ZNQD and Child Support Registrar (Child support second review)

[2016] AATA 1011

ZNQD and Child Support Registrar (Child support second review) [2016] AATA  1011 (9 December 2016)

Division	GENERAL DIVISION
File Number	2016/2852
Re	ZNQD
APPLICANT
And	Child Support Registrar
RESPONDENT
And	BNPV
OTHER PARTY

DECISION

Tribunal	Senior Member A C Cotter
Date	09 December 2016
Place	Brisbane

The Tribunal affirms the decision under review.

..........................[Sgd]..............................................

Senior Member A C Cotter

Catchwords

PRACTICE AND PROCEDURE – extension of time for lodgement of application for review – prescribed limit as a general rule – discretion to extend lodgement period – Hunter Valley factors considered – explanation for delay – awareness of appeal rights - prospects of success – prejudice to other parties – fairness to others in similar position to applicant - decision under review affirmed – no extension of time granted

Legislation

Child Support (Assessment Act) 1989 (Cth) ss 98J, 98R
Administrative Appeals Tribunal Act 1975 (Cth) s 29

Cases

Hunter Valley Developments Pty Limited & ors v The Honourable Barry Cohen, Minister of Home Affairs and Environment

[1984] FCA 176

Comcare v A’Hearn (1993) 45 FCR 441

Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451

Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516

REASONS FOR DECISION

Senior Member A C Cotter

09 December 2016

INTRODUCTION

1. On 19 May 2016, the Social Services & Child Support Division (“SSCSD”) of this Tribunal refused the Applicant’s request for an extension of time within which to seek a first review of an objection decision made by the Child Support Registrar (“Registrar”).

2. Dissatisfied with that refusal, the Applicant has sought a review of that decision by the General Division of the Tribunal.

3. For the reasons which follow, I believe that the SSCSD’s decision was correct, and should be affirmed.

   BACKGROUND

4. The Applicant and the Other Party are the father and mother respectively of a boy who was born in May 2004.[1]

   [1] Exhibit 1, T Documents, T 9, page 25, Details of Objection Decision dated 9 January, 2016.

5. A child support case in respect of the child has been registered with the Registrar since June 2004. The Other Party has the primary care of the boy.[2]

   [2] Ibid.

6. In September 2015, the Other Party applied for a change of assessment in relation to child support on the basis that the then current assessment did not correctly reflect the Applicant’s income, property and financial resources.[3]

   [3] Ibid, pages 25 and 26.

7. On 4 November 2015, the Child Support Agency (“CSA”) made a change of assessment determination.[4]

   [4] Exhibit 1, T Documents, T 6, page 21, letter from Department of Human Services to the Applicant dated 4 November 2015.

8. The Applicant lodged an objection to the CSA’s decision on 13 November 2016.[5]

   [5] Exhibit 1, T Documents, T 7, page 22, letter from the Applicant to Child Support Agency (“CSA”) dated 13 November 2015.

9. An Objections Officer considered that the Applicant withheld information by providing no response to her particular questions. As a result, she was unable to determine the Applicant’s exact income or financial circumstance. She was satisfied, however, that the Applicant was in receipt of an income and financial resources which were significantly more than the income evidenced by his PAYG statements of $52,000.00 or the provisional income used in the assessment of $48,122.25. Based on the Applicant’s discretionary spending on his credit card, the officer was satisfied that he had the capacity to meet child support at the maximum rate payable for one child, being approximately $21,603.00 per annum (or $1,800.25 per month). That was significantly greater than the then-current assessment.[6]

   [6] Exhibit 1, T Documents, T 9, pages 29-30, Details of Objection Decision dated 9 January 2016.

10. On 9 January 2016, the decision was made to set aside the original decision of 4 November 2015 and replace it with a decision that “the annual rate of child support payable by (the Applicant) is set at $21,603.00 for the period 3 September 2015 to 31 August 2018”. That resulted in arrears of $1,928.91 as a result of the start date of the decision.[7] A letter was sent to the Applicant by post the same day, informing him of the decision and advising that if he disagreed with the decision, he could ask the Administrative Appeals Tribunal (“AAT”) to review it, but that he must do so within 28 days of receiving the letter.[8]

    [7] Ibid, pages 31-32.

