McConnell and Child Support Registrar [2005] AATA 342 (15 April 2005)

Last Updated: 18 April 2005

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 342

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2005/194

GENERAL ADMINISTRATIVE DIVISION		)
	Re		DENNIS McCONNELL

Applicant

And

CHILD SUPPORT REGISTRAR

Respondent

DECISION

Tribunal

Ms R Hunt, Senior Member

Date 15 April 2005
Place Sydney

Decision

The Tribunal has affirmed the decision of the Child Support Agency, dated 16 October 2004, to refuse Mr McConnell an extension of time.

...................[SGD]...........................

Ms R Hunt
Senior Member

CATCHWORDS

Child support - Application for extension of time – Insufficient factors present for exercise of discretion

LEGISLATION

The Administrative Appeals Tribunal Act 1975 ss29 (7)
The Child Support (Assessment) Act 1989

CASES

Hunter Valley Developments v Cohen, Minister for Home Affairs & Environment [1984] FCA 176; (1984) 3 FCR 344

Re Commonwealth Scientific and Industrial Research Organisation and Barbara (1987) 6 AAR 300

Agar v Australian Postal Corporation (1998) 56 ALD 361

Brisbane South Regional Health Authority v Taylor ([1996] HCA 25; 1996) 186 CLR 541

Comcare v A'Hearn [1993] FCA 498; (1993) 45 FCR 441

Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42

REASONS FOR DECISION

15 April 2005

Ms R Hunt, Senior Member

1. The basis for the matter before the Tribunal is a child support assessment made pursuant to the Child Support (Assessment) Act 1989 (the Assessment Act). This assessment is in favour of Ms Roberts and in aid of supporting the children of Ms Roberts and Mr McConnell. Mr McConnell applied to the Tribunal for review of the decision of the Child Support Agency (CSA) made on 16 October 2004 which refused his late application for review of a decision dated 18 August 2003. Mr McConnell informed the Tribunal by letter received on 14 February 2005 that he wished to apply for review of the decision and the Tribunal sent him an application form. The last day for making an application to the Tribunal within time and in accordance with subsection 29(7) was 13 November 2004. Mr McConnell lodged the correct form of application for review on 25 February 2005, approximately 3 months out of time.

LEGISLATION
2 The application for an extension of time is dealt with under the provisions of the Administrative Appeals Tribunal Act 1975. Subsection 29(7) states:

"(7) The Tribunal may, upon 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 (including a decision made before the commencement of this section)."

CONSIDERATION AND REASONS

3. Mr McConnell told the Tribunal at a telephone hearing on 5 April 2005 that he failed to object in time to the administrative assessment of his income for child support purposes because he had been distracted by other circumstances. He further said that he did not know about the time limits for review. As to the assessment for child support, he submitted that the assessment of 18 August 2003 was inaccurate, that he could show his actual income from his annual tax returns and assessments, and that he could not pay the child support assessed because he did not earn sufficient income. He noted that the assessment was based on a statutory formula as to his supposed capacity to earn and not on his actual income. He also claimed that the mother of his children, who are the subject of the assessment, was earning more than average income and more than he was earning but that this had never been taken into account by the CSA.

4. During 2003 and 2004, discussions took place between Mr McConnell and various officers of the CSA. Mr McConnell said he had orally maintained objections to the assessment that had been issued. Mr McConnell claimed that he had been denied access to his children and that was the matter he had been pursuing when he overlooked objecting to the assessment of child support income. Mr McConnell had been attending Court in order to seek access to his children when his Legal Aid advisers told him he needed to appeal to the Tribunal to review the income assessment. He had not realised that he was out of time in applying to the Tribunal.

5. Before the Tribunal is a statement dated 11 March 2005 prepared by a Senior Adviser for the CSA. Mr McConnell also had a copy of this statement and referred to it during the hearing. The statement sets out a background summary and chronology concerning Mr McConnell’s history with the CSA. The statement supports Mr McConnell’s oral evidence to the Tribunal that he had been in contact from time to time with the CSA about the income assessment and arrears owed. For example, there is a record that Mr McConnell on 24 November 2003 spoke to an officer about the arrears and the difficulty he was having in gaining contact with his children. While the arguments advanced by Mr McConnell in support of changing the assessment are not fully before the Tribunal, it is clear that he disputes the CSA’s assessment of his earnings capability.

6. However, the statement also sets out that both parents were clearly advised in writing of the Senior Adviser’s decision of 18 August 2003 and at the same time informed of the procedure if they wished to object to the decision. This letter was dated 28 August 2003 and stated that any objection needed to be made in writing within 28 days. Mr McConnell made a phone call approximately 60 days later and a formal objection almost two years later.

