Bird and Child Support Registrar (Child support)

[2019] AATA 5024

Bird and Child Support Registrar (Child support) [2019] AATA 5024 (27 August 2019)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2019/MC016469

APPLICANT:  Mr Bird

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                27 August 2019

APPLICATION:

An extension application made on 15 May 2019 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 23 March 2018 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

CHILD SUPPORT – application for extension of time - no satisfactory explanation for the delay - little merit - weighing all factors the extension of time was correctly refused - 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. On 15 May 2019 Mr Bird lodged an application with the Administrative Appeals Tribunal (the Tribunal) for an extension of time for review of a child support decision made on 23 March 2018.  The matter was considered on 27 August 2019 on the papers (consistent with the Tribunal’s ‘Child Support Review Directions’).  The Tribunal had before it a bundle of documents provided by the Department of Human Services, Child Support (the Child Support Agency).

2. Mr Bird and Ms Bird are the parents of [Child 1] (born February 2000) and [Child 2] (born December 2001).  Child support was first registered on 12 March 2004.  At the time of application both [Child 1] and [Child 2] were considered eligible children of the assessment.  Mr Bird was the liable parent under the assessment. 

3. It is noted that the child support case for [Child 2] ended [in] February 2018 and the child support case for [Child 1] ended [later in] February 2018.

4. On 25 October 2017 Ms Bird applied for a change to the administrative assessment on the grounds of the special needs of the child (the ground commonly referred to as Reason 2) and the income, property and financial resources of Mr Bird (Reason 8A).

5. On 20 December 2017 the Child Support Agency made the decision to change the assessment (the original decision) so that:

   ·     for the period from 25 October 2017 until the case ends the adjusted taxable income for Mr Bird is set at $70,133; and

   ·     for the period from 1 December 2017 to 31 May 2018 the annual rate of child support payable by Mr Bird is increased by $800.

6. This was done because [Child 1] had special needs and the cost of the special needs, in this case her orthodontic and dental treatment, significantly affected the costs of maintaining [Child 1].  It was also done to reflect the income, property and financial resources of Mr Bird.

7. On 18 January 2018 Mr Bird objected to the original decision and on 23 March 2018 the Child Support Agency allowed the objection in part and made the decision that for the period from 25 October 2017 until such time as the case ends for both children the adjusted taxable income for Mr Bird is set at $49,200 per annum (the objection decision).

8. This was done to reflect the income, property and financial resources of Mr Bird.  A ground was not established in relation to the special needs of the child.

9. The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (the Act) and the Child Support(Assessment) Act 1989 (the Assessment Act).

10. The issue which arises in this case is whether or not to grant Mr Bird’s request for an extension of time to submit an application for review of a child support decision.

11. Part VIIA, Division 2 of the Act sets out the procedures for applying to the Tribunal for a review of an objection decision made by the Child Support Agency, as well as applying for an extension of time for such a review in the event the application is not made within the prescribed period.

12. Subsection 29(2) of the Administrative Appeals Tribunal Act 1975 establishes that an application for review must be made within 28 days of being served with notice of the decision.

13. If the 28-day period to apply for review has ended, then a written application for an extension of time can be made under section 91 of the Act. The Tribunal finds Mr Bird was advised about the outcome of the objection decision by electronic means in a letter from the Child Support Agency dated 23 March 2018. Given Mr Bird lodged his application more than 28 days after he was served with notice, the Tribunal is satisfied that an extension of time was required.

14. Under subsection 92(1) of the Act, the Tribunal must consider and grant or refuse an extension application. In doing so, the Tribunal considers the guiding principles for the exercise of 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 an extension of time should not be granted unless satisfied it was proper to do so, noting that, in general, applications or proceedings commenced outside of a prescribed time limit will not be considered.

15. A review of other relevant authorities establishes that when considering whether or not 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:

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

    ·     any prejudice to the general public; and

    ·     fairness in granting an extension of time.

Reasons for the delay

1. The Tribunal finds that Mr Bird’s application for an extension of time on 15 May 2019 in relation to the objection decision made on 23 March 2018, which he received by electronic means, is approximately 390 days out of time.  It is noted that Mr Bird submitted his application for review of the objection decision to the Tribunal on 3 May 2019.  To have been within the prescribed period Mr Bird’s application should have been made no later than 20 April 2018.

2. In seeking an extension of time, Mr Bird states as the reasons for the delay that he did not have any basis upon which to seek a review of his income until filing his tax return for the 2017–18 financial year.  Mr Bird states that he received his notice of assessment for the 2017–18 financial year on 11 March 2019 and this shows a taxable income of $19,935.

3. In his application to the Tribunal Mr Bird also states that after submitting his tax return he was due a refund but this was taken by the Child Support Agency.  He then contacted the Child Support Agency to express his concern and was advised in a letter dated 23 April 2019 of the need to appeal to the Tribunal.