    [8] Exhibit 1, T Documents, T 9, page 24, letter from the Department of Human Services to the Applicant dated 9 January 2016.

11. On the same day, the Objections Officer telephoned the Applicant (who was overseas at the time) and advised him of the decision. He responded that he was not going to pay the amount of the decision and would consult his lawyer on his return to Australia.[9]

    [9] Exhibit 1, T Documents, T 11, page 36, note of telephone conversation, Objection Officer and Applicant, 9 January 2016.

12. The Applicant contacted the Department on 13 January 2016 and reiterated that he disagreed with the decision. He said that no consideration was given to how he would meet his payments of $1,800.00 per month when he took home $2,800.00 per month after tax.[10] In a later call that day with the Objection Officer’s Team Leader, the Applicant said: that he could not pay the amount in question; that he was now employed by his partner; and that he was drawing a wage of $1,000.00 per week. He was advised that he should lodge an appeal with the AAT and was given the contact phone number.[11]

    [10] Exhibit 1, T Documents, T 12, page 37, note of telephone conversation, 13 January 2016.

    [11] Exhibit 1, T Documents, T 13, page 38, note of telephone conversation, 13 January 2016.

13. On 27 January 2016, the Applicant again indicated in another telephone call with the Team Leader that he was not happy with the decision. He was again advised (twice) of his AAT appeal rights and was again given the contact phone number.[12]

    [12] Exhibit 1, T Documents, T 14, page 39, note of telephone conversation, 27 January 2016.

14. On 29 February 2016, the Applicant indicated in a telephone conversation that he was no longer employed, and that he had a million dollar debt with the Australian Taxation Office (“ATO”).[13]

    [13] Exhibit 1, T Documents, T 15, page 40, note of telephone conversation, 29 February 2016.

15. On 7 March 2016, the Applicant lodged a form with the CSA, “Application to change your assessment – Special Circumstances” (“Special Circumstances application”).[14]

    [14] Exhibit 1, T Documents, T 16, pages 41-62, Application to change your assessment – Special Circumstances, dated 1 March 2016.

16. In a telephone call with a CSA officer on 17 March 2016, the Applicant was told that the Special Circumstances application did not constitute substantially new evidence from that considered in the objection decision of the preceding January. Accordingly, it would be rejected under either s 98J(2) or s 98R of the Child Support (Assessment) Act 1989 (Cth). He was again advised of his AAT appeal rights and the 28 day timeframe for doing so. He was also advised that he was already out of time to lodge an application with the AAT, but that he may be able to apply for leave to apply out of time at the same time as lodging his appeal (although no guarantees could be given). At the end of the call, he advised that he wished to withdraw his Special Circumstances application in order to make an application to the AAT.[15]

    [15] Exhibit 1, T Documents, T 17, pages 63-64, note of telephone conversation, 17 March 2016.

17. On 30 March 2016, the Applicant applied to the SSCSD for review of the objection decision of 9 January 2016.[16]

    [16] Exhibit 1, T Documents, T 18, page 65, letter from the Administrative Appeals Tribunal to the Department of Human Services dated 30 March 2016.

18. On 19 May 2016, the SSCSD refused the Applicant’s request for an extension of time.[17]

    [17] Exhibit 1, T Documents, T 2, page 3, decision of the Social Services & Child Support Division dated 19 May 2016.

19. Dissatisfied with the SSCSD’s decision, the Applicant has applied to the General Division of the Tribunal for a review of it.

    ISSUE FOR THE TRIBUNAL

20. The issue for determination is whether it is reasonable, in all the circumstances, for an order to be made extending the time within which the application for review may be lodged with the SSCSD.

21. Before I consider that question, it is worthwhile reflecting on the relevant statutory provisions and legal principles.

