BWCH and Principal Member, Social Security Appeals Tribunal

[2016] AATA 396

BWCH and Principal Member, Social Security Appeals Tribunal (Child support second review) [2016] AATA 396 (16 June 2016)

Division

GENERAL DIVISION

File Number

2014/0869

Re

BWCH

APPLICANT

And

Principal Member, Social Security Appeals Tribunal

And

FIRST RESPONDENT

Child Support Registrar

SECOND RESPONDENT

DECISION

Tribunal	Miss E A Shanahan, Member
Date	16 June 2016
Place	Melbourne

The Tribunal affirms the decision under review and as a result the applicant’s request for refund of her application fee is denied.

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

Miss E A Shanahan, Member

It is noted that the publication of this decision is approved by the Administrative Appeals Tribunal pursuant to s 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).

SOCIAL SECURITY – child support payments – disputed earnings – multiple requests to the agency for review of assessments – application to Social Security Appeals Tribunal (SSAT) – out of time – request for extension of time denied 20 December 2013 – application to the AAT second review – decision affirmed

Legislation

Child Support (Regulation and Collection) Act 1988

Child Support (Assessment) Act 1989

Cases

Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

REASONS FOR DECISION

Miss E A Shanahan, Member

16 June 2016

1. BWCH lodged an application with the Administrative Appeals Tribunal (AAT) on 14 February 2014 seeking review of the decision of the Social Security Appeals Tribunal (SSAT) of 20 December 2013, which denied her an extension of time to lodge applications for review of decisions of the Child Support Registrar (the Registrar) dated 8 September 2010 and 10 June 2011.

2. BWCH also sought a refund of the application fee of $875.00 (receipt was issued for $816.00) paid to the AAT on the basis that on 6 February 2015 the SSAT made a decision in her favour with respect to various objections she had lodged.  The child support payments by the father of the applicant’s son born on 19 May 2009 commenced on or about 18 June 2009.  The delay related to failures in documentation relating to the birth of the child.

3. Objections to the assessment of child support between 18 June 2009 and 19 November 2013 had been made by BWCH on six occasions and twice by the child’s father. The Child Support (Assessment) Act 1989 (the Assessment Act) provides that where an assessment is underway, an objection will not be considered until the current assessment is completed. The basis of BWCH’s objections relate essentially to her claim that the child’s father had fraudulently concealed his income in order to minimise his child support payments. She did not provide any evidence in support of these claims but directed the Registrar to make investigations on her behalf.

4. On 8 November 2013 BWCH lodged an application with the SSAT for an extension of time (EOT) in relation to the assessments made in 2009 (18 June to 16 November 2009) and in relation to assessments made in 2010. The 2010 assessments were for three periods, being for 31 December 2009 to 11 December 2010, 3 March 2010 to 24 March 2010 and 25 March 2010 to 14 November 2011.

5. The hearing of this matter has been conducted on the papers, presumably at the request of the applicant.  No evidence has been provided to support the applicant’s objections based on the failure of the child’s father to declare his income.  The basis of the applicant’s argument in relation to the EOT appears to relate to the interim order of the Federal Magistrates Court made by former Federal Magistrate Riethmuller, dated 14 December 2012. The interim order granted leave to the Registrar to make a determination, including any variation to a previous assessment in relation to the child born 19 May 2009, for any child support period that is more than 18 months. This order was made pursuant to s 112 of the Assessment Act.

6. In relation to the unsuccessful objections BWCH lodged in 2009 and 2010, the Registrar informed her in writing of their decision and also informed her of the right to appeal, this being limited to within 28 days of the decision.

   BACKGROUND TO THE APPLICATION

7. The application has already been considered in some detail but it is to be noted that BWCH has made frequent objections to almost every assessment of the Registrar over the period under review, which is some four years following the birth of the child.  Some of these objections have been successful and others have been rejected. 

8. The interim order made by the Federal Magistrates Court in 2012 empowered the Registrar to make any variation to a previous assessment that was more than 18 months old. However, such granting of leave does not imply that the Registrar is required to make a determination under s 98S of the Assessment Act, pursuant to s 112(8)(a) of the Assessment Act. The interim order was converted to a final order on 4 March 2013, a copy of the order having been provided by the father of the child.

9. On 23 April 2013 the SSAT made four determinations in relation to the taxable incomes of both parents.  One of these determinations covered the period in dispute, namely 1 July 2010 to 7 October 2012, when the father’s income was set as zero dollars per annum.  BWCH lodged an objection to this determination with the Child Support Agency, which did not have jurisdiction to review decisions of the SSAT. The Child Support Agency advised BWCH to seek a review of that objection decision by the SSAT. 

