ZWHJ and Child Support Registrar (Child support second review)

ZWHJ and Child Support Registrar (Child support second review) [2020] AATA 2323 (16 July 2020)
Division:GENERAL DIVISION
File Number(s):2019/2481
Re:ZWHJ
APPLICANT

AndChild Support Registrar
RESPONDENT

AndYNVJ
OTHER PARTY

DECISION
Tribunal:A G Melick AO SC, Deputy President
Date:16 July 2020
Place:Hobart

The Tribunal sets aside the decision under review and substitutes it so that the extension of time is granted until the original date of application to the Administrative Appeals Tribunal Social Services and Child Support Division, being 13 December 2018.
...........................[sgd]..................................
A G Melick AO SC, Deputy President
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.
CHILD SUPPORT – application for extension of time – whether there is an acceptable explanation for the delay - possible merit of substantive application – extension of time granted
Legislation
Administrative Appeals Tribunal Act 1975
Child Support (Assessment) Act 1989
Child Support (Registration and Collection) Act 1988
Cases
Civic Tavern Pty Ltd and ACT Liquor Licensing Board (1993) 32 ALD 381
Grafton and Commonwealth (1988) 16 ALD 533;
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344
Johnson and Commonwealth of Australia [1990] AATA 1
Romeo and Secretary, Department of Social Security (1992) 26 ALD 248
REASONS FOR DECISION
A G Melick AO SC, Deputy President
16 July 2020

