Yarranton and Child Support Registrar (Child support)

[2023] AATA 4698

Yarranton and Child Support Registrar (Child support) [2023] AATA 4698 (1 November 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/HC026250

APPLICANT:  Mr Yarranton

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member M Baulch

DECISION DATE:  1 November 2023

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – extension of time to object - no satisfactory explanation for delay – 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. The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable by one separated parent to the other.  It uses a statutory formula which contains variables such as the parents’ adjusted taxable incomes, the ages and number of children, and their percentages of care. 

2. Mr Yarranton and Ms Yarranton are the parents of three children in respect of whom Services Australia – Child Support (Child Support) has made assessments under which Mr Yarranton is liable to pay child support to Ms Yarranton.

3. On 14 December 2022, Child Support made a departure determination for the period 14 August 2022 to 30 November 2023, such that Mr Yarranton’s liability to pay child support was determined on an adjusted taxable income he was assessed as capable of earning, being $60,866, rather than his actual income of $0.  The decision maker also decided to set Ms Yarranton’s adjusted taxable income at $50,946.

4. Mr Yarranton lodged an objection to that decision on 9 May 2023.  Child Support asserts that his objection was out of time.  He also lodged an application for an extension of time within which to lodge his objection.  On 1 June 2023, a Child Support decision maker decided to refuse Mr Yarranton’s application to extend time (the decision under review) and it is from that decision that Mr Yarranton applied to this Tribunal seeking an independent review.

HEARING

1. When he made his online application for review with the Administrative Appeals Tribunal (the AAT) on 14 June 2023, Mr Yarranton indicated that he would prefer to attend the hearing in person, rather than have a hearing by either telephone or video conference.  On 6 October 2023, the AAT wrote to Mr Yarranton as follows:

   NOTICE OF HEARING

   Your application for review will be heard on:

   Date:    Wednesday, 1 November 2023
   Time:    11:30 AM (We have allowed 60 minutes for the hearing)
   Place:   Edward Braddon Building
             Commonwealth Law Courts
             39-41 Davey Street
             HOBART TAS 7000

   Letters detailing the above information were sent to both the postal address and the email address provided by Mr Yarranton when he made his application for review.

2. On 31 October 2023, the AAT sent Mr Yarranton an SMS text as follows:

   Reminder: Your AAT hearing is set for 11:30, Wednesday, 1 November 2023.  Please check the hearing invitation to confirm details.  If your hearing is by telephone, the AAT will call you.  Please answer any unknown or private numbers during the time of the hearing.  You must be present for the hearing even if the Member has approved a representative to speak on your behalf. Any questions, re-schedule requests or withdrawal of applications, call 1800 228 333.  DO NOT REPLY - automated message.

   The text message was sent to the mobile telephone number provided by Mr Yarranton when he made his application for review.

3. I was satisfied that Mr Yarranton was given proper notice of the hearing that was scheduled to be held on 1 November 2023 at 11.30 am. Mr Yarranton did not attend the AAT premises on 1 November 2023. Pursuant to paragraph 40(1)(b) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), I proceeded with the hearing in the absence of a party who has reasonable notice of the proceedings.

4. A representative of the Child Support Registrar (the Registrar) did not participate in the hearing. I had before me documents prepared by Child Support pursuant to sections 37 and 38AA of the AAT Act (499 pages); copies of which the Registrar had sent to Mr Yarranton prior to the Tribunal hearing.

ISSUE

1. The issue for me to determine in this matter is whether or not Mr Yarranton should be extended time to object to the decision of 14 December 2022 to make a departure determination for the period 14 August 2022 to 30 November 2023, such that Mr Yarranton’s adjusted taxable income was set at $60,866 and Ms Yarranton’s adjusted taxable income was set at $50,946.

CONSIDERATION

1. The legislation offers no direction or guidance on how the decision on an extension of time application should be made.  I had regard to the relevant 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.

2. 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 sets out a clear explanation of the public policy considerations attaching to statutory time limits.

Reasons for the delay in objecting

1. Child Support wrote to Mr Yarranton to advise him of the decision in respect of which he seeks to object on 14 December 2022. The documents show that the letter was sent to Mr Yarranton by regular post. Sections 160 and 163 of the Evidence Act 1995 provide that if the Commonwealth sends a letter by prepaid post, it is presumed to have been received by the addressee on the 12th working day from the date it was written, unless evidence is adduced sufficient to raise doubt of the presumption of delivery.  There is no evidence that Mr Yarranton had problems with mail delivery, and I found that the letter was delivered on 2 January 2023 (given that 1 January 2023 was a public holiday).