    THE LEGAL FRAMEWORK

22. Under s 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”), an application for review must generally be lodged within 28 days of the applicant receiving notice of the decision.

23. Section 29(7) of the AAT Act provides that the Tribunal may, on application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision, if the Tribunal is satisfied that it is “reasonable in all the circumstances to do so.” The Tribunal can grant an extension even if the time for making the application has expired.[18]

    [18] Administrative Appeals Tribunal Act 1975 (Cth), s 29(8).

24. A similar provision in the judicial review context was considered by the Federal Court in Hunter Valley Developments Pty Limited & ors v The Honourable Barry Cohen, Minister of Home Affairs and Environment.[19] In that case, Wilcox J stated that the prescribed period of 28 days for making an application is not to be ignored; “(i)ndeed it is the prima facie rule that proceedings commenced outside that period will not be entertained”.[20] His Honour then went on to distil some non-exhaustive guiding principles for the exercise of the court’s (or decision maker’s) discretion in such instances:

    (a)“It is a precondition to the exercise of discretion in his (or her) 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”.[21] However, this factor was qualified by the Full Federal Court in Comcare v A’Hearn, in which it was said that while it is to be expected that an explanation for delay will normally be given, as a relevant matter to be considered, there is no rule that such an explanation is an essential precondition.[22]

    (b)“Action taken by the applicant, other than by making an application for review under the Act (in question), is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished.”[23] It is important to distinguish between a person who, through non-formal means, has continued to make the decision maker aware that he or she  contests the finality of the decision (that is, who has not “rested on his (or her) rights”), and “a case where the decision maker was allowed to believe that the matter was finally concluded”.[24]

    (c)“Any prejudice to the respondent, including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension”.[25]

    (d)“However, the mere absence of prejudice is not enough to justify the grant of an extension”.[26] In that context, public considerations often intrude to limit where an extension may be granted: a “delay which may result, if the application is successful, in the unsettling of other people… or of established practices… is likely to prove fatal to the application”.[27]

    (e)“The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted”.[28]

    (f)“Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the exercise of (the) discretion”.[29]

    [19] [1984] FCA 176. (Wilcox J).

    [20] Ibid, [18].

    [21] Ibid, [18]. Case references have been omitted.

    [22] (1993) 45 FCR 441, [15] (Black CJ, Gray and Burchett JJ).

    [23] Hunter Valley Developments Pty Limited & ors v The Honourable Barry Cohen, Minister of Home Affairs and Environment [1984] FCA 176, [19].

    [24] Ibid, [19].

    [25] Ibid, [20].

    [26] Ibid, [21].

    [27] Ibid, [21].

    [28] Ibid, [22].

    [29] Ibid, [23].

25. As mentioned earlier, these factors are intended as a guide and are by no means exhaustive. In such extension of time applications, the Tribunal should weigh together all relevant factors,[30] and in reaching a conclusion, “will be guided by what the justice of the case requires”.[31] 

    [30] See Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451 (Katz J).

    [31] Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516 (Hill J), 4527.

    CONSIDERATION

26. Having outlined a number of the factors that a court or tribunal may take into account in applications for the extension of time, I turn to consider the matters specifically relevant in this instance.

    Length of delay

27. In his application for first review, the Applicant stated that he received the decision notice on 21 January 2016.[32] He confirmed that in his oral evidence at the hearing before me. On that basis, I calculate that the time for applying for review by the SSCSD expired on 18 February 2016. That means that when the application for first review was lodged on 30 March, it was 41 days, or almost six weeks, overdue.

    [32] Exhibit 1, T Documents, T 19, page 67, Application for Review Form (AAT first review of a child support decision) dated 22 March 2016.

28. On its face, a roughly six week delay might not be thought as overly excessive, especially when the Applicant consistently maintained to the Registrar his disagreement with the substantive objection decision. However, that needs to be viewed in context. While the Applicant maintained to the Registrar his disagreement with the decision, there is nothing in the material to suggest that the Other Party was made aware of that ongoing dissent; following the expiration of the appeal period, she was entitled to expect that there was finality with respect to the change of assessment application she first made in September 2015. The change of assessment application was of importance to her and her son, and had already been the subject of significant consideration with respect to both the initial decision in November 2015 and the subsequent objection decision of 9 January 2016.

