BBGL and Child Support Registrar (Child support second review)

[2016] AATA 946

BBGL and Child Support Registrar (Child support second review) [2016] AATA 946 (28 November 2016) 

Division	GENERAL DIVISION
File Number(s)	2016/3960
Re	BBGL
APPLICANT
And	Child Support Registrar
RESPONDENT
And	PDFS
OTHER PARTY

DECISION

Tribunal	Deputy President Dr P McDermott RFD
Date	28 November 2016
Place	Brisbane

I affirm the decision under review.

............................[sgd]............................................

Deputy President Dr P McDermott RFD

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.

CATCHWORDS

CHILD SUPPORT – extension of time application – time limit on application for AAT first review – reasons for the person’s failure to apply for the review within the period unsatisfactory – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 29
Child Support (Registration and Collection) Act 1988 (Cth) ss 90, 91, 92, 96A, 159
Child Support (Registration and Collection) Regulations 1988 (Cth) reg 14

CASES

Hunter Valley Developments v Minister for Home Affairs and Environment (1984) 3 FCR 344
Comcare v Ahearn (1993) 119 ALR 85
Gallo v Dawson (1990) 64 ALJR 459

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

28 November 2016

INTRODUCTION

1. On 1 July 2016, the Social Services and Child Support Division of the Administrative Appeals Tribunal (“AAT first review”) did not grant BBGL (“the applicant”) an extension of time to seek a review of a decision of a Child Support Objections Officer made on 10 April 2013.[1] On 29 July 2015, the applicant lodged an application for this Tribunal to review the decision of 1 July 2016.[2] I have to determine whether the applicant should be granted an extension of time so that the decision of the Child Support Objections can be reviewed.

   [1] Exhibit A, T-Documents, T2.

   [2] Exhibit A, T-Documents, T1.

   BACKGROUND

2. On 13 October 2012, the applicant made an objection by telephone against a departure decision of 14 August 2012 which increased his liability.[3] On that date, the applicant was advised by the Child Support Officer (“the officer”) of the procedures involving a full merits review of a decision to which an objection has been made.[4] The applicant was also advised of his appeal rights to the then Social Security Appeals Tribunal.[5]

   [3] Exhibit A, T-Documents, T6.

   [4] Ibid at p. 24.

   [5] Ibid at p. 25.

3. The officer also advised the applicant that to consider his objection he was required to provide a detailed profit and loss account and balance sheet of the family company based on its financial position at 30 June 2012 as well as his bank statements for the last three months.[6] When giving evidence the applicant stated that he had not provided the officer with the requested financial information about the family company. There is no evidence that he provided the officer with the requested bank statements.

   [6] Ibid.

4. The applicant asserted that in about August 2012 he terminated his mobile phone account because he had a disagreement with the provider about the cost of the plan. He also asserted that he did not have internet access at that time. However, on 13 October 2012 the applicant was still able to have the conversation with the officer that I have mentioned.

5. At the hearing the applicant asserted that he was unaware of his appeal rights but the applicant was told that he had a right of review to the then Social Services Appeal Tribunal during the conversation of 13 October 2012.

6. After the applicant made his objection on 26 August 2012, he stated in evidence that he did not contact the Department until 24 July 2015 when he requested a departure authorisation certificate.[7]  In evidence he asserted that he did not contact the Department because he was frustrated and angry at the child support process.

   [7] Exhibit A, T-Documents, T12.

7. The applicant gave evidence before the Tribunal that he was not contacted by the Department after he made his objection on 26 August 2012 and was so unable to provide information to the Department. I do not accept this explanation because there was a letter sent to the applicant and an attempt to call him on 10 and 11 April 2013.[8] The applicant asserted that the Department could have contacted him on his home phone while his mobile phone was not connected. However, it is apparent from the records that there was also an attempt to contact him on his home telephone on 28 February 2013 and 8 April 2013 when messages were left on the home telephone and on his CSA online account. On 28 February 2013, a message was left for him to make contact by 14 March 2013; this gave the applicant a reasonable amount of time to collect information in support of his objection.[9]

   [8] Exhibit A, T-Documents, T10 and T11.

   [9] Exhibit A, T-Documents, T8.

8. The applicant filed a number of documents for consideration by the Tribunal in support of his contention that that there is merit in his substantive application for review of the objection decision.[10] The applicant asserted in evidence that the bank records that he had recently filed and which were admitted in evidence disclosed banking transactions up to 2011. However, this is incorrect because the bank records which he filed are of a “flexidirect” account from 16 September 2006 to 12 June 2008 and of a “visa” credit account from 4 July 2006 to 3 March 2008. These bank records were filed in an endeavour to attack the credibility of the other party and are of no relevance to the financial circumstances of the applicant which were considered in the decision of 10 April 2013.

