Weekes and Child Support Registrar
[2004] AATA 431
•30 April 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 431
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1646
GENERAL ADMINISTRATIVE DIVISION ) Re FRANCIS WEEKES Applicant
And
CHILD SUPPORT REGISTRAR
Respondent
DECISION
Tribunal Ms N Bell Date30 April 2004
PlaceSydney
Decision The decision under review is affirmed.
[Sgd] Ms N Bell
Member
CATCHWORDS
CHILD SUPPORT – extension of time to lodge objection in relation to child support payments – decision under review affirmed.
Child Support (Assesssment) Act 1989 sections 98W, 98X, 98Y, 98Z, 98ZD, 98ZE.
Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42
Hunter and Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315
REASONS FOR DECISION
30 April 2004 Ms N Bell 1. This is an application by Dr Francis Weekes (“the Applicant”) for review of the decision made by a delegate of the Child Support Registrar (“the Respondent”) to not grant an extension of time to lodge an objection to a decision made on 23 March 1999 to increase the amount of child support payable by the Applicant to his former wife and to set assessment rates for the period 1 July 1998 to 5 January 2002.
2. Mrs Thelma Weekes was joined as a party to the Application by an order made by the Tribunal on 3 March 2004 and also appeared at the hearing of the Applicant’s application before the Tribunal.
3. Pursuant to section 98ZE(8) of the Child Support (Assessment) Act 1989 (“the Act’), a person aggrieved by a decision by the Respondent to refuse to extend the time by which an objection may be lodged, may apply to this Tribunal for a review of the decision.
4. A thorough chronology of the Applicant’s dealings and contact with the Respondent is set out in the Respondent’s Statement of Facts and Contentions (Exhibit R1). In summary:
· On 23 March 1999 the Respondent made a change of assessment decision;
· On 5 October 1999 the Applicant applied for a further change of assessment to decrease the amount of payments. No income or expense details were provided;
· On 22 May 2001 the Applicant lodged an objection to the assessments for 1998 to 2002;
· On 29 May 2001 the Respondent wrote to the Applicant advising that his objection could not be considered unless he made an application for an extension of time to lodge the objection;
· On 10 July 2001 the Applicant applied again for a change to the assessment to have the amount of his payments decreased;
· On 17 September 2001 the Respondent made a decision to refuse the Applicant’s application;
· On 29 October 2001 the Respondent received a letter from the Applicant’s solicitors noting an intention to object to the decision of 17 September 2001;
· On 14 August 2003 the Applicant lodged an objection to the decision of 23 March 1999 and applied for an extension of time in which to lodge the objection.
5. Interspersed amongst the above were numerous other contacts by the Applicant with the Respondent, concerning the serving of a summons for enforcement of outstanding child support following proceedings instituted by the Respondent, and concerning the Applicant’s applications for changes of assessment and his dissatisfaction with the outcomes of those applications. These are documented in the T documents before the Tribunal. I note that the Applicant has now made an application to the Local Court (Family Matters) for a departure from the relevant child support assessments and that that application has been stood over until the conclusion of the application before this Tribunal.
6. The relevant provisions of the Act are sections 98W, 98X, 98Y, 98Z, 98ZD, and 98ZE. They provide:
“98W Object and general principle of this Part
(1) The object of this Part is:
(a)to provide for internal reconsideration of decisions of the Registrar that are reviewable by a court having jurisdiction under this Act; and
(b)to provide for internal reconsideration of certain other decisions of the Registrar, and for AAT review of those decisions.
(2)In general, the Act requires a person who is aggrieved by a decision to use the objections procedure under this Part before using the procedures provided in the Act for a court or the AAT to consider decisions of the Registrar.
98X Decisions against which objection may be lodged
(1)A person may lodge with the Registrar an objection in writing to any of the following decisions of the Registrar:
(a)to accept an application for administrative assessment under subsection 30(1);
(b)to refuse to accept an application for administrative assessment under subsection 30(2);
(c) as to the particulars of an administrative assessment;
(d)to make or refuse to make a departure determination under Part 6A;
(e)to accept or refuse to accept a child support agreement under section 92 or 98U;
(f)in relation to the remission of a penalty under section 64A.
(2)In spite of paragraph (1)(a), a person may not lodge an objection to a decision to accept an application for administrative assessment under subsection 30(1) if the ground of the person’s objection is that the person is not the parent of the child concerned.
Note: In this case the person may be able to apply to a court under section 107 for a declaration that the applicant for the administrative assessment in question was not entitled to it.