    Explanation for delay and awareness of appeal rights

29. The Applicant offered several reasons for his delay in lodging his application for first review.

30. His “Application for Review Form (AAT first review of a child support decision)” gave as the reasons for delay the fact that his circumstances had changed dramatically since the decision notice was received, and that he had major eye surgery in December 2015 and was still experiencing problems with his left eye.[33]

    [33] Ibid.

31. In support of his Application for Second Review of Decision, the Applicant made the following statement as to why he claimed the SSCSD’s decision was wrong:

    Incorrect facts Taxible [sic.] income was not lodged by accountant Now is lodged!!

    Company in liquidation employment ceased February 11 – 2016 Now unemployed

    all my personal bank accounts locked down by ATO!!  Lodged on time with Child Support Agency by registered mail and totally ignored them  Put more information forward to Child Support Agency and told to contact AAT even though time limit twice now!!

    Please Note I have contacted AAT and Child Support Agency and have constantly been pushed from one to another without any resolve. [34]

    [34] Exhibit 1, T Documents, T 2, page 2, Application for Second Review of Decision dated 30 May 2016.

32. I do not consider that either of those documents provide sufficient explanation as to why the Applicant did not lodge his application for first review by the SSCSD within the prescribed time. The matters he raises, concerning the delay in lodging his tax returns and records and being deprived of access to his personal accounts, are more directed to the Registrar’s substantive decision, and the perceived lack of cooperation by the Applicant in the objection process. The same applies to the claimed change in circumstances post the objection decision. His eye operation was in December, whereas the appeal period expired on 18 February. No explanation was given as to why the ongoing eye condition prevented him from lodging an appeal, in circumstances where he had been able to engage with the CSA as regards the objection decision, and prepare and lodge both the Special Circumstances application and the application for first review. Further, no supporting medical evidence was produced by the Applicant.

33. At the hearing before me, the Applicant advanced a number of additional reasons as to why he did not lodge his appeal within time. Initially he said that he was not aware of his appeal rights. When questioned further during cross-examination, he said that did not recall why he did not lodge the appeal within the prescribed time. Later, he said that the reason he did not appeal within the prescribed time was because “lots of things were happening” at the time. Finally, he said that he did not appeal because someone at the CSA told him to lodge his Special Circumstances application, so he lodged that application instead of an application for review of decision with the Tribunal. I am not persuaded by any of those reasons.

34. From the chronology set out in the Background section above, it is clear that the Applicant was told of his AAT appeal rights on several occasions: in the letter that accompanied the objection decision of 9 January 2016, as well as in the objection decision itself; and in subsequent telephone conversations on 13 and 27 January 2016. During cross-examination, the Applicant was taken to each of those notifications, or the references to them; he did not dispute them. I therefore do not accept that he was not aware of his appeal rights.

35. Despite that consistent and express advice as to his appeal rights, the Applicant proceeded instead to lodge the Special Circumstances application with the CSA, rather than seek a review of the original decision. He said that he was advised to do so in a telephone conversation with a lady from the CSA on 1 March. While there is no record of a conversation on that date in the material before the Tribunal, there is a note of a conversation on 29 February 2016. However, it does not refer to any advice to lodge the Special Circumstances application instead of the application for first review. Indeed, it was explained to the Applicant again, in a telephone conversation on 17 March, that the new information he provided was not substantially different from that considered in the course of his objection, and that the appropriate course was to seek a review of the decision by the AAT. Contrary to what the Applicant contends, he was not constantly “pushed between” the AAT and CSA; there was consistent advice throughout that his rights of appeal lay with the AAT. Notwithstanding that, he took almost another two weeks to lodge his application for AAT first review.

