Auger and Child Support Registrar (Child support)

[2024] AATA 1893

Auger and Child Support Registrar (Child support) [2024] AATA 1893 (24 April 2024)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2024/MC027555

APPLICANT:  Ms Auger

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                24 April 2024

APPLICATION:

An extension application made on 20 February 2024 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 24 February 2023 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

CHILD SUPPORT – extension of time to apply to tribunal – change of assessment – high costs of educating child and income, property and financial resources – application made one year after objections officer’s decision – father ceased working and income reduced to zero – mother rested on rights – more appropriate to apply for further change of assessment – application 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. Ms Auger and [Mr A] are the parents of [the child]. [The child] is recorded as being in Ms Auger’s 93% care and [Mr A]’s 7% care. The case has been registered with Services Australia (Child Support) from 11 April 2022 and collected by Child Support from the start of the assessment. [Mr A] is the parent liable to pay child support.

2. On 22 July 2022 Ms Auger applied for the change of assessment on the basis of Reason 3 – the high costs of educating [the child]. On 26 October 2022 [Mr A] cross applied on the basis of Reason 8A – that the income, property and financial resources for him made the administrative assessment in place at the time unfair.

3. On 20 October 2022 a delegate of the Registrar made the decision to depart from the administrative assessment in place on the basis of Reason 3 and 8A and departed from the administrative assessment in place by decreasing [Mr A]’s adjusted taxable income and increasing the child support payable by [Mr A] to cover his share of the school fees for [the child] until 30 September 2024.

4. On 28 November 2022 [Mr A] objected to this decision. On 24 February 2023 an objections officer partially allowed [Mr A]’s objection and replaced the decision made by the delegate as follows:

   ·     For the period 11 April 2022 to 19 May 2022, [Mr A]’s adjusted taxable income is set at $105,259;

   ·     For the period 1 July 2022 to 31 December 2022, the annual rate of child support is increased by $7,581;

   ·     For the period 1 January 2023 to 31 December 2023, the costs of the child in the assessment is increased by $11,968;

   ·     For the period 1 January 2024 until the case ends, the costs of the child in the assessment is increased by $12,447.

5. On 22 February 2024 Ms Auger applied to the Administrative Appeals Tribunal (the Tribunal). As this request for review was not lodged with the Tribunal within 28 days of Child Support’s decision, an application for an extension of time was also lodged. The matter was heard on the papers. The Tribunal had regard to the subsection 93(2) statement and documents (463 pages) provided by Child Support in accordance with the Child Support (Registration and Collection) Act 1988 (the Act) as well as the reasons for the extension of time outlined in Ms Auger’s application for review.

6. The issue to be considered is whether Ms Auger should be granted an extension of time to lodge an application for review of the Registrar’s decision.

LAW AND CONSIDERATION

1. The law relating to a person’s right to seek review of a decision of the Registrar is contained in section 29 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). Subsection 29(2) of the AAT Act requires that a person must lodge a review request with this Tribunal within 28 days after a notice of the decision of the Registrar is given to them.

2. Where the period for lodgement has ended, the person may send the application to the Tribunal along with a request that the review be treated as if it was duly lodged, that is, that it was lodged within the allowed time (section 91 of the Act). This is commonly referred to as an extension of time request. Section 92 of the Act then provides that the Tribunal must consider the application for an extension of time, and grant or refuse that application in writing.

3. In Brisbane South Regional Health Authority v Taylor [1996] HCA 25, the High Court, in dealing with an extension of time case and the general concept of time limitation periods, noted that while an extension of time is the exception to the general rule, there are legislative provisions which in the circumstances of the facts of an individual case may indicate that justice is served by the general rule being overruled.

4. In making this decision, I considered the guiding principles for the exercise of a discretion to allow an extension of time as set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (Hunter Valley Developments). In that case the Federal Court said that an extension of time should not be granted unless it was proper to do so, noting that in general, applications or proceedings commenced outside of a prescribed time limit will not be considered. The court also said that there must be an acceptable explanation for the delay and that it must be fair and equitable in the circumstances to extend time. The Federal Court identified 6 factors to take into account when deciding whether to grant an extension of time.

5. In Brown v Commissioner of Taxation [1999] FCA 563, Hill J reviewed the principles set out in the Hunter Valley Developments case in the context of a person seeking an extension of time to lodge an objection against an assessment of income tax. In that case, Hill J commented that Wilcox J in Hunter Valley Developments never suggested he was laying down a series of principles to be applied in every case, and that the factors would serve as a guide and were not exhaustive. Further he commented that: “Too slavish an adherence to them should, in my view, be avoided.” Hill J then sought to reshape the factors to be considered in the context of objecting to a tax assessment.

6. The Administrative Appeals Tribunal has applied the principles set out in the Hunter Valley Developments case in Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42 (Mulheron). The authorities, Hunter Valley Developments and Mulheron, establish that when considering whether to exercise the discretion to allow an extension of time, a decision-maker should consider and balance a range of factors including:

   ·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 that they will experience in providing evidence as a result of the delay;

   ·wider prejudice to the general public;

   ·fairness in granting an extension of time as between the applicant and other persons in a similar position; and

   ·whether it is proper to grant the extension of time.

