Abraham and Child Support Registrar (Child support)

[2020] AATA 274

Abraham and Child Support Registrar (Child support) [2020] AATA 274 (20 January 2020)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2019/SC017855

APPLICANT:  Ms Abraham

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                20 January 2020

APPLICATION:

An extension application made on 18 November 2019 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 29 January 2019 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

CHILD SUPPORT – application for extension of time – interests of justice not served by allowing the extension – extension of time refused

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.

STATEMENT OF REASONS

1. This is an application by Ms Abraham for an extension of time to apply to the Tribunal for review of a “change of assessment” decision of the Child Support Agency (CSA) dated 29 January 2019. Ms Abraham promptly applied for review of that decision by the Tribunal; she elected to withdraw it on 11 July 2019 following the Tribunal’s early case appraisal process. The Tribunal observes that Ms Abraham was the applicant in those proceedings, and there is no proper basis for the application to be reinstated pursuant to section 42A of the Administrative Appeals Tribunal Act 1975.  

2. Ms Abraham now seeks to make a fresh (second) application to the Tribunal against the original objection decision dated 29 January 2019. There is a time limit to apply for “AAT first review”: see section 90 of the Child Support (Registration and Collection) Act 1988 and paragraph 29(1)(d) of the Administrative Appeals Tribunal Act 1975. Ms Abraham was required to make her application within 28 days of receiving the original decision.

3. In her written application to the Tribunal seeking an extension of time, Ms Abraham advises the following:

   As discussed, I had applied to AAT for review of CSA decision with reference no. 2019/SC016035. The application was withdrawn back in July 2019 on the basis of findings of Early case assessment (ECA). The ECA had revealed that cost of communication originally claimed by father was excessive however his income used in CSA decision also appeared excessive (annualised $92,000 as per CSA decision vs annualised $82,000 as per ECA). It appeared that if matter had progressed to hearing, the assessment may not change as father's income used in CSA decision was higher based on the findings of ECA. I was advised to lodge a review with CSA whether father deliberately tried to reduce his income after he has lodged his tax return for FY19 and CSA assessment is changed to reflect his reduced income.

   However, when I received revised assessment from CSA (see attached), it appears that father's taxable income for FY19 is $101k, higher than annualised income of $82k which was calculated as per ECA. Kindly note outcome of ECA was on 13th June 2019 which is quite close to 30 June 2019 so one would assume that annualized calculated income to be reasonably correct. It appears that father may not have disclosed all the information to AAT regarding his income at that point of time or there could be an error with calculation while tax return shows approx 24% higher income than ECA ($102k - $82k). ECA also showed increase in my income of approx $6k.

   If correct income was used in ECA which was higher than $92k with lower cost of communication than originally claimed, the amount of child support provided by father could have changed through my application with AAT which was solely withdrawn based on findings of ECA. I had also emailed the Tribunal on 10th July 2019 confirming the grounds of withdrawal.

1. The established cases indicate that the starting position is the prima facie rule that proceedings commenced outside a statutory period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). However, the primary concern “is to do that which will enable justice to be done between the parties” (see Martinsen v Secretary, Department of Family & Community Services [2004] FCA 297 per Spender J). Spender J quoted McHugh J in Gallo v Dawson (1990) 64 ALJR 459 as follows:

   In order to determine whether the rules [imposing time limits] will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time ...

   When the application is for an extension of time … it is always necessary to consider the prospects of the applicant succeeding in the appeal …

2. Ultimately, the question to be resolved is whether the interests of justice are served by granting an extension. Here, Ms Abraham’s application might be described as a “back door” attempt to circumvent the reinstatement provisions.

3. The Tribunal observes that Ms Abraham argues the other parent’s 2018/19 income was ultimately  higher than the sum set by the CSA. However, it is important to observe that change of assessment decisions do not warrant that every single dollar is accounted for. The child support scheme does not operate in a similar way to the taxation system where every tax year is “reconciled” each tax year; rather, the last completed tax year is applied on a rolling basis, usually from around November after the end of the relevant tax year. In Ms Abraham’s case, the Tribunal observes the other parent’s 2018/19 taxable income has now been applied to the assessment, and will continue to be assessed as it would in the ordinary course until the end of 2020 when 2019/20 tax information should become available. The formula does not retrospectively apply an increase in taxable income; rather, that income is given prospective effect on a rolling basis after the end of the relevant tax year.

4. Ms Abraham made a fully informed election to withdraw her initial application. The Tribunal records do not reveal she did so on the basis she was given any misleading or ambiguous information during the Tribunal’s processes.

5. The Tribunal is satisfied it would plainly be counter to the interests of justice to permit the application to proceed. The application for an extension of time will therefore be refused.