36. The Applicant also offered the explanation that he did not lodge the appeal within time as “a lot of things were happening”. That did not prevent him from having calls with the CSA on 13 and 27 January. Nor did it prevent him from lodging, albeit after the expiration of the appeal period, his Special Circumstances application.

    Prejudice to the Respondent and the Other Party

37. It is conceded that no significant prejudice would be suffered by the Registrar if the extension of time were granted; as the administrator of the child support programme, the Registrar has no direct interest in the matter.[35] However, putting that aside, the Registrar contends that there are other implications for the public interest. In particular, it is said to be in the public interest that there is certainty in administrative decision making; any unnecessary delay detracts from that certainty. Further, in light of what the Registrar contends is the Applicant’s poor prospects of success, there would be additional public expense in the Registrar being represented in any ongoing proceedings.[36] 

    [35] Exhibit 6, Child Support Registrar’s Statement of Facts, Issues and Contentions, [44].

    [36] Ibid, [45].

1. For the Other Party, it was submitted that to grant the Applicant an extension of time would be to avoid the matter at hand, namely the welfare and needs of the son. Further, it was said that granting an extension would be a waste of time for those involved.

2. Having regard to what I have said already with respect to the delay and the Applicant’s failure to explain it, and in light of the doubts expressed below concerning the Applicant’s likely prospects of success on review, I agree with, and accept, the Registrar’s and the Other Party’s submissions on this aspect, as they relate to the prejudice that they may suffer if the extension were approved.

   Fairness to others in a similar position to the Applicant

3. The Registrar contends that a large number of applicants similarly seek review of decisions in relation to child support matters and are able to meet the statutory time limits for lodging appeals to the SSCSD. It is said that it would be unfair to them, and potential applicants, if the discretion to extend time were exercised in this instance.[37] Having regard to all the circumstances, I am inclined to agree with, and accept, that submission; there is nothing exceptional in the circumstances of this matter that would justify the Applicant being treated more favourably than others in his position.

   [37] Ibid, [47].

   Prospects of success

4. The Registrar contends that the Applicant’s application for review has no, or limited, prospects of success. It is said that the Applicant’s stated reason for seeking review is not compelling; it does not contend, or point to, factual errors made by the Objections Officer, other than to submit that there have been changes which have taken place since the decision was made.[38]

   [38] Ibid, [55]-[56].

5. The Applicant’s case appears to be twofold. First, he contended that the Objections Officer failed to consider key material that he submitted within the time required by her. Second, he said that his circumstances had changed “dramatically” since the objection decision was made.

6. With respect to the first ground, the Applicant referred me to what he described as the most important document before the Tribunal, namely a facsimile that he sent to the CSA on 11 December 2015. It attached two PAYG Payment Summaries, each recording gross payments to the Applicant of $52,000.00 for the 2014 and 2015 tax years, and a Reconciliation Report for his related company dated 3 December 2013, showing “where all company expenses are recorded in relation to my credit card”.[39]

   [39] Exhibit 2(d), facsimile, Applicant to the CSA dated 11 December 2015, with attachments.

7. Having read that material in light of the objection decision, I am not convinced that it would have changed the decision (assuming, for the moment, the Applicant’s assertion that it was not taken into account by the Objections Officer in making the decision). It is clear from the Objection Officer’s decision that she was already working on the premise that the Applicant’s gross income for each of the years in question was $52,000.00. Indeed, she specifically referred to the Applicant’s PAYG statements in that amount.[40] Second, the expenses charged to credit cards with which the Objections Officer was concerned were incurred during the period 26 July 2015 to 21 October 2015, whereas the reconciliation report produced by the Applicant was some two years earlier, in October/November 2013.[41] Further, that reconciliation predates by almost two years the commencement date of the period covered by the objection decision. For those reasons, I do not think that, even if the facsimile of 11 December 2015 had not been considered by the Objections Officer (on which I make no finding), it is doubtful that it would have altered significantly, if at all, the determination reached.

   [40] See Exhibit 1, T Documents, T 9, pages 26 and 30, Details of Objection Decision dated 9 January 2016.