The Applicant seeks review by the General Division of the Administrative Appeals Tribunal (AAT2) of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) dated 10 April 2019.[1]
[1] T2, T documents, p 5.
The AAT1 refused to grant an extension of time for the Applicant to seek review of a decision of an objections officer of the Department of Human Services, Child Support dated 30 April 2018.[2]
[2] T104, T documents, p 700.
The Respondent adopted a neutral position and the Other Party (the OP) was prepared to consent to no child support payments being made whilst the Applicant had no income, but was not prepared to have the debt waived.
The Respondent set out the history and the relevant law in its detailed Statement of Facts Issues and Contentions which were not disputed by the Applicant or the OP. I am satisfied that they accurately set out the relevant matters and set them out with some minor modifications below.
FACTS
The Applicant and the OP are the separated parents of T (born July 2007).
A child support case was first registered in April 2009. The Applicant is liable to pay child support to the OP.
In 2015, the Applicant moved overseas, to a reciprocating jurisdiction in accordance with Schedule 2 of the Child Support (Registration and Collection) Regulations 2018. He continues to reside there.
On 16 March 2015, the Repsondent made a decision to depart from the assessment of child support on the basis that the Applicant’s adjusted taxable income for the period 1 January 2015 to 31 December 2016 was $162,900 (the original decision).[3] The Applicant was notified of this decision via ‘CSAOnline’.[4]
[3] T25, T documents, p 257.
[4] T26, T documents, p 258.
On 28 December 2017 the Applicant objected to the original decision.[5]
[5] T85, T documents, p 638.
An extension of time to lodge an objection was granted, and an objection decision was made on 30 April 2018.[6] The objections officer disallowed the objection because the Applicant had not provided any evidence to suggest his income is significantly different to the amount determined by the original decision maker.
[6] T104, T documents, p 700.
The Applicant was sent a copy of the objection decision under cover of a letter of the same date.[7]
[7] T106, T documents, p 706.
On 13 December 2018 the Applicant lodged an application for first review with the AAT1.[8] He was advised that he was required to lodge an application for extension of time, and did so on 20 December 2018.[9]
[8] T136, T documents, p 844.
[9] T138, T documents, p 853.
In a decision dated 10 April 2019, the AAT1 denied the Applicant’s extension of time request.[10]
[10] T2, T documents, p 5.
On 6 May 2019 the Applicant applied to the AAT2 for review of the AAT1 decision.[11]
[11] T1, T Documents, p 1.
GENERAL PRINCIPLES
The relevant law is contained in the:
(a) Child Support (Assessment) Act 1989 (the Assessment Act);
(b) Child Support (Registration and Collection) Act 1988 (the R&C Act); and
(c) Administrative Appeals Tribunal Act 1975 (the AAT Act).
Under section 29 of the AAT Act, an application for review must generally be lodged within 28 days of the Applicant receiving notice of the decision. However, in accordance with section 90 of the R&C Act, if the Applicant lives in a reciprocating jurisdiction an application for review must be lodged within 90 days of the Applicant receiving notice of the decision.
Section 91 of the R&C Act provides that if the period for applying for an AAT1 review has ended, a person may still make an application for review to the AAT1 that includes an extension of time application, despite the period ending. Subsection 91(2) of the R&C Act provides that the application for an extension of time must state the reasons for the person’s failure to apply for the review within the period.
Section 92 of the R&C Act provides that the AAT1 must consider the extension application and give reasons granting or refusing the extension of time application within 60 days.
Section 96A of the R&C Act provides that an application may be made to the AAT2 if a decision under section 92 of the R&C Act refusing an extension of time has been made.
In Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344, the Federal Court set out a series of factors that might be of relevance under similar provisions in the judicial review context.
In Hunter Valley, Wilcox J stated that the:
‘prescribed period of 28 days is not to be ignored... Indeed, it is the prima facie rule that proceedings commenced outside the period will not be entertained...’
In Johnson and Commonwealth of Australia [1990] AATA 1, Deputy President Todd had regard to six general principles enunciated by the Federal Court of Australia in Hunter Valley, and summarised those principles at [19]:
In determining the question of an extension of time, the Tribunal should weigh together all relevant factors:[12]
(i) ‘It is a prima facie rule that proceedings commenced outside the prescribed period will not be entertained. An extension of time will, however, be granted if it is proper to do so.
(ii) Consideration is to be given to the action taken by the applicant. Did he or she ‘rest on his or her rights’ so as to lead the decision maker to believe that the matter was concluded, or did he or she continue to make the decision maker aware that the decision was being contested?
(iii) Consideration should be given to whether any prejudice to the respondent would be caused by the grant of an extension.
(iv) There being no real prejudice to the respondent, consideration must be given to whether there will nevertheless be a wider prejudice to the public in terms of disruption to established practices..
Consideration of the merits of the substantial application should be made to see if these indicate that an extension of time should be granted.
(vi) Finally, consideration should be given to whether it is fair as between the applicant and other persons in a like position to grant the extension of time’
[12] Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451.
