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Tribunal: Member Fiona Hewson

Miss Lander sought review of a decision made by the Department of Human Services (the Department) on 26 February 2018 to refuse to grant an extension of time to object to a departure determination made by the Department on 21 December 2017.

The Tribunal’s task was to decide if Miss Lander should be allowed an extension of time to object to a decision made on 21 December 2017 to depart from the administrative assessment by varying the incomes of both parents. In making its decision, the Tribunal had regard to the guiding principles set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 which were that an extension of time should not be granted unless it was proper to do so, there should be an acceptable explanation for the delay and that it must be fair and equitable in the circumstances to extend time.

When considering the reasons for the delay, the Tribunal found that even though the objection was lodged less than a month out of time, Miss Lander was satisfied with the decision when it was made but became dissatisfied later when she became aware that the other parent won a trip from his employer on the basis of his performance, bought a new car in 2017 and that online research indicated that Mr A was doing well as a real estate agent.

The Tribunal found that Miss Lander discussed the outcome of the change of assessment application with the decision-maker on 20 December 2017 and she was advised of her right to object to the decision and decided there was no reasonable explanation for the delay and Miss Lander rested on her rights.

When considering whether there was any merit in an objection, the Tribunal found that the Department had used the other parent’s payslips in determining his income and that they were the best evidence of the other parent’s likely income and Miss Lander had not presented any new evidence that the income as assessed was significantly less than what he was likely to earn in the financial year. The Tribunal found the merit in the objection was marginal.

The Tribunal considered whether there would be prejudice to the other parent should the extension of time be granted and was satisfied that there would be prejudice. This was because the parties should be able to assume that the decision was final once the 28 days for lodging an objection had passed. However, given the relatively short delay, the Tribunal concluded that the prejudice would be minimal.

The Tribunal also considered whether there would be prejudice to the general public and whether it would be in the public interest for the issues raised by Miss Lander in her objection to be determined. In finding that Miss Lander’s issues were not of wider public interest the Tribunal concluded that there would be prejudice to the general public if the application was granted as the extension of time would be a departure from established practice.

The Tribunal affirmed the decision to refuse to grant an extension of time within which to object.

Read the full written decision on AustLii.