10. BWCH has also taken action in the Federal Magistrates and Federal Circuit Court on two occasions, the first of which has already been referred to and the second of which appears to have been in relation to the SSAT decision. Although Hughes J’s initial assessment was unable to identify a question of law as BWCH’s major argument appeared to be that the Child Support Agency had not investigated the father’s income status as she had requested, Her Honour adjourned the matter to an indefinite further hearing. 

11. BWCH has advised the AAT that the SSAT made a decision in her favour on 6 February 2015.  The decision has not been made available to this Tribunal. 

12. The only matters for consideration by this Tribunal are the SSAT’s decision to deny the EOT application on the 20 December 2013 and BWCH’s request that her application fee be waived on the basis that her earlier application to the SSAT was successful. 

    TRIBUNAL’S DELIBERATIONS

13. On 20 December 2013 Member J Longo, a delegate of the SSAT Principal Member, rejected BWCH’s application of 8 November 2013 for an extension of time to appeal the decisions of the Registrar dated 8 September 2010 and 10 June 2011.  Member Longo addressed the requirements outlined in s 90 of the Child Support (Regulation and Collection) Act 1988 (the Act) that a person must lodge a request for the review of a decision of the Registrar within 28 days of receipt of notice from the Registrar.  Clearly, BWCH’s application for an EOT was well outside the 28 day period, being nearly three years outside this period.  Member Longo detailed the events leading up to the application, as summarised under BACKGROUND TO THE APPLICATION in this decision and addressed the case law dealing with the request for an extension of time and the general concepts of time limitation periods.

14. The SSAT decision was based essentially on the decision in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344. The SSAT summarised the decision relating to the range of factors that should be taken into account in determining whether to exercise the discretion to allow an EOT, these being:

    The reasons for the delay and whether the applicant rested on their rights or took action to make the decision-maker aware that the decision was being contested;

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

    Any wider prejudice to the general public;

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

    The merits of the substantive application;

    Whether it is proper to grant the extension of time.

15. The SSAT determined that while BWCH had made the Registrar aware that she disagreed with the decision, she took no action to contest the decision until a considerable time had passed.  The SSAT determined that the applicant had rested on her rights during the period and had in fact made fresh applications rather than seek review of past decisions. 

16. The SSAT also considered the merits of BWCH’s applications for review by the Registrar. The applicant claimed that the father of the child was hiding his actual income in various ways without providing any supporting evidence and leaving the investigation to the Registrar.  It was accepted that the Registrar had considered the question of the father’s non-disclosure of income and took this into account in the decision of 10 June 2011.  The SSAT found that there was a lack of evidence to substantiate the claim that any new information had not been considered and therefore the current application was devoid of merit.

17. The SSAT considered that the paying parent, the father, would suffer prejudice should the EOT be granted.  The SSAT could not identify any public interest in the issues raised and therefore there would be no prejudice to the general public whether the EOT was or was not granted. 

18. This Tribunal agrees entirely with the reasons for the decision of Member Longo and the SSAT decision dated 20 December 2013. 

19. In her submissions to the AAT received on 14 January 2016, BWCH appears to have interpreted the interim court order of Federal Magistrate Riethmuller dated 14 December 2012 as being a mandatory instruction to the Registrar to make a determination in relation to child support periods more than 18 months old. The Act makes it clear that the granting of leave, be it interim or final, does not imply that the Registrar is required to make a determination under s 98S of the Assessment Act. In this case, the evidence suggests that the Registrar was in fact acting on the orders of the Federal Magistrates Court and proceeding to make a decision subject to existing objections when BWCH lodged a further application.

20. The order of the SSAT dated 23 April 2013 provided assessments for predominately different periods of time to those nominated by the applicant, despite the Registrar having determined that the start date for review in accordance with the Magistrates Court order was 15 June 2010.

21. Section 70 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) provides for regulations to set the application fees for appeals to the AAT and also for the Tribunal to waive such fees should an applicant succeed in an appeal. BWCH appears to believe that the Federal Magistrates Court, the Child Support Registrar, the SSAT and the AAT are one agency, tribunal or court. The fact that her applications to the SSAT were in part successful on 6 February 2015 is irrelevant to the question of waiver of AAT fees as the latter is dependent on the applicant’s success before the General Division of the AAT. The applicant has not been successful and the fee cannot be waived.

22. The decision of the SSAT of the 20 December 2013 is affirmed and the application by BWCH for a refund of her application fee is refused.

23.     I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

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

Associate

Dated 16 June 2016

Date of hearing on papers: 19 April 2016