The Respondent therefore considered and the Tribunal agrees that the relevant factors in this matter are:
·Length of delay;
·The Applicant’s awareness of appeal rights and explanation for delay;
·Prejudice; and
·Prospects of success.
CONTENTIONS
Length of delay
On 30 April 2018 the Respondent issued a notice of decision and reasons of the objection decision to the Applicant by post.[13]
[13] T106, T documents, p 706.
In accordance with s29(1) of the Acts Interpretation Act 1901, the Applicant is taken to have received the letter ‘at the time at which the letter would be delivered in the ordinary course of post’. The Australia Post website indicates delivery would be expected to take 6-8 business days. As such, absent evidence to the contrary, the Respondent submitted that the Applicant should be taken to have received the letter by no later than 10 May 2018.
If the Applicant received notice of the objection decision on 10 May 2018, the 90 day time limit to lodge an application for review with the AAT1 expired on 8 August 2018.
The Respondent noted the Applicant submitted his application for review on 13 December 2018, but did not submit his application for an extension of time until 21 December 2018. The Applicant’s extension of time application was submitted 135 days after the 90 day period for lodging an application for review expired. The Applicant’s substantive application to the AAT1 was lodged 127 days outside of the 90 day time limit for lodging an application for review.
The Respondent submited that the length of delay is a relevant consideration. The Respondent also noted that even in matters where the delay is not considered to be lengthy, the Tribunal has found that ‘brevity of the extension sought does not, however, lead automatically to an order extending the time’.[14]
[14] Secretary, Department of Family and Community Services and Roberts [2003] AATA 269, [16].
Awareness of appeal rights and explanation for the delay
It is to be expected that an application for an extension of time would normally provide an acceptable explanation for the delay.[15]
[15] Comcare v A’Hearn (1993) 45 FCR 441, p 444.
The Applicant provided various documents in support of his application for an extension of time[16] but did not clearly specify the reasons why he was unable to lodge his application with the AAT1 within 90 days of receiving notice of the objection decision.
[16] T138, T Documents, pp 856-979.
In his application to the AAT2, the Applicant’s representative stated that ‘not enough credence has been given to [the Applicant’s] mental state throughout which has often times rendered him incapable of gathering together information in a timely fashion’.[17] Subsequent to filing his application in the AAT2, the Applicant provided evidence addressing his mental health. A report from the Adult Mental Health Service dated 2 September 2019, states that it is possible that the Applicant has a clinical depression of mild/moderate severity and he has had long standing suicidal thoughts. A report by a psychological therapist, Ms CW dated 11 September 2019 states that the Applicant has severe depression.
[17] T1, T documents, p 3.
The letter sent to the Applicant enclosing the objection decision dated 30 April 2018 relevantly stated the following:
‘If you do not agree with this decision
If you think this decision is wrong, you can ask the Administrative Appeals Tribunal (AAT) to review it. You must do this within 90 days from the date you receive this letter. You can contact the AAT by going to their website at aat.gov.au or calling them on 1800 228 333...’[18]
[18] T106, T Documents, p 706.
In Grafton and Commonwealth (1988) 16 ALD 533; Romeo and Secretary, Department of Social Security (1992) 26 ALD 248; and Civic Tavern Pty Ltd and ACT Liquor Licensing Board (1993) 32 ALD 381, the Tribunal declined to grant an extension of time as it was satisfied that the Applicant in each case was fully aware of the right to seek review of the decision in question and did nothing.
Prejudice to the Registrar and the other parent
The Respondent noted that there would be no prejudice if an extension of time were granted.
The Respondent also contended that any decision made in this matter will directly impact on the OP. While the Applicant may be aggrieved by a decision of the AAT2 to not allow an extension of time, the OP may be aggrieved if an extension of time were allowed.
The Respondent further noted that the Applicant had delayed in exercising his rights of review on previous occasions.
Prospects of success
It is relevant to consider the merits of the proposed application.[19] When considering an application for an extension of time, it is not appropriate to embark on a trial of the merits but it may be that the stronger the apparent merits are, the more likely that an extension of time would be appropriate.[20]
[19] Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121, 122 per Von Doussa J.
[20] Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516, [29], [38] per Hill J
The decision under review in this matter is a decision by the AAT1 not to allow an extension of time for review of the objection decision dated 30 April 2018. The objection decision was a decision to disallow an objection of a decision made under section 98S(1)(g) of the Assessment Act to vary the Applicant’s adjusted taxable income.
Section 98C(1) of the Assessment Act is the relevant provision that governs the factors a decision-maker must be satisfied of before making a determination under section 98 to depart from the administrative assessment of child support. The main requirements of section 98C are:
(a)one, or more than one, of the grounds for departure exists; and
(b)it would be just and equitable as regards the child, the liable parent, and the carer entitled to child support; and
(c)it would be otherwise proper to make a particular determination.
The original decision maker was satisfied that each of these requirements was met, and on that basis decided to depart from the administrative assessment of child support by varying the Applicant’s adjusted taxable income to be $162,900 for the period 1 January 2015 to 31 December 2016.[21]