4. The Tribunal notes in evidence from the Child Support Agency that on 23 March 2018 the objections officer contacted Mr Bird to inform him about the outcome of the objection decision.  During the conversation with the objections officer Mr Bird was informed of his appeal rights and acknowledged he understood these rights and the outcome of the decision.  Mr Bird told the objections officer he would follow up with his accountant.

5. The notification of the objection decision provided by the Child Support Agency dated 23 March 2018 also outlines what to do if Mr Bird disagreed with the decision.  This includes asking the Tribunal to undertake a review “within 28 days from the date you receive this letter”.  The words “within 28 days” are in bold which, in the view of the Tribunal, gives a clear indication of the importance of this timeframe.

6. Mr Bird has stated he was unable to appeal the objection decision until he determined the amount of his taxable income for 2017–18 by submitting his tax return for that financial year.  The 2017–18 financial year ended on 30 June 2018 but Mr Bird did not receive his notice of assessment until 11 March 2019.  This would indicate Mr Bird did not file his tax return until well after the end of the 2017–18 financial year.

7. Mr Bird has not provided the Tribunal with any reason why he may have been prevented from submitting his 2017–18 tax return within a timeframe that would have allowed his notice of assessment to be issued sooner.

8. The Tribunal is satisfied Mr Bird was aware of his appeal rights.  The Tribunal finds he has not provided a reasonable explanation for the lengthy delay in applying for a review of the objection decision and that he rested on his rights.

Merits of the application

1. Mr Bird is seeking a review of an objection decision which set his adjusted taxable income for the purposes of child support at $49,200 per annum. 

2. In his application to the Tribunal Mr Bird states that when the objection decision was made he was studying full time and as a result the income from his [business] was much less than the amount determined by the Child Support Agency.  Mr Bird submits that he has since filed his tax return and his 2017–18 income was $19,935.

3. In making any determination to depart from an administrative assessment, the Child Support Agency must first find a ground for departure. These grounds are listed in the Assessment Act and in this case it was on the basis of Mr Bird’s income, property and financial resources.

4. Mr Bird is a self-employed [occupation] who runs a business called [name].  The Tribunal notes that in setting his income for the purposes of child support, the Child Support Agency used his adjusted taxable income in 2016–17 as derived from the profit of the business and added to this an additional amount due to the personal benefits available to him through his business.

5. In examining the information in the documents provided by the Child Support Agency, including Mr Bird’s 2016–17 tax return, the Tribunal finds the approach taken by the objections officer to be reasonable.  As a self-employed person Mr Bird is able to claim business expenses which provide some personal gain.  This includes expenses such as telephone and motor vehicle expenses.  While this may be quite legitimate for tax purposes, the Family Court has found that such practices may not properly reflect the true financial resources or capacity of a person to contribute to the financial support of their children and may therefore be ignored.

6. The test of merit has alternatively been expressed as whether, were it to proceed, the application for review “would have good prospects of success” (Smith and Commissioner of Patents [2012] AATA 60 at [29]–[31]).

7. Based on the evidence available, the Tribunal finds Mr Bird’s application for review would not have good prospects of success on the ground of his income, property and financial resources.  The Tribunal therefore considers Mr Bird’s application has little merit.

Potential prejudice to Ms Bird and the wider public

1. Ms Bird should ordinarily be able to rely on the child support assessment once the time for objection has passed.  Given Mr Bird is approximately 390 days late in making his application for review, it would be reasonable for Ms Bird to consider the objection decision final.  The Tribunal finds Ms Bird would be significantly disadvantaged if an extension of time to lodge an objection was granted.

2. Time limits for the review of administrative decisions should be observed as strictly as possible in order to assist the proper administration of government agencies.  There is also a public expectation that there be a degree of certainty in relation to time limits, however, the law also allows for extensions of time.  In this case the Tribunal believes there would be prejudice to the general public if an extension of time to lodge an objection was granted.

Fairness in granting an extension of time as between Mr Bird and other persons in similar positions

1. The Child Support Agency notifies parties that they can seek a review of decisions with the Tribunal and they have 28 days within which to submit a request for such a review.  Most people comply within the 28-day timeframe.  It is clear the statutory time limit is to be enforced unless there are acceptable reasons for the delay.  The Tribunal is not satisfied Mr Bird’s circumstances are different to that of other applicants in a similar position.  The Tribunal finds that it would not be fair to others to grant Mr Bird an extension of time.

CONCLUSION

1. Mr Bird has not provided a satisfactory explanation for the lengthy delay in applying for a review of the objection decision.  The Tribunal could also find little merit to his application based on the evidence available.  There would also be prejudice to Ms Bird and the wider public should an extension of time be granted.

2. Having carefully weighed the various factors which it must take into account, the Tribunal finds it would not be proper to grant an extension of time to seek review of the objection decision made on 23 March 2018.  Accordingly, the extension application is refused.