Yusef and Child Support Registrar (Child support)

[2018] AATA 4646

Yusef and Child Support Registrar (Child support) [2018] AATA 4646 (9 November 2018)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2018/PC014957

APPLICANT:  Miss Yusef

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                09 November 2018

APPLICATION:

An extension application made on 4 September 2018 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 5 October 2017 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 – no 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. On 4 September 2018, Miss Yusef lodged an application with the Administrative Appeals Tribunal (the Tribunal) for an extension of time for review of a child support decision made on 5 October 2017.  The matter was considered on 9 November 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 Department of Human Services, Child Support (the Child Support Agency).

2. Miss Yusef and [Mr A] are the parents of [Child 1] (born July 2015).  [Mr A] is the parent liable to pay child support under the assessment.

3. From 27 June 2016, [Mr A] was assessed to pay child support of $414 per annum based on a 2014-15 derived income amount of $14,918 for [Mr A] and a 2014-15 derived income amount of $13,909 for Miss Yusef.

4. On 27 April 2017, Miss Yusef applied for a change to the administrative assessment and on 18 July 2017 the Child Support Agency made the decision to change the assessment so that for the period 27 April 2017 to 31 July 2019, [Mr A’s] adjusted taxable income was set at $35,715.

5. This was done to reflect the income, property and financial resources of [Mr A] (the ground commonly referred to as Reason 8A).

6. On 9 August 2017, Miss Yusef objected to this decision and on 5 October 2017 the Child Support Agency allowed the objection (the objection decision) and made the following decision:

   ·     for the period 27 April 2017 to 30 June 2019 [Mr A’s] adjusted taxable income is set at $57,432.

7. This was also done to reflect the income, property and financial resources of [Mr A] (Reason 8A).  The effect of the objection decision was to increase the arrears owed by [Mr A] by an amount of $1,587.01.

8. The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (the Act) and the Child Support (Assessment) Act 1989 (the Assessment Act).

9. The issue which arises in this case is whether or not to grant Miss Yusef’s request for an extension of time to submit an application for review of a child support 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. Subsection 29(2) of the Administrative Appeals Tribunal Act 1975 establishes 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. Miss Yusef was advised by the Child Support Agency about the outcome of the objection decision in a letter dated 5 October 2017 and under provisions of the Evidence Act 1995 she was therefore taken to have been served with written notice of this decision by 18 October 2017.  Given Miss Yusef lodged her application more than 28 days after she was served with notice, 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 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 Miss Yusef’s application for an extension of time on 4 September 2018 in relation to the objection decision made on 5 October 2017, of which she was notified by post, is approximately 293 days out of time.

2. In seeking an extension of time, Miss Yusef states as the reason for the delay that, “I thought I had filled the form out before” and she was therefore “waiting for a reply.”

3. Miss Yusef goes on to say that she contacted the Child Support Agency to find out why she had not heard more about her application.  She thought it may have been lost in the mail.

4. Miss Yusef has not provided any evidence to support her assertion that she had previously applied to the Tribunal for a review of the objection decision made on 5 October 2017.

5. The notification of the objection decision provided by the Child Support Agency dated 5 October 2017 outlines what to do if Miss Yusef disagreed with the decision.  This included asking the Tribunal to undertake a review “within 28 days from the date you receive this letter.”  The words “within 28 days” are in bold which, in the view of the Tribunal, gives a clear indication of the importance of this timeframe.

6. The Tribunal notes in evidence that Miss Yusef contacted the Child Support Agency on 8 November 2017 and was advised the objection decision had been finalised.  She was informed to contact the Tribunal about any application she may have made.  Miss Yusef next contacted the Child Support Agency about this matter on 30 April 2018 and requested a form so she could apply to the Tribunal for a review of the objection decision.

7. It appears, based on the evidence provided by the Child Support Agency, that Miss Yusef took the matter no further until making her application to the Tribunal on 4 September 2018.

8. The Tribunal finds Miss Yusef has not provided a reasonable explanation for the significant delay in applying for a review.   The Tribunal finds Miss Yusef rested on her rights.

Merits of the application

1. Miss Yusef is seeking a review of an objection decision which varied the income used to assess the amount of child support payable by [Mr A].

2. Miss Yusef lists several reasons why she feels the objection decision was incorrect.  She said [Mr A] had not lodged a tax return for several years and lived above his means.  She also said that he failed to provide information to the decision maker.

3. In making any determination to depart from an administrative assessment, the Child Support Agency must first find a ground for departure. These grounds are listed in the Assessment Act and in this case it was made on the basis of [Mr A’s] income, property and financial resources.

4. The Tribunal notes that [Mr A] did not provide a response to the objection made by Miss Yusef.  During the original decision process, however, he told the Child Support Agency he worked for [a business] as a contractor.  [Mr A] said he worked under his company name and was paid $600 twice per month as an advance on commissions.  He said he also received a carer payment in addition to this income.

5. The Child Support Agency attempted to obtain further details relating to [Mr A’s] employment from [a business] but was not successful.  In setting his income for the purposes of child support the Child Support Agency therefore relied upon information obtained from his various bank accounts.  Based on funds credited to his business account, the Child Support Agency determined that [Mr A] would receive an average net income totalling approximately $28,072.  To earn this net income the Child Support Agency calculated [Mr A] would require a gross income of approximately $30,500 and added this to his carer payment of $26,932 to reach a total income of $57,432.

6. A child support assessment is generally calculated using a parent’s most recent taxable income.  In certain circumstances, for example, when taxable income may not provide a fair reflection of the parent’s ability to provide child support, the law allows a decision about income to be based on the evidence available.  This was the approach taken in this case.

7. The Tribunal acknowledges Miss Yusef’s concerns in relation to the unsatisfactory nature of the evidence, however, the Tribunal is satisfied the Child Support Agency has appropriately considered all the relevant information available at the time in setting [Mr A’s] income.

8. The test of merit has alternatively been expressed as whether, were it to proceed, the application for review “would have good prospects of success” (Smith and Commissioner of Patents [2012] AATA 60 at [29]–[31]).

9. Given no new evidence has been provided by Miss Yusef, the Tribunal finds her application for review would not have good prospects of success on the ground of [Mr A’s] income, property and financial resources.  The Tribunal therefore considers Miss Yusef’s application has little merit.

Potential prejudice to [Mr A] and the wider public

1. [Mr A] should ordinarily be able to rely on the child support assessment once the period for objection has passed.  Given Miss Yusef is more than 290 days late in making her application, it would be reasonable for [Mr A] to consider the objection decision was final.  The Tribunal finds [Mr A] would be significantly disadvantaged if an extension of time to lodge an objection was granted.

2. The Tribunal must also consider 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 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 believes there would be significant prejudice to the general public if an extension of time to lodge an objection was granted.

Fairness in granting an extension of time as between Miss Yusef and other persons in similar positions

1. The Child Support Agency notifies parties that they can seek a review of decisions with the Tribunal 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.  The Tribunal finds that it would not be fair to others to grant Miss Yusef an extension of time in view of the statutory timeframe which applies and the unsatisfactory explanation for the extensive delay in applying for a review.

CONCLUSION

1. It is the view of the Tribunal that Miss Yusef has not provided a satisfactory explanation for the delay in applying for a review of the objection decision and that she rested on her rights.  The Tribunal could also find little merit to her application.

2. Having carefully weighed the various factors which must be considered, the Tribunal finds it would not be proper to grant an extension of time to seek review of the objection decision made on 5 October 2017.  Accordingly the extension application is refused.