[21] T30, T Documents, p 262.
The objections officer disallowed the Applicant’s objection as he had not provided any evidence to suggest his income was significantly different to the amount set by the original decision.[22] The objections officer therefore concluded that the decision to depart from the administrative assessment by varying the Applicant’s adjusted taxable income was correct.
[22] T104, T Documents, p 703.
The Respondent noted that since the objection decision was made, the Applicant had provided evidence of his actual income during the relevant period. On the basis of this evidence, the AAT1 concluded that there ‘may, therefore, be some merit in his application’.[23]
[23] T2, T Documents, p 9 [30].
The Applicant did not file a Statement of Facts Issues and Contentions but filed numerous documents and reports in a somewhat haphazard manner. Relevant matters contained in the filed material included:
(a)A communication dated 24 November 2015 directed to the CSA Change of Assessment Team, advising that the Applicant had not resided in Australia for some months and currently had no plans to return.
(b)He was residing in a place where employment opportunities have been mixed.
(c)Medical difficulties, including carpal tunnel syndrome, caused him to cease employment as a trowel hand for a stonemason and he been unable to find work since.
(d)He had no history in the place he was residing, was unable to claim any form of benefit and could not make his current monthly repayments of $1570.92.
(e)He had cancelled his Telstra mobile account and therefore was unable to log into CSA online.
CSA contacted the Applicant on January 18 2016 expressing a desire to contact him but indicated that it could not be done by unsecured emails. He was asked to contact the CSA as soon as possible but if they had not heard from him by 27 January 2016 that they would act on the information they had and the current ongoing liability would continue. Then followed a series of communications from the Applicant, continually complaining about the CSA’s failure to nominate a single point of contact and also failing to telephone him at an agreed time. The Applicant’s refusal to answer a private number unless a fixed time was notified in advance caused communication difficulties.
Furthermore, by a communication dated 29 April 2018, the Applicant informed the CSA that for reasons known only to the local postal service, his post office box had been deactivated resulting in all communications having been returned to sender. He attached a letter from the local postal service apologising for incorrectly cancelling his post office box and noting that it had been reinstated.
By communication dated the 2 July 2018, the Applicant informed the CSA that he had been overwhelmed by significant personal mental health issues and also accused the OP of working less hours than those of which she was capable in order to increase his child support payments. He also alleged that he had received information that the OP had been hiding her true income from the CSA. He noted that his PTSD and mental health issues had rendered him unemployable for the past few years.
A report from the local government’s Health and Community Services Adult Mental Health Services dated 2 September 2019 noted, among other things, that the Applicant lives in a friend’s caravan and has been engaged in a long-running struggle with the CSA whom he says are pursuing him for sums of money that he cannot pay. The report noted that the Applicant was experiencing long-standing suicidal thoughts in the context of chronic life difficulties, particularly being pursued for money by the CSA. There was evidence of suicidal ideation.
In a letter dated 19 November 2019, Professor MM, consultant psychiatrist at a local Community Mental Health Centre, reported that the long-running dispute with the Australian Child Support Agency was having a very detrimental effect on the Applicant's mental health.
OTHER PARTY’S SUBMISSIONS
The OP noted that on many occasions the Applicant had failed to supply details about his financial circumstances. However, she did not want him charged interest and was content that no child support payments be paid whilst the Applicant remained unemployed.
EVIDENCE
Immediately prior to the hearing the Applicant provided the documents and evidence as set out below.
·A CSA assessment dated 2 Novemember 2018 assessing the Applicant’s child support payments for the period 1 July 2017 to 30 September 2018 at $8,165.10.
·A notice stating that thereafter the Applicant was to pay the fixed annual rate of child support at an annual rate of $1416 and noted that he was $17,064.22 in arrears.
·A child support assessment issued by the CSA dated 27 November 2018 for the period 1 April 2018 to 30 June 2019 assessing the annual child support payable by the applicant of $427.
It appeared common ground that the applicant had no annual income from 2016 onwards but what remained in dispute was the income assessed at $162,900 for the first six months of the 2015/2016 financial year.
The Applicant was affirmed and gave, inter-alia, the following evidence:
(a)He accepted the relevant period was from about 30 April 2018 until December 2018, although he could not be precise as to the exact time of receiving the notification.
(b)He noted that he had been on various medications at the relevant time and had been suffering suicidal ideation in the summer of 2018 when he found himself standing under a tree in the woods with a rope around his neck.
(c)When asked when he became aware of the request for more information from the CSA, he said that was struggling to think of an actual time but he was pretty sure that the influx of multiple documents arrived when he was on strong medication. Something ‘rang a bell’ to the affect that the documents were returned because they did not reach him, and then were sent back to him from the CSA.
(d)He had given permission for a friend to act on his behalf with the CSA because of his mental health.

