Berwille and Child Support Registrar (Child support)

[2022] AATA 3083

Berwille and Child Support Registrar (Child support) [2022] AATA 3083 (13 July 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC024052

APPLICANT:  Mr Berwille

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Senior Member S Trotter

DECISION DATE:  13 July 2022

APPLICATION:

An extension application made on 8 June 2022 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 11 May 2020 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

CHILD SUPPORT – application for extension of time – departure determination - no satisfactory explanation for the lengthy delay – little merit – prejudice to the other parent due to long delay - 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.

REASONS FOR DECISION

BACKGROUND

1. This review concerns whether an extension of time should be granted to allow Mr Berwille to lodge an objection to a decision made by a delegate of the Child Support Registrar (the Registrar) on 11 May 2020.

2. Mr Berwille and [Ms A] are the parents of a child born in 2010 in respect of whom there is a child support assessment in place.

3. On 19 February 2020, a delegate of the Registrar made a change of assessment decision and varied Mr Berwille’s adjusted taxable income, utilised in the child support formula for the calculation of child support, to $164,394 per annum instead of the estimate of income by Mr Berwille of $64,235 per annum otherwise used in the assessment.

4. On 10 March 2020, Mr Berwille objected to that decision and, on 11 May 2020, a further delegate of the Registrar, an objections officer, partly allowed the objection and varied Mr Berwille’s adjusted taxable income utilised to $140,622 per annum.

5. On 8 June 2022, Mr Berwille applied to the Tribunal seeking an independent merits review of the objection decision and included an application for an extension of time within which to lodge the application with the Tribunal. Mr Berwille provided a written statement as to why he failed to request review of the decision within 28 days of receipt of the decision as follows (unedited):

   Please note I do run a small business and I work more then 12 hours a day. Obviously my main object to run my business.

   After I received Objection Decision Reached Letter, I did not know that I have to take matter to Administrative Appeal Tribunal within 28 days!
   In Letter it only said to review this decision, Apply to Administrative Appeal Tribunal (AAT)!

   On that objection decision I did not realise that decision had been made for until 31 January 2023. CSA did not consider business down turn for COVID lockdown.

   In 11 April 2022 I did write a letter to Child Support Agency (CSA) with all of income and tax returns and Ask CSA to amend my income to assess my child support payment ,I did not get any response from CSA ( Child Support Agency), Did not get any response about question of why CSA should include business income to estimate child support amount. Besides it is clearly saying in CSA web site, Paying parent’s business income would be excluded if the business started after separation and work extra hours for business.

   Now CSA ( Child Support Agency) enforcing to collect unpaid amount ( I did not agreed to that amount) like put a Departure Prohibition Order, Accessing my bank account, contacting my realestate agent for making payment!!

   So now I have to take this matter to Administrative Appeal Tribunal for Justice and leave my life better.

   So please extent time to lodge appeal against wrong Income Assessment, Departure prohibition order Which CSA incorrectly applying on me.

6. The Tribunal has taken into account documents provided by the CSA (folios 1 to 439) and Mr Berwille’s application to the Tribunal and supporting reasons.

ISSUES

1. The relevant legislation is contained in the Administrative Appeals Tribunal Act 1975 (the AAT Act) and the Child Support (Registration and Collection) Act 1988 (the Act).

2. 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 Act1975 (the AAT Act). Paragraph 29(2)(a) of the AAT Act requires that a person must lodge an application for review of a decision in the period commencing on the day on which a decision is made and ending on the twentyeighth day after the day on which a document setting out the terms of the decision is given to the applicant.

3. Section 87 of the Act requires that the Registrar must service notice in writing of an objection decision on the person who lodged the objection. Subsection 87(3) provides that:

   (3)      A notice served on a person under subsection (2) must include, or be accompanied by:

   (a)       the reasons for the decision; and

   (b)a statement to the effect that if the person is aggrieved by the decision on the objection, the person may, subject to this Act and the AAT act, apply to the AAT for review of the decision.

4. Section 91 of the Act states that, 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 within the allowed time. 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.

5. Mr Berwille was sent a notification on 13 May 2020 advising him of the decision made by the objections officer on 11 May 2020 regarding his objection to the earlier change of assessment decision dated 19 February 2020. Mr Berwille lodged an application for review with the Tribunal on 8 June 2022.

6. The issues to be considered by the Tribunal are:

   (a)  Was a valid notice of the 11 May 2020 decision served upon Mr Berwille? And, if so,

   (b)  When was the notice served on Mr Berwille? And

   (c)   Did Mr Berwille apply to the Tribunal in the period commencing on the day on which the decision was made and ending on the twentyeighth day after the day on which a document setting out the terms of the decision was given to Mr Berwille? And, if not,

   (d)  Should Mr Berwille be granted an extension of time to lodge an application for review of the objections officer’s decision dated 11 May 2020?