98Y Who may lodge objection
The person who may lodge objections against a particular kind of decision are as set out in the table below.
Decisions/objectors
Item
Decision
Who may object
1
To refuse to accept an application for administrative assessment
Applicant
2
To accept an application for administrative assessment
Person from whom or to whom the application seeks payment of child support
3
As to the particulars of an administrative assessment
Carer entitled to child support Liable parent
4
To make or refuse to make a departure determination under Part 6A
Carer entitled to child support Liable parent
5
To accept or refuse to accept a child support agreement
Party to the agreement
6
In relation to the remission of a penalty under section 64A
Person by whom penalty is payable
98Z Time Limits on lodging objection
General Rule
(1)An objection to a decision under this Part must be lodged by a person within 28 days after service of notice of the decision on the person unless:
(a) the decision is a refusal decision;
(b)one of the grounds of objection to the decision is based on a refusal decision.
Meaning of refusal decision
(2) A refusal decision is any of the following:
(a)a decision under Part 6A refusing to make a departure determination;
(b)a decision under section 60A refusing to accept an estimate election;
(c)a decision under section 66A refusing to grant an application to reduce the annual rate of child support payable to nil;
(d)a decision under section 151C refusing to accept an application to continue an administrative assessment or a child support agreement in force after a child’s 18th birthday.
Rule for refusal of decisions
(3)If the person’s objection is to a refusal decision, or to a decision on the ground that a refusal decision was wrongly made in relation to the decision, the objection must be lodged within 28 days after service of notice of the refusal decision concerned on the person.
98ZDApplication for extension of time
(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.
98ZEConsideration of applications for extension of time for lodging objections
(1)If a person applies to the Registrar under section 98ZD in relation to an objection, the Registrar must:
(a)consider the application; and
(b)either grant or refuse the application within 60 days after the application was lodged; and
(c)if the Registrar grants the application – deal with the objection under section 98ZC.
(2)If the Registrar does not make a decision on the application within 60 days after the application was lodged, the Registrar is taken to have refused the application at the end of that period.
(3)The Registrar must give written notice of the decision granting or refusing the application to the person who made the application.
(4)The notice must include a statement to the effect that, if the person is aggrieved by the decision, application may, subject to the Administrative Appeals Tribunal Act 1975, be made to the AAT for review of the decision. Except where subsection 28(4) of that Act applies, the notice must also include a statement to the effect that the person may request a statement under section 28 of that Act.
(5)A contravention of subsection (3) or (4) in relation to a decision does not affect the validity of the decision.
(6)If an application under subsection 98ZD(1) is granted, the person who made the application is, for the purposes of this Act, taken to have duly lodged the objection to which the application relates.
(7)A person aggrieved by a decision under subsection (1) may apply to the AAT for review of the decision.
(8)In subsection (7), decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.
7. The Respondent submitted, and I agree, that the principles to which I should have regard in determining this application are those set out in Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42 and Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315.
·In Re Mulheron (supra) President O’Connor said at page 48:
“The principles to be applied in considering an application for extension of time under s 29(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 practices 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.”
8. A number of criteria arise from Hunter Valley Developments (supra). These are most notably:
(a)The applicant should provide a reasonable explanation for the delay. As Wilcox J says in his decision (at page 320):
“Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need to be shown but the court will not grant the application unless positively satisfied that it is proper to do so. … 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 time.”
(b)The applicant should have taken action other than this application to make the decision-maker aware that he or she contests the finality of the decision.
(c)The respondent should not be unduly prejudiced if the time is extended.
(d)The merits of the substantive application are properly to be taken into account in considering whether an extension is to be granted.
9. I have had regard to these principles and the evidence before me in reaching my decision.
10. The Applicant’s evidence was that he had lodged an objection on 5 October 1999, which he argued was only 97 days after time should have begun to run on 1 July 1999. He based this argument on the fact that the amendments to the Act which allowed for objections to be made to assessment decisions only came into force on 1 July 1999.
11. The Applicant also argued that the letter from his solicitors dated 29 October 2001 related to the decision made by the Respondent on 17 September 2001 and which stated an intention to lodge an objection, constituted an objection. However, he later conceded that when he heard no more about the matter he did not pursue it further. He said he didn’t know why his solicitor did not take the matter further except that he thought his solicitor was waiting for a reply from the Respondent. He expressed disappointment at the conduct of his solicitor.
12. The Applicant said that he found the Respondent very confusing to deal with. He said there were constant staff changes and he considered that nobody in the Respondent’s organisation understood the relevant law. He said he spent a great deal of time waiting for people to call him back.