7. I am satisfied that Ms Auger was advised of her right to seek review with the Tribunal in accordance with subsection 87(3) of the Act. The Tribunal is satisfied Ms Auger was notified of the objections officer’s decision electronically on 27 February 2023.

8. Ms Auger provided reasons for needing an extension of time in her application for review:

   I was advised to apply for review of child support in relation to private school fees which my ex husband was ordered to pay, however when he set his income to zero this eradicated the payment. I rang to find out the best way to approach this and was advised to submit an application for review under reasons 8A and B which I have done and now been advised that they cannot proceed on these grounds. They have advised me to ask you to review the original decision that was made back in 2023 when he was ordered to pay 50% of the fees after objecting. The case officer did not account for him reducing his income to zero so the decision was tied to income - I don't believe this is a fair decision as it has eradicated the payment for school fees leaving me to pay them on my own when he was originally ordered to contribute 50%. I have not received any fees since October 2023 when he ceased employment. He then took 3 months to travel and is still unemployed.

9. On 11 September 2023 Ms Auger contacted Child Support following an income estimation from [Mr A] stating that his income would be $0 which was applied from 8 September 2023. From this date onwards [Mr A] was assessed to pay the minimum annual rate of $1,632 in child support to Ms Auger. During this conversation Ms Auger indicated she did not want to proceed with a further change of assessment application because she did not want [Mr A] to have all of her personal information.

10. Ms Auger was unhappy with the decision of the objections officer for increasing the costs of the child rather than setting an annual rate of child support to cover [Mr A]’s share of the costs for school fees from 1 January 2023. The outcome of the objections officer’s decision following [Mr A]’s income estimation of $0 for the period 1 January 2023 to the end of the child support assessment for [the child] meant that [Mr A] is not liable for payment of his share of the school fees because his child support liability was set at the fixed annual rate, once [Mr A] ceased working.

11. On 6 December 2023 Child Support accepted an application from Ms Auger to extend child support for [the child] past her 18th birthday to 6 December 2024 which is when [the child] finishes secondary school. 

12. I am satisfied that Ms Auger could have applied to the Tribunal if she was not happy with the objections officer’s decision to set the cost of the child instead of a fixed annual rate of child support to cover [the child]’s schooling. I am also satisfied that Ms Auger was unhappy with the decision of the objections officer due to the effect on the amount of child support payable to Ms Auger once [Mr A] estimated his income to be $0 once he ceased work.

13. For Ms Auger to have lodged her application with the Tribunal within 28 days of the objections officer’s decision, her application would have needed to be lodged by 24 March 2023. Ms Auger was 334 days late in her application to the Tribunal. I am satisfied Ms Auger rested on her rights and does not have an acceptable reason for the delay in her application to the Tribunal.

14. Ms Auger said she was told she could lodge another change of assessment application with Child Support, but notes in the Child Support record indicate that Ms Auger did not want to do this.

15. I am satisfied that the objections officer made the decision to increase the cost of the child, on the basis that [Mr A] was on an employment contract at this time and this decision would take into account any income variations for [Mr A]. The objections officer also states that: “The onus will remain with Ms Auger to pay [the child]’s fees to the school”.

16. I accept the objections officer cannot foresee the actions of either parent into the future, it is clear that [Mr A]’s circumstances have changed since the decision of the objections officer was made, and it is my view that an extension of time application is not an appropriate way to deal with Ms Auger’s concerns given the delay in her application to the Tribunal. It is more appropriate given the circumstances for Ms Auger to lodge a further change of assessment application with Child Support on the basis of Reason 8B in relation to [Mr A]’s earning capacity. Accordingly, there exists little merit in Ms Auger’s application for review.

17. Timeframes for initiating legal proceedings do serve a useful public purpose. The principal objects of the Child Support (Assessment) Act 1989 (the Assessment Act) are to ensure that children receive the financial support that their parents are able to provide; and that the periodic amounts payable by parents towards the maintenance of their children are paid on a regular and timely basis (subsection 3(1) of the Assessment Act).

18. To that end it is important that decisions and reviews of administrative assessments are made on a timely basis so that necessary financial support can be provided to the children of the assessment. Any delay may cause hardship for them and the parent providing care and any delay may also mean a parent is placed in a position where they are required to pay back money to the paying parent if it is determined they have paid too much. If an extension of time is allowed, this may place the parent in receipt of child support in a difficult position and cause undue hardship if much later a different determination was made after an objection to an application was lodged past the 28-day period. A 28-day time limit reduces uncertainty for both parties and the public has a general expectation that unless there is a good reason, timeframes should generally be observed.

19. Given the delay in Ms Auger’s application to the Tribunal I am satisfied that there exists prejudice to [Mr A] and the general public and it is more appropriate for the matter to be dealt with as a change of assessment application to child support. I am satisfied that in these circumstances taken as a whole it is not proper to grant an extension of time.