CONSIDERATION

Issue 1 – Was a valid notice of the 11 May 2020 decision served upon Mr Berwille?

1. The 13 May 2020 letter notifying Mr Berwille of the objections officer’s decision of 11 May 2020 includes the following statement:

   Call us if you think this decision is incorrect because information was not provided or taken into account; or the legislation has not been applied correctly. We will check the details and explain the decision. You can ask us to review the decision (we call this an objection). For more information about how to object go to our website humanservices.gov.au/reviewsandappeals

   Please call Child Support on 131272 for assistance. Please quote your child support reference number … when you call to help us provide you with faster service.

2. The 11 page ‘Details of Objection Decision’ document dated 11 May 2020, sent under cover of the 13 May 2020 letter, included the following on the last page:

   RIGHT OF APPEAL TO THIS DEICSION

   Either parent may apply to the Administrative Appeals Tribunal (AAT) for a review of this decision. The AAT can be contacted by telephone on 1800 228 333.

3. Paragraph 87(3)(b) of the Act requires that the notice in writing of the objection decision that is served upon the person who lodged the objection must include, or be accompanied by, a statement to the effect that if the person is aggrieved by the decision on objection, ‘the person may … apply to the AAT for review of the decision’.

4. Whilst the 13 May 2020 notice did not, in error, refer to the applicant’s right to apply to the AAT for review of the decision, the 11 May 2020 Details of Objection Decision, which accompanied the 13 May 2020 letter, did state that that applicant had a right to appeal the decision by applying to the AAT. To the extent that the wording does not exactly mirror the wording of paragraph 87(3)(b) the Tribunal is satisfied that there was substantial compliance with this paragraph. In this regard the Tribunal notes that section 25C of the Acts Interpretation Act1901 provides that ‘Where an Act prescribes a form, then strict compliance with the form is not required and substantial compliance is sufficient’.[1] Although the Act does not ‘prescribe’ a form for the purposes of a valid notice, the Tribunal considers section 25C also informs a notice given under the Act and the wording in the Details of Objection Decision about Mr Berwille’s appeal rights substantially complies with the paragraph 87(3)(b) requirement.

   [1] Subject to a contrary intention, the Acts Interpretation Act 1901 applies to all legislative instruments, notifiable instruments and other instruments: s.2 of the Acts Interpretation Act 1901.

5. The Tribunal therefore concludes that a valid notice of the 11 May 2020 decision was served upon Mr Berwille and that he was given a document setting out the findings on material questions of fact and reasons for the decision in accordance with paragraph 29(2)(a) of the AAT Act.

6. In reaching this conclusion, the Tribunal distinguishes this matter from the similar, but not identical situation, that arose in DFQ17 v MIBP [2019] FCAFC 64 where the Full Court found that the notice in question in that case did not clearly state the time by which the application to the Tribunal was made. Notably the relevant legislative provision in that case, subsection 66(2)(d) of the Migration Act 1958 specifically required that the notice state ‘the time in which the application for review may be made’. However, section 87 of the Act, as is relevant to this matter, does not contain the same requirement.

Issue 2 - When was the notice served on Mr Berwille?

1. The CSA’s records show that the 13 May 2020 notice was sent by prepaid post to Mr Berwille. Allowing for five business days for posting of the letter and seven business days for delivery of the letter the notice is taken to have been given to Mr Berwille on 29 May 2020.

Issue 3 - Did Mr Berwille apply to the Tribunal in the period commencing on the day on which the decision was made and ending on the twentyeighth day after the day on which a document setting out the terms of the decision was given to Mr Berwille?

1. The Tribunal has found that the 13 May 2020 notice, and accompanying 11 May 2020 Details of Objection Decision document, was given to Mr Berwille on 1 June 2020. Mr Berwille applied to the Tribunal on 8 June 2022. He therefore did not apply to the Tribunal in the period commencing on the day on which the decision was made and ending on the twentyeighth day after the day on which a document setting out the terms of the decision was given to him.

Issue 4 - Should Mr Berwille be granted an extension of time to lodge an application for review of the objections officer’s decision dated 11 May 2020?

1. As the request for a review of the decision was not lodged with the Tribunal within 28 days of being given notice of the objection decision, an application for an extension of time must be considered.

2. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 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.

3. In making its decision, the Tribunal considered the guiding principles for the exercise of the discretion to allow an extension of time as set out in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176. 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 generally applications commenced outside of the prescribed time limit will not be considered.

4. A consideration of other relevant authorities establishes that when considering whether 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:

   (a)  the reasons for the delay and whether the applicant rested on their rights;

   (b)  the merits of the substantive application;

   (c)   any prejudice to the other party including any difficulties that they will experience in providing evidence as a result of the delay;

   (d)  wider prejudice to the general public;

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

   (f)    whether it is proper to grant the extension of time.