The Applicant's evidence was, at times, very disjointed and this matter has been delayed because of the need to acquire a transcript which took some time. He was, at times, reluctant to give evidence except on his own terms and became agitated if he perceived that his evidence was being questioned. I found it difficult to be fully satisfied as to the veracity of some of the matters he advanced.
The AAT1 decision-maker noted that there appeared to be some merit in the Applicant’s application but upon applying the general principles to matters made out of time, the application was refused.
It also appears at the Applicant's original objection was disallowed because he failed to provide the relevant corroborating documents, but that evidence has now been produced.
The Applicant maintained that he appealed his income assessment multiple times and denied that he had taken different employment in the local area where he resides to minimise his income.
He also gave evidence about several drugs prescribed for his depression and that they affected him to such an extent that he found it difficult to concentrate.
Under cross-examination he said that he left Australia in April 2015 and went to America in the summer of 2016 which he later specified to be approximately five months from 3 June of that year. At that stage he was taking sertraline and not working.
He conceded that he had no independent evidence as to the condition of his mental health from 1 January 2015 to December 2016.
He also conceded that he would have received the notice of the decision made on 30 April 2018 by at least 6 July 2018 but it arrived in a bundle of approximately of six or seven documents when he had issues with the post office box. He said some of the documents are quite lengthy and arrived about the same time that his mental health was ‘not all that flash’.
When challenged about whether the effect of a letter he wrote to the CSA stating that he would not enter into any more correspondence until they provided some information to him about the OP’s income, was to demonstrate that he was aware of the application and the time limits, he responded that at that stage his mental health was not good and cited the example of finding himself under a tree with a rope around his neck.
His friend who had been assisting him since she met him in February 2018 confirmed the unexpected closure of the PO box and the subsequent “battery of correspondence” much of it marked “copy” on the side.
She also noted that the Applicant became very stressed and agitated when collecting mail from the PO box and so she started collecting it for him.
Despite my reservations about the Applicant's evidence, I am satisfied that his mental state was very disturbed during the relevant period in 2018 and that matters were complicated by the local postal service’s mistaken closure of his post office box and the subsequent receipt of multiple copy documents.
I now turn to the principles discussed at paragraphs [20] – [24] and in particular those set out in Johnson and Commonwealth of Australia [1990] AATA 1.
Despite my concerns about some aspects of the Applicant's evidence I am unable to conclude the Applicant ‘rested on his rights’ as I found there was significant confusion caused by the closure of the PO box and his mental state. I also note that the Applicant’s friend offered to pay money on his behalf to clear several years of his debt on the proviso that the matter be concluded.
Apart from general public policy prejudice by departing from the prima facie position that the extension should not normally be granted, the Respondent conceded no particular prejudice. The OP, although wholly desirous of having the matter concluded, does not appear to be significantly prejudiced because the Applicant does not have the means to pay the money should he not succeed in this application and the substantive hearing.
It appears from comments made by the AAT1 decision maker and proper concessions made by counsel for the Respondent, that there may be some merit in the Applicant’s substantive application as to the financial situation for some of the relevant period which supports those comments and the concession.
I am concerned that the Applicant has been slow in providing relevant information on several occasions and that he always seems to have an excuse for so doing, but if this application is granted, he should realise he is unlikely to receive further indulgences.
I'm also concerned about the effect upon the OP as to the delays but as noted above, the Applicant's financial position makes his immediate contribution towards child-support obligations unlikely.
Accordingly, despite the prima facie rule to the effect that proceedings commenced outside the prescribed period should not be entertained, I consider in this case it is proper to so do and grant the application.

I certify that the preceding 72 (seventy-two) paragraphs are a true copy of the reasons for the decision herein of A G Melick AO SC, Deputy President

.........................[sgd].............................
Associate
Dated: 16 July 2020

Dates of hearing:

Date of final submissions:

23 December 2019

28 February 2020

Solicitor for the Respondent: Ms L Hinwood

[2020] AATA 2323

16 July 2020

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness