Campling and Child Support Registrar (Child support)

[2023] AATA 4011

Campling and Child Support Registrar (Child support) [2023] AATA 4011 (19 October 2023)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2023/SC026697

APPLICANT:  Mr Campling

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                19 October 2023

APPLICATION:

An extension application made on 31 August 2023 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 23 May 2023 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 – some merit – not fair and equitable – 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.

STATEMENT OF REASONS

1. Mr Campling and [Ms A] are the parents of [Child 1]. [Child 1] is recorded as being in [Ms A’s] 100% care. There has been a child support assessment in place from 19 February 2022 and child support has been collected by Services Australia (Child Support) from this date.

2. On 28 February 2023 Child Support made the decision to depart from the administrative assessment of child support following an application for a departure determination (change of assessment) lodged by [Ms A] on 11 November 2022. On 24 March 2023 Mr Campling objected to this decision and on 23 May 2023 an objections officer disallowed Mr Campling’s objection. Mr Campling was notified of the decision by Child Support via electronic notification on 23 May 2023.

3. Mr Campling lodged an application for review with the Administrative Appeals Tribunal (the Tribunal) on 31 August 2023. As this request for a review of the decision was not lodged with the Tribunal within 28 days of the objections officer’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 supplied by Child Support (pages 1–660) and the reasons for review outlined by Mr Campling in his extension of time application.

4. The issue to be considered is whether Mr Campling 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 Child Support (Registration and Collection) Act 1988 (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 six 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 (the AAT) 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. The Tribunal is satisfied that Mr Campling was advised of his right to seek review with the Tribunal in accordance with subsection 87(3) of the Act.

8. Mr Campling provided the reason for the extension of time application was because:

   Not all of the information was available at the time the decision was made. Now that 2023 taxes have been lodged. The Assessment was backdated to September 2022 and through to November 2024. Child Support has overestimated my income by $120,000 over 2 years, which has put me in significant financial strain over the past 12 months. None of the evidence I supplied in my objection was taken into consideration, including all of my legitimate business expenses, and has been based on turnover and not actual income. At one point I was asked to provide evidence within 7 days, which was not considered at all as it was favourable in my case.

9. Mr Campling states his reasons for the delay in this application to the Tribunal for a review of Child Support’s decision was because in part, he had not lodged his tax return for the financial year ending 30 June 2023. It is open to Mr Campling to lodge a change of assessment application with Child Support on the basis of this new income information.

10. Mr Campling’s application to the Tribunal was 72 days late. Accordingly, the Tribunal is not satisfied that there is an acceptable reason for the delay.

11. Mr Campling is self-employed in his company [Business 1]. It is well established in case law. In Voss & Child Support Registrar & Anor (SSAT Appeal) [2009] FMCAfam 1296 the court commented:

    …Where a simple reference to a person’s tax return does not provide an appropriate quantification of their capacity to provide financial support. Most commonly this occurs in cases involving the self employed, where it is well accepted that legal structures and arrangements may generate taxable income that doesn't properly reflect the realistic capacity of the person to provide financial support for their children.

12. While the Tribunal accepts there may be merit in Mr Campling’s application for review, the existence of any merit does not ameliorate the delay in Mr Campling seeking a review without an acceptable reason.

13. Additionally, the Tribunal has reviewed the decision by the objections officer and is satisfied that even if a more favourable decision is determined on appeal, given the delay in Mr Campling’s application for review with the Tribunal it is not proper to grant an extension of time in these circumstances.

14. The more appropriate action for Mr Campling to take is to lodge a change of assessment application on the basis of new information. As Mr Campling’s 2023 tax return was not available to the original decision-maker or the objections officer at the time of their decisions. This can be addressed by lodging a new application for a change of assessment to child support in accordance with section 98J of the Child Support (Assessment) Act 1989.

15. Section 98J provides a person who has made an application for a departure determination “is not precluded from subsequently making another application in respect of that assessment if, because of circumstances existing at the time when the subsequent application is made, there are grounds for departing from the administrative assessment.”

16. The Tribunal also considered that extending the period in the present circumstances would prejudice community expectations in relation to the finality and certainty of administrative decision making as well as cause prejudice to [Ms A] as a result of the delay in Mr Campling’s application for review.

17. Mr Campling has requested a review out of time. The Tribunal is of the view that he has not provided an adequate explanation for the delay. The Tribunal is also of the view that while there may be merit in reviewing the decision, it is not fair and equitable to do so given the circumstances of the case. There is a more appropriate avenue for Mr Campling to pursue and in the present circumstances, the Tribunal has decided to refuse to grant an extension of time to Mr Campling.

Senior Member S De Bono