Moeling and Child Support Registrar (Child support) [2020] AATA 1040 (2 April 2020)

Last Updated: 1 May 2020

Moeling and Child Support Registrar (Child support) [2020] AATA 1040 (2 April 2020)

DIVISION: Social Services & Child Support Division
EXTENSION APPLICATION

NUMBER: 2020/SC018259

APPLICANT: Mr Moeling

OTHER PARTY: Child Support Registrar

DATE DECISION MADE: 02 April 2020

APPLICATION:

An extension application made on 18 January 2020 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 30 August 2019 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

CHILD SUPPORT – application for extension of time - no satisfactory explanation for the delay - no merit - extension of time refused

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.

STATEMENT OF REASONS

1. On 18 January 2020 Mr Moeling lodged an application with the Administrative Appeals Tribunal (the Tribunal) for an extension of time for review of a child support decision made on 30 August 2019. The matter was considered on 2 April 2020 on the papers (consistent with the Tribunal’s ‘Child Support Review Directions’). The Tribunal had before it a bundle of documents provided by the Child Support Agency.
2. Mr Moeling and [Ms A] are the parents of [Child 1] (born May 2007), [Child 2] (born February 2011) and [Child 3] (born February 2011). The case commenced on 18 April 2008 and Mr Moeling is the parent liable to pay child support under the assessment.
3. On 31 January 2019 [Ms A] applied for a change to the administrative assessment on the basis of the high costs of caring for, educating or training the child in a manner expected by the parents (the ground commonly referred to as Reason 3). Mr Moeling lodged a cross application on the basis of the money, goods or property received by the child, the payee or a third person (Reason 5), the high cost of childcare (Reason 6) and a parent’s income, property, financial resources or earning capacity (Reasons 8A and 8B).
4. On 19 June 2019 the Child Support Agency made the decision to change the assessment (the original decision) so that:
   • for the period from 1 June 2019 to 30 November 2020 the adjusted taxable income for [Ms A] is set at $60,000;

• for the period from 1 June 2019 to 30 November 2020 the adjusted taxable income for Mr Moeling is set at $118,000;

• for the period from 1 January 2019 to 31 December 2019 the annual rate of child support payable by Mr Moeling is increased by $2,000; and

• for the period from 1 January 2020 to 31 December 2020 the annual rate of child support payable by Mr Moeling is increased by $2,060.

5. This was done to reflect the increased costs associated with educating [Child 1] at [a] Catholic High School (Reason 3) and the income, property and financial resources of both parents (Reason 8A).
6. On 28 June 2019 Mr Moeling objected to this decision and on 30 August 2019 the Child Support Agency allowed the objection in part and made the decision to change the assessment (the objection decision) so that:
   • for the period from 1 June 2019 to 30 November 2020 the adjusted taxable income for [Ms A] is set at $55,792;

• for the period from 1 June 2019 to 30 November 2020 the adjusted taxable income for Mr Moeling is set at $113,826;

• for the period from 1 January 2019 to 31 December 2019 the annual rate of child support is increased by $2,000; and

• for the period from 1 January 2020 to 31 December 2020 the annual rate of child support is increased by $1,911.

7. This was done to reflect the increased costs associated with educating [Child 1] (Reason 3) and the income, property and financial resources of both parents (Reason 8A).
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 Mr Moeling’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. The Tribunal finds Mr Moeling was advised about the outcome of the objection decision by electronic means in a letter from the Child Support Agency dated 30 August 2019. Given Mr Moeling lodged his application more than 28 days after he 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