25.  The Tribunal considered each of these factors.

The reasons for the delay and whether Mr Berwille rested on his rights

26.  Mr Berwille has stated that he did not know that he had to take the matter to the Tribunal within 28 days and that, on 11 April 2022, he wrote to the Child Support Agency (CSA) asking for an amendment of his income but did not hear back.

27.  Records of the CSA show the following contacts of Mr Berwille with the CSA following the decision of 11 May 2020:

(a)3 March 2022 when Mr Berwille contacted the CSA stating, amongst other things, that he did not agree with the rate of child support stating that “He noted that business income should not have been considered in his COA decision, only what he draws down’ and ‘he stated that he did not consider the AAT as he did not have the time’.

(b)11 April 2022 letter, including amongst other things, his reasons why the decision of 13 May 2020 was wrong, asking for a revised assessment and stating that he did not agree with the ‘CSA Child support adjustable assessment’ and asking that the associated departure (from Australia) prohibition in relation to unpaid child support be withdrawn.

(c)2 May 2022 when Mr Berwille contacted the CSA and it was noted, amongst other things, that (unedited):

‘Mr Berwille was advised of his right to apply to AAT for review at the time.

We discussed his option to apply for AAT and he noted that he didn’t have enough time to do that.

-I noted that he rested on his rights and chose not to apply for AAT.

-He stated that the CS should be doing the wrong assessment and disagreed with the outcome of PT6a.

-I noted that there is a 28 day timeframe for the AAT and he is well outside this time.

(d)10 May 2022 when Mr Berwille contacted the CSA stating, amongst other things, that ‘he would like to seek legal advice re not being able to go through to the AAT as it is past 4 weeks since the CoA decision & Objection was made. I can advise .. of this request and suggest he contact the AAT to have the conversation with them explaining his circumstances as to why he didn’t lodge within timeframes.’

28.  The records of the CSA show that Mr Berwille was aware at numerous times more than 28 days prior to his application to the Tribunal on 8 June 2022 of his option of applying to the Tribunal but did not do so including, in his own words, because ‘he did not consider the AAT because he did not have time’ and because ‘he didn’t have enough time to do that’. As recently as 10 May 2022 prior to lodging his application, Mr Berwille was aware of the 28 day time limit, and yet still did not lodge an application within 28 days of that date. Mr Berwille clearly knew of his right to apply to the Tribunal from the outset, if not the specific time period, and expressed on a number of occasions his decision to not do so because ‘he did not have time’. In all of the circumstances, the Tribunal concludes that Mr Berwille has rested on his rights and has not provided a reasonable and adequate explanation for the delay in lodging his application to this Tribunal.

The merits of Mr Berwille’s objection

29.In his letter to the CSA of 11 April 2022, Mr Berwille contends that the objection decision is wrong for a number of reasons including that he thinks business income should stay in a business to grow and that the child support assessment should be based upon his personal income only and not include his business income. He stated that he started the business after separation and that he works at least 12 hours every day running the business. He further states that due to business conditions, COVID restrictions and high expenditure he is not doing very well in the business. In his email of 16 June 2022 to the Tribunal, Mr Berwille states that he believes that business income should be excluded if the business started after separation and a person works extra hours for the business. He refers to the CSA website as stating to that effect.

30.A substantive review of the objection decision has not been conducted however the Tribunal is of the view that Mr Berwille’s application has little prospect of success as he erroneously is of the view that business income from a business started after separation and income referrable to additional hours’ work should be excluded from income available for child support assessments.

31.The Tribunal acknowledges that there may have been a downturn in Mr Berwille’s business since the objection decision of 11 May 2020. If that is the case, Mr Berwille is at liberty to himself apply for a change to the assessment based upon a new change in circumstances. However, that is a matter for a new change of assessment application and is not to be considered as part of an application for review of an objection decision.

Prejudice to [Ms A] and the wider public

32.  The Tribunal considers that there would be significant prejudice to [Ms A] if an extension of time was granted. This is primarily because of the passage of time of over two years since the objection decision was made, and the difficulties that might therefore ensue in providing evidence as a result of the delay and in not having certainty in the decision made over two years ago.

33.  The Tribunal is also satisfied that there would be prejudice to the wider public if the extension of time were granted, as it may lead to unnecessary administrative costs and would be contrary to community expectations regarding the finality and certainty of administrative decision-making within a timely period after the making of the decision.

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

34.  The Tribunal finds that it would not be fair to others to grant Mr Berwille an extension of time. This is largely because he has rested on his rights, and on the face of it his application does not have merit.

Whether it would be proper to grant an extension of time

35.  The Tribunal considers that in the circumstances of this case it would not be proper to grant Mr Berwille an extension of time.

Conclusion

36.  Weighing up all the relevant factors, the Tribunal is not persuaded that it is fair and equitable to extend the permissible time in which Mr Berwille can lodge an application for review of the objection decision. In the circumstances the Tribunal has decided to refuse to grant an extension of time to Mr Berwille.