7. The principles to be applied in an application for extension of time, and the factors to be considered in such an application have been considered by this Tribunal and the Federal Court on a number of occasions. Unless these factors are present, proceedings commenced outside of the prescribed period will not be entertained. The factors to which the Tribunal is to have regard in exercising its discretion to extend time were detailed by the Federal Court in Hunter Valley Developments v Cohen, Minister for Home Affairs & Environment [1984] FCA 176; (1984) 3 FCR 344, summarised in Re Commonwealth Scientific and Industrial Research Organisation and Barbara (1987) 6 AAR 300 at 301-302, and qualified by observations in Comcare v A'Hearn [1993] FCA 498; (1993) 45 FCR 441 at 444. Consideration was also given to them in Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42. I refer to the summary of the relevant factors distilled from these judgements by Deputy President Purvis set out in Agar v Australian Postal Corporation (1998) 56 ALD 361 as follows :

"(1) The Applicant for extension should show an acceptable explanation of the delay and that it is fair and equitable in the circumstances to extend time.
(2) Action taken by the applicant which makes the decision-maker (and presumably also the other party to the decision) aware that he/she contests the finality of the decision is relevant. If the applicant has rested on his/her rights this may operate against the exercise of the discretion.
(3) Prejudice to the respondent is a material factor militating against the grant of an extension.
(4) The mere absence of prejudice is not enough to justify the grant of an extension. A delay which may result in the unsettling of other people or of established practices is likely to prove fatal to the application.
(5) The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted.
(6) Consideration of fairness as between the applicant and other persons in a like position is relevant.
(7) The applicant for extension of time should ensure that there is evidence indicating why time should be extended and the Tribunal is to be satisfied that it is proper so to extend time. The explanation for a delay is a matter relevant for consideration as is a consideration of the prospects of success of a substantive application.
The principles enunciated above, whilst a guide to the exercise of a discretion, are not exhaustive ".

8. Mr McConnell’s priority to obtain access to his children and the confusion in his mind as to the roles of the Family Court and the Tribunal were offered as explanations for the delay in his application to this Tribunal. He also said he felt unable to proceed without legal representation and that this was not available to him for the review. While these explanations are believable, they are not compelling reasons for the delay. I also note that the CSA’s representative conceded that their letter, informing Mr McConnell of the decision made on 16 October 2004 did not provide details of how to apply to this Tribunal for review of the decision or give information about the need to apply within a particular time. The letter, which is before the Tribunal, simply supplied the Tribunal’s telephone number with a sentence stating that he might apply to the Tribunal for review. Therefore, I have taken this lack of information about the time limit for such an application as a relevant factor in Mr McConnell’s favour.

9. As to the second factor, I accept that Mr McConnell did indicate to CSA officers that he contested the finality of the decision even though he did not seek formal review. Thirdly, however, prejudice to the respondent is a material factor militating against the grant of an extension. The considerable delay in seeking formal review by the CSA coupled with the late application to this Tribunal prejudice the respondent in my view.

10. Next, the Tribunal has considered the merits of the substantive application, that is, the case dispute rather than the reason for the delay. It is not necessary for the Tribunal to make a definitive assessment as to the merits of a substantive application but matters that point to the likely resolution or not of the dispute are important. The CSA has submitted that Mr McConnell’s actual income is not the determining criterion for assessment of his income earning capacity. Section 98B of the Assessment Act enables a change to a determination of income. As the record of decision shows, Ms Roberts applied for a change to Mr McConnell’s assessment and succeeded after consideration of submissions by both parties. The CSA argues that Mr McConnell is unlikely to succeed in overturning that decision as the issues raised by him were taken into account in the decision. I have examined the reasons for the decision and can see that Mr McConnell’s concerns were carefully addressed.

11. Again, fairness between an applicant and others should be taken into account by the Tribunal. In this respect, Ms Robert’s interests are affected and she may suffer a detriment if Mr McConnell is able to re-open a decision made in 2003 and finalised in October 2004.

12. Lastly and overall, the application to the Tribunal for an extension of time should ensure that there is evidence indicating why time should be extended and that it is proper to extend time. Mr McConnell has not presented any new evidence to the Tribunal as to why the time should be extended. He is relying on arguments put to the first decision maker.

13. As well, the CSA’s representative has told the Tribunal that Mr McConnell has lodged a more recent application for review of the current administrative assessment of his income for child support purposes. This application was lodged on or about the 10^th or 11^th of March 2005. The CSA submitted that this more recent objection was based on the same grounds as the present objection. The CSA has not yet made a decision on the March 2005 objection and Mr McConnell’s representations are being considered. The CSA pointed out that should its decision be unfavourable, Mr McConnell could seek to air the whole situation in the Family Court and that this would be a more appropriate forum as it is not restricted to the same time limitations as the Tribunal. Mr McConnell has also indicated that he is pursuing court action in order to gain access to his children. In any event, I take note of the CSA’s submission in paragraph 25, of the statement dated 11 March 2005, that Mr McConnell could seek an order of the Court covering all of the child support assessments concerned. In my view, he will not suffer detriment as his assessment is already undergoing review and he could take the matter further through the Family Court. This is, of course a matter for Mr McConnell.

14. It is the view of the Tribunal that, having considered each of the factors precedent to the Tribunal exercising its discretion, it is not appropriate in this matter for an extension of time to be granted. Mr McConnell should not be enabled to seek review by the Tribunal of the decision of 16 October 2004.

DECISION

15. The Tribunal has affirmed the decision of the Child Support Agency, dated 16 October 2004, to refuse Mr McConnell an extension of time.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of

Signed: .....................................................................................
Associate: Zoe McDonald

Date/s of Hearing: 5 April 2005
Date of Decision: 15 April 2005
Solicitor for the Applicant: Self

Solicitor for the Respondent :: Child Support Registrar