15. The Tribunal finds that Mr Moeling’s application for an extension of time on 18 January 2020 in relation to the objection decision made on 30 August 2019, of which he was notified by electronic means, is approximately 113 days out of time.
16. In seeking an extension of time, Mr Moeling cites as the reasons for the delay that he found the decision and the process extremely hard to comprehend. Mr Moeling states he sought explanations from the Child Support Agency but received little response and had “given up on the system”. Mr Moeling also states that he sought support from an indigenous support officer as well as legal advice from Aboriginal legal services.
17. The notification of the objection decision provided by the Child Support Agency dated 30 August 2019 outlines what to do if Mr Moeling 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.
18. There is no evidence to support the contention that Mr Moeling endeavoured to discuss the outcome of the objection decision with the Child Support Agency until he made contact on 13 December 2019. On that occasion a record of the conversation between Mr Moeling and a child support officer indicates that Mr Moeling raised the objection decision and was advised of his appeal rights to the Tribunal as well as the need for an extension of time.
19. The Tribunal also notes that Mr Moeling has previously been through the change of assessment process and so would be familiar with the requirement to appeal such decisions in a timely fashion.
20. While acknowledging the child support system can be complex and difficult to understand, the Tribunal does not find this to be an acceptable explanation for the lengthy delay in applying for a review of the objection decision.
21. Mr Moeling was made aware of his appeal rights. The Tribunal is not satisfied with the reasons provided for his late application and finds that Mr Moeling rested on his rights.

Merits of the application

22. Mr Moeling is seeking review of an objection decision which set his adjusted taxable income for the purposes of child support at $113,826 and set the adjusted taxable income for [Ms A] at $55,792. It also increased the annual rate of child support to account for his half of the cost of educating [Child 1] at [a] Catholic High School.
23. In his application to the Tribunal Mr Moeling argues that [Ms A] falsely claimed financial hardship and difficulty paying both school fees and child care fees when this was not the case. Mr Moeling states that [Ms A] has a partner but told the Child Support Agency she did not. In relation to education costs, Mr Moeling submits that [Ms A] agreed to pay for [Child 1] to attend [the] Catholic High School as he could not afford the fees and wanted [Child 1] to attend a government school. Mr Moeling believes Ms Blake manipulated the system to her advantage in order to obtain a financial gain.
24. In his detailed submission to the Tribunal Mr Moeling also states that he found it “difficult and unfair” to pay the additional child support particularly given [Ms A] was in a better comparative financial situation. Mr Moeling believes the objection decision places him in financial hardship and impacts his ability to support both himself and his children.
25. Mr Moeling also raised a number of other matters in his submission, including care of the children, which are not before the Tribunal and were not considered in this decision.
26. Before 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 the income, property and financial resources of both parents as well as the high costs of caring for, educating or training the child in a manner expected by the parents.
27. In considering the merits of Mr Moeling’s application, the Tribunal therefore conducted a careful review of the information used by the Child Support Agency in reaching its decision.
28. The Tribunal notes in the objection decision that Mr Moeling’s current annual income was based on advice from his employer. After allowing for work-related deductions the Child Support Agency determined an adjusted taxable income for the purposes of child support of $113,826. The Child Support Agency based [Ms A]’s current income on her payslips and her 2018-19 individual tax return. The Tribunal considers this to be a reasonable approach and one which has not been disputed by Mr Moeling.
29. A review of the evidence provided by the Child Support Agency also indicates [Ms A] remains employed in her usual role and a ground relating to her earning capacity (Reason 8B) cannot be established.
30. Mr Moeling’s main concern relates primarily to the fact [Ms A] has a partner and their combined income, property and financial resources place her in a stronger financial position than she indicated to the Child Support Agency. One of the primary objects of the child support legislation is that the level of financial support provided by parents for the children should be determined according to their capacity to provide that financial support. In considering Reason 8A as a ground for departure from the administrative assessment, regard must be given to not only the income of each parent but also their capacity to derive income from assets and the financial resources from which a benefit may be gained. A broad range of financial circumstances can be taken into account, however, the income, property and financial resources of any person who does not have a duty to maintain the child is disregarded (section 117(7A) of the Assessment Act). In this case, even if [Ms A] did have a partner, his income, property and financial resources would not be taken into account.