   [10] Exhibit C, Materials lodged by Applicant.

9. The applicant stated that the reason why he sought an extension of time to review the decision of the officer was so that he could file documents which showed merit on his part. I explained to the applicant that this application was not a full merits review of the decision of the officer but was concerned as to whether he has prospects for success. There was nothing to prevent the applicant from lodging his documents before the hearing of this application for an extension of time. The applicant was questioned about the fact that he had still not provided the Department with a detailed profit and loss account and balance sheet of the family company as was requested. The applicant essentially asserted that he had nothing to do with the company because he had resigned as a director.

10. The applicant gave evidence to the Tribunal about having resigned as a director in about June or July 2010. The applicant asserted that he did not know whether he was a shareholder of the company. However, it was mentioned during the hearing that it is a usual requirement in the constitution of a company for a director to hold shares. The applicant was also unable to advise whether he requested the directors of the family company to provide him with the detailed profit and loss account and balance sheet of the family company so that he could provide it to the Department. The applicant stated that the company was placed under external administration. However, the applicant did not tender in evidence any information concerning the financial affairs or external administration of the company.

    LEGISLATION

11. Section 29(1)(d) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) states that an application to the Tribunal (including AAT first review) for a review of a decision must be lodged within the prescribed time where the terms of the decision were recorded in writing and set out in a document that was given to the applicant or the decision is deemed to be made by reason of the operation of subs 25(5) or (5A) of the AAT Act. A note attached to s 90(1) of the Child Support (Registration and Collection) Act 1988 (Cth) (“the Act”) states that the effect of s 29(1)(d) of the AAT Act is an application for review of a decision to be made is generally required to be made within a 28 day period of the person being given a copy of the decision.

12. Section 91(1) of the Act states that, if the period for applying for AAT first review has ended, a person may make an application for AAT first review that includes a written application (“the extension application”) requesting the AAT to consider the application for AAT first review despite the ending of the period. Section 92(1) confers jurisdiction of the AAT first review to grant or refuse the extension application. Section 96A(a) states that an application may be made for AAT second review of a decision to refuse an extension application.

13. Regulation 14 of the Child Support (Registration and Collection) Regulations 1988 (Cth) provides that where service has been attempted by pre-paid post, unless the contrary is proved, service will be taken to have been effected at the time when the notice or other communication would, in the ordinary course of the post, have arrived at the place to which it was addressed.

    CONSIDERATION

14. At the outset of my consideration of the application I should record that I have formed an adverse opinion of the credibility of the applicant and cannot place any reliance on information that he has provided to the Department. The applicant is subject to s 159(1) of the Child Support (Assessment) Act 1989 (Cth), which stipulates that the making of a false or misleading statement in a material particular is an offence punishable on conviction by imprisonment. On 24 July 2015, he stated that he must face criminal charges in Singapore,[11] but denied this before this Tribunal. The applicant stated in writing on 10 October 2015[12] and orally on 9 November 2015[13] that he was bankrupt, but before this Tribunal denied ever being made bankrupt. On 9 November 2015, the applicant stated that he was employed by Musa Contractors.[14] He stated that he was an employee only with no other connections or relations to the owners of the business but before this Tribunal he confirmed that the business was run by his sister-in-law. On 23 April 2015, he was questioned about this relationship as well as providing differing dates of commencing work with an employer.[15] 

    [11] Exhibit A, T-Documents, T12.

    [12] Exhibit A, T-Documents, T15.

    [13] Exhibit A, T-Documents, T16.

    [14] Ibid.

    [15] Exhibit A, T-Documents, T19.

15. The evidence before me is that the applicant was advised of the objection process and of his rights of review when he made his objection. On 10 April 2013, when the decision to disallow the objection was made a letter which advised the applicant of the decision was posted to the applicant as well as being sent to his CSA online account.

16. In his application for the AAT first review the applicant stated that the decision was sent to an “incorrect” address. I do not accept this assertion. I consider that he did receive the decision of 10 April 2013 when it was sent to him by pre-paid post to a postal address which he confirmed in evidence is still his postal address.