13. The Applicant also said that he works 70 hours per week, 5 ½ days per week and has little time available, given the pressure of his work as a general medical practitioner, to deal with the complicated requirements of the Respondent. He expressed the view that a period of 28 days as required in the Act is unrealistic given the nature of the matters concerned. He also expressed some confusion about the difference between the lodging of an objection to a decision by the Respondent and the lodging of an application for a change of an assessment made by the Respondent.
14. Mrs Weekes also gave evidence to the Tribunal. She said that her son Timothy, in respect of whom the child support payments are sought, has attended Trinity Grammar School since kindergarten and that it had always been her and the Applicant’s intention that he continue to attend that school.
15. She described having received correspondence from the school advising that fees were in arrears and that the Applicant had told the school that he would not pay the fees any more. She said she came to an arrangement with the school, at her suggestion, that she lodge a guarantee amount of $5,000 for future fees. She said she has had to get a second mortgage on her house to fund $30,000 of arrears and projected fees.
16. Mrs Weekes said that she has relied on the change of assessment decision made by the Respondent on 23 March 1999 and, in particular, showed it to the Bank when she obtained the second mortgage in order to show her capacity to repay the loan.
Consideration
17. The reasons given by the Applicant for his delay in lodging an objection to the Respondent’s decision of 23 March 1999 were the pressure of his work, his confusion about the difference between lodging an objection and making a change application and the failure of his solicitor to pursue the matter. As to the first of these reasons, I note that the Applicant found the time to make 2 change applications throughout the relevant period and had numerous telephone contacts with the Respondent over that time. His confusion as to the Respondent’s procedures should have been alleviated to some extent by the involvement of his solicitor, who made representations on his behalf in relation to an extension of time for the making of an objection but did not actually apply for that extension. I also note that the Applicant sent to the Respondent a document titled “Notice of Objection to Decisions” dated 5 March 2001 which purported to object to the decision of 23 March 1999 (document T12). The Respondent replied to the Applicant on 29 May 2001 advising that he was required to seek an extension of time given that more than 28 days had elapsed since the date of the decision objected to (document T13). No action was taken by the Applicant in response to that advice. I note that the Applicant is a medical practitioner and an educated person. I have no reason to conclude that the advice provided to him by the Respondent in its letter of 29 May 2001 was beyond his understanding.
18. In addition, in a letter dated 24 September 2001 from the Respondent to the Applicant concerning his application to change the assessment (document T15) the Respondent advised the Applicant of his right to object to decision.
19. The Applicant gave no evidence of his dealings with his solicitor other than to say that the solicitor did not “follow through” and he was very disappointed with him.
20. As to whether the Respondent was on notice of the Applicant’s dissatisfaction with its decision of 23 March 1999, it is clear, given the Applicant’s regular telephone and other contact with the Respondent, and given the action he has taken in the Local Court, that it was aware of his disagreement with the decision. The Respondent gave no evidence of any particular prejudice to it should the matter be reopened.
21. I am concerned, however, with the possible prejudice to Mrs Weekes who continues to await a resolution of the matter, paying interest on the amount borrowed by her for school fees. I consider that matters with which the Child Support Act is concerned, that is, the maintenance and support of children, require a degree of certainty that allows parents to plan for the financial support of their children. To enable a decision on which a parent has relied in that planning to be reopened some years after it was made creates significant prejudice to the parent and the child and potentially to others in a similar position.
22. As to the question of the merits of the substantive application, I note that the Applicant has sought a change of assessment on two occasions, in addition to his lodgement of an objection in May 2001. While the first of those was incomplete and therefore not considered by the Respondent, the second application was considered and denied. Document T14 is a Notice of a Decision with reasons in relation to the Applicant’s request for a decrease in the annual rate of child support to be paid by him for the period 1 July 1997 to 30 June 2000. That Notice of Decision canvasses all reasons for change of the assessment put by the Applicant and is a persuasive analysis of the matters raised by him. On the face of it, it does not seem that he has strong grounds to change the assessment. However, I am also mindful that the Applicant has made an application to the Local Court for a departure from his child support assessment and will have an opportunity to expand on his reasons there.
23. For the reasons outlined above I affirm the decision under review.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell
Signed: Neil Glaser
AssociateDate of Hearing 1 April 2004
Date of Decision 30 April 2004
Representative for the Applicant Mr Weekes (Self-represented)
Advocate for the Respondent Jean Cuthbert
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