31. Mr Moeling also raised issues around the fairness of the objection decision. The Tribunal is satisfied that, in making its decision, the Child Support Agency properly considered the range of factors necessary before reaching a conclusion that it was just and equitable to make that particular determination. This included an assessment of the necessary commitments of self-support of both parents. The Tribunal notes in the objection decision the Child Support Agency found, “After balancing the needs and interests of the parents and children of this case with the available evidence, I am satisfied this is the just and equitable outcome.”
32. Mr Moeling also argues he wanted [Child 1] to be educated at a public school and it was not his choice for [Child 1] to attend [the] Catholic High School. Mr Moeling states that [Ms A] agreed to pay the full amount of fees for [the] Catholic High School. The Tribunal notes in the submission provided by Mr Moeling evidence showing the parents did discuss the possibility of [Child 1] attending [Name] High School in [Suburb] (a public school).
33. There may be a reason for changing an assessment if, in the special circumstances of the case, the costs of maintaining a child are significantly affected because the child is being cared for, educated or trained in the manner that was expected by the parents (subparagraph117(2)(b)(ii) of the Assessment Act). In making a determination in relation to this ground the Child Support Agency found that, given Mr Moeling had signed the enrolment application form in May 2018 for [Child 1] to attend [the] Catholic High School, mutual expectation had been established.
34. While the Tribunal accepts that Mr Moeling and [Ms A] did consider [Child 1] attending a public school, a joint decision was ultimately made for him to attend [the] Catholic High School. In his submission to the Tribunal Mr Moeling submits that he signed the application based on an agreement that [Ms A] would pay the fees. Mr Moeling states this was a verbal agreement and has not provided further evidence to confirm the existence of such an agreement. The Tribunal also notes that it was Mr Moeling who actually submitted the application for [Child 1] to attend [the] Catholic High School.
35. The Tribunal is satisfied that at the time the objection decision was made, a ground for departure from the administrative assessment existed based on the high cost of private school fees for [Child 1].
36. In his initial cross application Mr Moeling also submitted that a ground for departure existed on the basis of the money, goods or property received by the child, the payee or a third person (Reason 5) and the high cost of childcare (Reason 6). In the objection decision the Child Support Agency considered the expenses claimed by Mr Moeling as the usual expenses incurred by most parents for the children and so could not establish Reason 5. The Child Support Agency also examined the evidence provided by Mr Moeling in relation to his child care costs and was not satisfied these costs were ongoing or that they met the criteria as set out in the relevant subsection of the Assessment Act.
37. 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]).
38. The Tribunal finds Mr Moeling’s application for review would not have good prospects of success on the two main grounds he has raised being the income, property, financial resources or earning capacity of the parents or the high costs of caring for, educating or training the child in a manner expected by the parents. In addition the Tribunal considers the issues raised by Mr Moeling related to the fairness of the objection decision have little foundation based on the evidence provided.
39. The Tribunal therefore considers that Mr Moeling’s application has little merit.

Potential prejudice to [Ms A] and the wider public

40. [Ms A] should ordinarily be able to rely on the child support assessment once the time for objection has passed. Given Mr Moeling is approximately 113 days late in making his application, it would be reasonable for [Ms A] to consider the objection decision was final. The Tribunal finds [Ms A] would be disadvantaged if an extension of time to lodge an objection was granted.
41. 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 also 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 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 Mr Moeling and other persons in similar positions

42. 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 is not satisfied Mr Moeling’s circumstances are sufficiently different to that of other applicants in a similar position that an extension of time is warranted. The Tribunal finds that it would not be fair to others to grant Mr Moeling an extension of time.

CONCLUSION

43. Mr Moeling has not provided a satisfactory explanation for the lengthy delay in applying for a review of the objection decision and the Tribunal has found he rested on his rights. The Tribunal also found there was little merit to his application based on the evidence available. There would also be some prejudice to [Ms A] and the wider public should an extension of time be granted.
44. Having carefully considered the various factors which it must take into account, the Tribunal finds it would not be proper to grant an extension of time to seek review of the objection decision made on 30 August 2019 in the circumstances of this case. Accordingly, the extension application is refused.