17. I do not accept the assertion of the applicant that it was not until this year that he became aware of the decision of 10 April 2013. After making his objection he did not provide the financial information that was requested by the Department. He also did not return calls that were made to him by the officer who was considering his objection. The first contact that was made was by him after he made his objection was on 24 July 2015 when he sought a departure authorization certificate.[16]

    [16] Exhibit A, T-Documents, T12.

18. In any event, if the assertion of the applicant that he only recently became aware of the decision is accepted, he should be regarded as having slept on his rights in not making an enquiry to the Department decision upon his objection. It is plausible that the reason why he did not make such an enquiry was because he had received the decision soon after it was made.

19. Cases such as Hunter Valley Developments v Minister for Home Affairs and Environment (1984) 3 FCR 344 and Comcare v Ahearn (1993) 119 ALR 85 which deal with particular statutory provisions can provide guidance in this situation. The foremost consideration in granting an extension of time is to do justice between the parties.[17]

    [17] See Gallo v Dawson (1990) 64 ALJR 459 per Mc Hugh J.

20. One matter that I have to consider is whether there would be prejudice to the other party if the application for an extension of time was granted. The other party gave evidence that she would have to take time off work to attend the hearing and prepare for a hearing. She is a supply teacher and would not be paid if she does not attend work. I accept her to be a credible witness. In my view she would certainly be prejudiced by the loss of income in having to attend a hearing if the Tribunal were to extend time to allow the applicant to lodge an application.

21. On 13 October 2012, the applicant was advised of the view of the officer that the applicant had a beneficial interest in the family company.[18] During the hearing the applicant was questioned about the fact that he did not then deny having a beneficial interest in the family company at that time. I consider that this question was understood by the applicant who has undertaken university studies. The tenor of his reply to that officer concerned the indebtedness of the company. The applicant was aware of the financial affairs of the company because he was able to inform the officer that the family company has liabilities amounting to $1.3 million and was unprofitable.[19]

    [18] Ibid.

    [19] Ibid.

22. The applicant did not provide any relevant financial information to show that he had any prospects of success if his application for an extension of time was granted. The material that was lodged by the applicant such as bank records that dated back to the 2006 to 2008 period had absolutely no relevance to the decision that was made on 10 April 2013 and the employment of the applicant by the family company at the time of his objection. Those bank records were lodged by the applicant in an attempt to discredit the other party but it was not apparent how the records could achieve this purpose. The applicant made serious unsubstantiated allegations about the other party. The making of such allegations before this Tribunal does not make me accept his assertion that he wished to improve relations between him and the other party. 

23. The decision that was made on 10 April 2013 had regard to the financial information which was then available to the officer. The records disclosed that the family company ran a substantial business with sales of $858,223 in the 2011 income tax year. The family company had then not yet lodged the income tax return for the 2012 income tax year. The applicant declined the request of the officer to provide a detailed profit and loss account and balance sheet of the family company as at 30 June 2012. The records also disclose that there was then a significant increase in motor vehicle expenses incurred by the company.

24. The tenor of the submission of the applicant was that the family company was unprofitable. I do not accept his assertion as the applicant has confirmed that the ATO is taking proceedings for the recovery of unpaid tax. In any event whether the family company was unprofitable is not really the point, what is relevant is the remuneration of the applicant that he received from the family company.

25. When the decision to disallow the objection was made on 10 April 2013 the applicant had not then filed a recent income tax return. The last return that he filed was for the 2009 income tax year. The decision of the applicant to not file tax returns for the 2010, 2011 and 2012 income years was then a matter of concern to the officer. Prior to the decision of 10 April 2013 it was also apparent that the applicant had funds from the family company or some other source to enable him to travel overseas for long periods.

26. The case of the applicant is that the delegate did not consider all relevant information before making the decision. However, the assessment of the officer was, in my opinion, fair and reasonable having regard to the fact that the applicant had declined to provide the most recent accounts of the company. The applicant had not made full disclosure of the financial circumstances of the family company as was requested. The applicant had not filed income tax returns for three years. The applicant did not point to any deficiency in the comprehensive statement of reasons for the objection decision which contains an analysis of the financial information which was available to that officer. Procedural fairness was accorded to the applicant when the officer attempted to interview the applicant by telephone on two occasions as well as leaving messages on his internet account.

27. There are no cogent reasons why an extension of time should be granted to the applicant.

    DECISION

28. I affirm the decision under review.

I certify that the preceding 28 (twenty -eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

...................................[sgd].....................................

Associate

Dated 28 November 2016

Date(s) of hearing	4 November 2016
Applicant	In person
Solicitors for the Respondent	Department of Human Services
Other Party	In person