Yasser and Child Support Registrar (Child support)

[2020] AATA 879

Yasser and Child Support Registrar (Child support) [2020] AATA 879 (5 February 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/HC017133

APPLICANT:  Mr Yasser

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member M Baulch

DECISION DATE:  5 February 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – refusal to grant an extension of time to object – no satisfactory explanation for the delay in lodging the objection late – some prospects of objection succeeding – the extension of time should not be granted - decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted 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 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. From 10 November 2003 until 21 October 2015 the Department of Human Services – Child Support (the Department) made assessments of child support under which Mr Yasser was liable to pay child support to Ms [A] in respect of their child, who was born in 1997.

3. On 29 April 2013, a departmental decision maker decided to make a determination to depart from the administrative assessment of child support and set Mr Yasser’s adjusted taxable income at $77,212 from 1 February 2013 until a child support terminating event occurred.

4. Mr Yasser had a right to object to the Department’s decision. Section 81 of the Child Support (Registration and Collection) Act 1988 (the Act) provides that an objection must be in writing and “must be lodged by a person within 28 days after a notice of the decision is served on the person”. 

5. Mr Yasser made a written objection on 17 June 2019.  His objection was out of time.  He also lodged an application for an extension of time within which to lodge his objection.  On 29 July 2019, a departmental decision maker decided to refuse Mr Yasser’s application to extend time (the decision under review).  It is from that decision that Mr Yasser applied to this tribunal, on 13 August 2019, seeking an independent review.

6. A hearing into the application for review was held by the tribunal on 5 February 2020. Mr Yasser discussed the application for review with the tribunal in person and gave sworn evidence during the hearing. The tribunal was assisted by the services of an Arabic interpreter. A representative of the Child Support Registrar did not participate in the hearing. The tribunal had before it relevant documents prepared by the Department pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (174 pages), copies of which Mr Yasser confirmed he had received prior to the tribunal hearing.  Also before the tribunal was additional material lodged by Mr Yasser, labelled folios A1 to A5.

ISSUES

1. The issue for me to determine in this matter is whether or not Mr Yasser should be extended time within which to make an objection to a decision of 29 April 2013 to make a departure determination that increased his adjusted taxable income that applied to the child support assessment.

CONSIDERATION

1. The Act offers no direction or guidance on how the decision on an extension of time application should be made.  I had regard to the general 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. There is no evidence to demonstrate when Mr Yasser received notification of the decision made on 29 April 2013.  However, it is clear, given the passage of time, that Mr Yasser is some six years late in making his objection.

2. Mr Yasser’s evidence was that he was unaware that the decision of 29 April 2013 was made.  He explained that, once he was aware of the decision after talking to the Department by telephone in 2016, it took him three years to make his objection because of the language barriers he faces.  He cannot read the letters the Department sends him because of those language difficulties and he has been a sick man.

3. The file notes indicate that most of Mr Yasser’s contacts with the Department by telephone, from 2016 onwards, occurred with the assistance of [Mr B] (possibly his nephew), a person called [Ms C] or an Arabic interpreter.  On 9 July 2018, the Department specifically advised Mr Yasser, via [Ms C], of his right to object to the decision of 29 April 2013.  Mr Yasser’s objection was not made until 17 June 2019; almost one year later.

4. I was not satisfied that Mr Yasser’s difficulties with the English language satisfactorily explain the delay in him objecting and was not persuaded that Mr Yasser has provided a satisfactory explanation of the delay in making his objection.  While an acceptable explanation for the delay is not an essential factor to be established in order for the discretion to be exercised in Mr Yasser’s favour, its absence and the protracted length of the delay weighs heavily 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. Mr Yasser disputes that his income was the amount set by the decision against which he seeks to object.  Mr Yasser stated that he still has bank account and tax records and, were his objection allowed to proceed, would be able to put forward evidence to support his case.

3. The making of a departure determination requires the exercise of a discretion, and different decision makers may view a particular case differently.  Given there is discretion involved in the making of departure determinations, it is difficult for me to discount that Mr Yasser’s substantive objection may have some merit.

Prejudice to the other parent

1. Ms [A] 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. I noted that the delay in lodging the objection is considerable.  In meeting the objection I suspected that Ms [A] may face difficulty in recalling events and finding evidence relevant to the issues that would appear to be in dispute.  Regardless, I did not give potential prejudice to Ms [A] in this regard any particular weight.

3. 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 Yasser 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 did, however, place weight on considerations of fairness between Mr Yasser and other persons in a like position by giving due regard to the existence of a statutory time limit for lodging objections. 

Conclusion

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

2. 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 Yasser’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 consider that Mr Yasser was verbally notified of the decision and his opportunity to object at least as early as 2018, and I can identify no factors which persuade me that the ordinary time limit should not apply to him.

3. Having considered the matter, I declined to exercise the discretion to extend time to allow Mr Yasser to object to the decision made on 29 April 2013.  Therefore, and for these reasons, I decided to affirm the decision under review.

DECISION

The decision under review is affirmed.