   [41] See ibid, pages 27-28; Exhibit 2(d), facsimile, Applicant to the CSA dated 11 December 2015, with attachments.

8. As regards the second ground, the Applicant said that his circumstances had changed dramatically since he received the decision notice. He said that his tax returns were supposed to have been lodged by his pervious accountant, who had failed to do so. They had since been lodged by his new accountant. He said that his company had gone into liquidation and that he had ceased employment in February 2016. His bank accounts had been locked down by the ATO.[42]

   [42] Exhibit 1, T Documents, T 1, page 2, Application for Second Review of Decision dated 30 May 2016; and Exhibit 3, letter from the Applicant to the Tribunal dated 28 September 2016.

9. I am not convinced that the “new” information provided by the Applicant would significantly alter the objection decision. The Notices of Assessment provided by the Applicant for the 2013 to 2015 tax years disclosed his taxable income for those years as between $46,050.00 and $52,000.00,[43] which is not substantially different from the income figure on which the Objections Officer was working. She was aware that the Applicant had a large outstanding debt to the ATO and that his company had administrators appointed to it.[44] As a consequence, the Applicant told the Objections Officer that his income at that point was $0.[45] If anything, the new information, which included a tax computation estimate of $31,115.00 for the 2016 tax year, was better than anticipated.[46]

   [43] Exhibit 3(b), Notices of Assessment for the years ended 30 June 2013, 2014 and 2015.

   [44] See Exhibit 1, T Documents, T 9, pages 26 and 29, Details of Objection Decision dated 9 January 2016.

   [45] Ibid, page 27.

   [46] Exhibit 3(c), Tax Computation Estimate dated 14 September 2016.

10. Consequently, I do not believe that, based on the material and submissions which he lodged, the Applicant had reasonable prospects of success on the application for first review.

    Factors for consideration - overview

11. As I mentioned earlier, I do not believe that the Applicant’s delay, of close to six weeks, could be said to be excessive. However, that period needs to be viewed in the context of several other factors.

12. The starting point is the prima facie rule stated by Wilcox J, that proceedings commenced out of time will not be entertained. Further, one can infer from the relatively short timeframe within which appeals are to be lodged, that it was the legislature’s aim to promote certainty and finality within the decision making process.

13. The Applicant offered a number of explanations for the delay in lodging the application for first review. I did not find any of them compelling, for the reasons I have outlined already.

14. While the Applicant maintained contact with the CSA and continued to assert that the objection decision was incorrect, it does not appear that his attitude was made known directly to the Other Party, who was entitled to rely on the finality of the decision after the appeal period expired. That is particularly important in the present case, concerning the welfare and support of a young child, and considering the amount of time that had elapsed since the Other Party first made application for a change of assessment in September 2015.

15. While it is true that the CSA would not suffer any direct prejudice as a result of an extension being granted, the Registrar, as administrator of the child support programme, nevertheless has an interest in ensuring that certainty and finality are promoted, and that all applicants are treated consistently and fairly.

16. The utility of allowing an extension of time and subsequent hearing of the substantive first tier review application also has to be weighed up. Based on the material and submissions the Applicant relied upon, I consider that his prospects of success on the substantive application would have been negligible or at best, limited.

17. For those reasons, I do not consider that the extension of time should be granted.   

    CONCLUSION

18. Weighing up the various factors I have identified above, I am not satisfied that it would be reasonable, in all the circumstances, to extend the time for the Applicant to make his application for first tier review. I therefore consider that the SSCSD was correct in its decision to refuse an extension of time.

19. Accordingly, the decision under review is affirmed.

I certify that the preceding 56 (fifty -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter

........................[Sgd]................................................

Associate

Dated 09 December 2016

Date of hearing	18 November 2016
Applicant	In person (by telephone)
Advocate for the Respondent	Mr Rick McQuinlan (FOI and Litigation Branch, Department of Human Services)
Advocate for the Other Party	BNPV's brother