Despite this clear advice, it is apparent that Ms Watton has confused the roles of the Tribunal and the Child Support Agency.  The Tribunal accepts, however, that Ms Watton intended her appeal to be made to the Tribunal.  In doing so, the Tribunal notes that if Ms Watton had sent her application directly to the Tribunal in the first place, rather than to the Child Support Agency, as it was dated 16 March 2018 it would have been within the required time period.

7. The Tribunal is therefore satisfied that Ms Watton has provided a reasonable explanation for the delay in applying for review of the refusal decision.

Merits of the application

1. To determine if the application for review has merit, the Tribunal is required to consider whether or not another decision-maker might consider it was proper to allow Ms Watton an extension of time to object to the decision to change the assessment.

2. Ms Watton told the Child Support Agency she had objected late to the change of assessment because she was unwell and her son, [Child 2], was hospitalised.  Ms Watton also pointed out that she had indicated her intention to object to the change of assessment on 2 February 2018 but then asked for matters to be placed on hold until further notice.

3. The Child Support Agency reviewed the details of the discussion Ms Watton had with the objection officer prior to withdrawing her initial objection and accepted she was unwell and focused about her son’s health.  As a result the Child Support Agency was satisfied with the explanation provided by Ms Watton for the delay in lodging her objection.

4. The Child Support Agency also considered the merits of Ms Watton’s application for an extension of time to object.

5. In her original change of assessment application, Ms Watton sought a decrease in the annual rate of child support payable by her on the basis of Mr Watton’s income, property, financial resources and earning capacity.  In the 21 December 2017 decision, the Child Support Agency found Mr Watton’s income to be significantly higher than that used in the administrative assessment and set his income at $91,704 from 27 November 2017, being the date Ms Watton lodged her application.  The income calculations were based on information obtained from Mr Watton’s employer.

6. The Child Support Agency did not establish a ground to change the assessment on the basis of Mr Watton’s earning capacity as he was working full-time and did not satisfy the compulsory criteria set out in subsection 117(7B) of the Child Support (Assessment) Act 1989. 

7. Ms Watton stated she was objecting to the change of assessment because she wanted the decision backdated to a date prior to the date of her application.  She also believed Mr Watton’s earning capacity had not been fully considered.

8. The Child Support Agency considered both matters again.  In relation to Mr Watton’s earning capacity a ground could not be established.  In relation to backdating the assessment the Child Support Agency could find no compelling reason particularly given there was nothing to show Mr Watton had made a misstatement about his income and his child support obligations at the time of the application were based on a lawfully raised assessment.  Based on the evidence available the Child Support Agency was not satisfied there was merit to Ms Watton’s objection.

9. The Child Support Agency then considered the likelihood of any prejudice to Mr Watton and the general public and found the granting of an extension of time would prejudice both.

10. The Child Support Agency made the decision not to grant Ms Watton an extension of time as there was no merit to her objection and there was likely to be prejudice to both Mr Watton and the general public should the extension be granted.

11. The Tribunal is of the view that the Child Support Agency properly considered the various factors required before making the refusal decision.  Given this, even if the Tribunal did grant the second extension application and went on to hear the first extension application, it is unlikely the Tribunal would grant the first extension application, meaning there would be no need to consider Ms Watton’s objection.

12. As it is unlikely the Tribunal would grant the first extension application if the matter was heard the Tribunal therefore finds Ms Watton’s application has little merit.

Potential prejudice to the other party and the wider public

1. Ms Watton’s application to the Tribunal on 18 July 2018 is approximately 92 days late.  If the Tribunal were to hear the application there would be little prejudice to the Child Support Agency which would be the other party to the review.

2. 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 does not believe there would be significant prejudice to the general public if an extension of time was granted.

CONCLUSION

1. Ms Watton has provided a satisfactory reason for the delay in her second extension application, however, the Tribunal has found there is little merit to her argument.  A conclusion that the applicant does not have an arguable case in relation to the merit of the matter weighs against a decision to grant the extension application irrespective of the reasons for the delay.

2. In such circumstances the Tribunal is satisfied that it is not proper to hear the application for review and will not grant the extension application.

Senior Member R Ellis