2. Pursuant to section 81 of the Child Support (Registration and Collection) Act 1988, Mr Yarranton had 28 days to object to that decision, which means his objection was due by 30 January 2023.  He made his objection on 9 May 2023 and is thus 100 days late in making the objection.

3. Mr Yarranton did not avail himself of the opportunity to be heard in this matter, having failed to attend the Tribunal hearing.  Thus, Mr Yarranton has not provided a satisfactory explanation for why his objection was made late.

4. An acceptable explanation for the delay is not an essential factor to be established in order for the discretion to be exercised in Mr Yarranton’s favour.  However, the failure to provide an acceptable explanation for the delay does weigh against granting the extension of time.

Merit of the substantive objection

1. To grant an application to extend time if there is no merit in the substantive objection would not be an appropriate exercise of the discretion to extend time.

2. A parent can make an application to Child Support for a change to the administrative assessment based on the statutory formula in the special circumstances of their case – referred to in the Act as a departure determination.  Ms Yarranton made such an application, on 14 August 2022. 

3. The application was granted because the decision maker was satisfied that the child support assessment was unfair due to Mr Yarranton’s capacity to earn, rather than his actual income.  This ground for a departure determination may exist if section 117(7B) of the Act is satisfied, which provides:

   (7B) In having regard to the earning capacity of a parent of the child, the court may determine that the parent's earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied that:

   (a)  one or more of the following applies:

   (i)  the parent does not work despite ample opportunity to do so;

   (ii)  the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full-time work for the occupation or industry in which the parent is employed or otherwise engaged;

   (iii)  the parent has changed his or her occupation, industry or working pattern; and

   (b)  the parent's decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of:

   (i)  the parent's caring responsibilities; or

(ii)  the parent's state of health; and

(c)  the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child.

1. There is no evidence that Mr Yarranton’s decision not to work was due to the state of his health or his caring responsibilities, or that his decision was for a purpose other than to reduce his child support liability.  In those circumstances, it is difficult to see how Mr Yarranton’s substantive objection has merit. 

2. Nevertheless, a decision to make a departure determination under Part 6A of the Act is a discretionary decision and it is thus not possible to dismiss the chance that Mr Yarranton’s objection could potentially have some merit.

Prejudice to the other parent

1. Ms Yarranton has not been invited to be added as a party to this review and has not had the opportunity to set out what prejudice she may face if the extension of time is granted. 

2. In meeting the objection, I suspected that Ms Yarranton would face no difficulty in recalling events and finding evidence relevant to the matters that would appear to be in dispute.  I did not give potential prejudice to Ms Yarranton in this regard any particular weight.

3. If Mr Yarranton were successful, were his objection allowed to proceed, the result could be that Ms Yarranton might have incurred a child support overpayment.  This could be viewed as an outcome prejudicial to Ms Yarranton’s interests.  However, if the outcome was the result of the correct or preferable decision being made, I did not view the potential prejudice as being significant in this case.

4. I did not consider that prejudice to the other parent is an influential factor in my consideration of whether to exercise the discretion to extend time in this case.

Prejudice to the general public and considerations of fairness as between Mr Yarranton and other persons otherwise in a like position

1. I identified no factors in this matter that make potential prejudice to the general community a material consideration. 

2. I gave due regard to the existence of a statutory time limit for lodging objections.  As a consequence of this regard, I placed weight on considerations of fairness between Mr Yarranton and other persons in a like position. 

Conclusion

1. As a general rule, statutory time limits should be applied unless the decision maker is positively satisfied that it is proper to exercise the discretion to extend time.

2. I have found that Mr Yarranton has not provided a satisfactory explanation for his delay in objecting.  This weighs significantly against exercising the discretion to extend time.  The only factor that weighs in favour of extending time is that the decision being a discretionary one, I cannot rule out Mr Yarranton’s substantive objection as potentially having merit, although that potential merit is not apparent, and Mr Yarranton has not taken advantage of the opportunity to explain to me what merit he believes underpins his objection.

3. In this matter, I am not persuaded that there is sufficient justification to exercise the discretion to extend time.  While I do not discount the possibility that Mr Yarranton’s substantive objection might have some merit, I consider that the length of the delay and the absence of any acceptable reason for the delay in making the objection outweighs this.  I can identify no factors which persuade me that the ordinary time limit should not apply to Mr Yarranton.

4. Therefore, and for these reasons, I decided to affirm the decision under review.

DECISION

The decision under review is affirmed.