Clough and Child Support Registrar (Child support)

[2020] AATA 5848

Clough and Child Support Registrar (Child support) [2020] AATA 5848 (14 December 2020)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2020/MC019792

APPLICANT:  Mr Clough

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                14 December 2020

APPLICATION:

An extension application made on 3 September 2020 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 13 April 2020 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 – merit in the case is not compelling – 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 Clough and [Mrs A] are the parents of children in respect of whom there is a child support liability.

2. On 13 April 2020 Mr Clough was advised by letter of the decision to disallow his objection to an original decision made by Services Australia – Child Support (the CSA) on 2 October 2019, not to depart from the administrative assessment of child support. The objections officer found that no ground for departure from the administrative assessment was established. The letter of 13 April 2020 included information about Mr Clough’s review rights, including information about how to contact the AAT and the requirement to do so within 28 days.

3. On 3 September 2020 Mr Clough lodged an application for review with the AAT in relation to the decision made on 13 April 2020, together with an application for an extension of time, setting out why the review was not lodged within the 28-day time limit.

4. On 14 December 2020 I determined the application for an extension of time to lodge the application. In making the decision I had regard to the information in Mr Clough’s extension of time application and to the subsection 37(1) statement and documents provided by the CSA.

ISSUES

1. The law relating to a person’s right to seek review of a decision of the Registrar is contained in the Child Support (Registration and Collection) Act 1988 (the Act). Section 90 of the Act provides that under paragraph 29(1)(d) of the Administrative Appeals Tribunal Act 1975, a person is generally required to lodge an application for review of a decision of the Registrar with this tribunal within 28 days after a notice of the decision is given to them.

2. Where the period for lodgement has ended, the person may send the application for review to the tribunal along with an application requesting 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 Act). Section 92 then provides that the AAT must consider the application for an extension of time, grant or refuse that application and advise the person of the decision in writing.

CONSIDERATION

1. The notice of the objections officer’s decision was sent to Mr Clough on 13 April 2020. As Mr Clough’s application for a review of the decision was not lodged within 28 days, he applied to the tribunal for an extension of time to lodge the review and I must now consider whether to grant that application. In making my decision I must apply the law and I am guided by decisions made by courts or tribunals, as discussed below.

2. 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.

3. 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] FCA 186 (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.

4. 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.

5. The AAT (second review) applied the principles set out in the Hunter Valley Developments case in Mulheron and Australian Telecommunications Corporation [1991] AATA 673 (Mulheron). The authorities, including 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 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.

6. In his application for an extension of time Mr Clough stated that he did not lodge his application for review within the required timeframe because he was engaging in mediation with the assistance of his legal representative. He said this was made more difficult as a result of the COVID19 situation. He indicated that as no agreement was forthcoming, he is seeking to have the decision of the CSA reviewed by the AAT.

7. The available evidence shows that Mr Clough was advised of his appeal rights but delayed making his application for about five months. While he states that this delay was the result of the time taken to engage in mediation, which proved unsuccessful, I note that engaging in mediation did not prevent him also lodging an application with the tribunal.  I was satisfied that in failing to do so, Mr Clough rested on his rights. I was not satisfied that there is a reasonable explanation for the delay in this case.

8. I also considered the merit of the application.

9. Determinations to depart from the administrative assessment of child support are made under Part 6A of the Act. Section 98C provides that the Registrar may make a determination to depart from the formula assessment and establishes a three-step process. The Registrar must be satisfied there is ground for a departure from the administrative assessment, that it is just and equitable to do so and that it is otherwise proper.

10. The tribunal did not conduct a substantive review of the objections officer’s decision, which affirmed the original decision not to depart from the administrative assessment of child support.

11. In his application for an extension of time Mr Clough states that [Mrs A] is not working despite having the capacity to do so, but this has never been questioned. I note, however, that this issue was addressed by the objections officer, who concluded that the pre-conditions for assessing a parent on the basis of an earning capacity were not met. This conclusion is consistent with the evidence, which suggests that [Mrs A] last worked full-time in 2014/15, and the evidence of [Mrs A] that she is currently in receipt of a carer payment. I was also satisfied that the other grounds for departure raised by Mr Clough were addressed by the objections officer, and Mr Clough has not articulated any fundamental flaw in the conclusions of the objections officer. I note that some of the issues raised by Mr Clough, in relation to the matrimonial home for example, will, as discussed by the objections officer, be addressed as part of the financial settlement between the parties. I concluded that the merit in this case is not compelling.

18.Having reviewed the available evidence, I concluded that while there may be arguable merit in Mr Clough’s application, it is not compelling, and there is nothing on the face of the objections officer’s decision to suggest it is not the correct or preferable decision.

19.I also considered the prejudice to the other party to the child support case, to the CSA and to the general public, should the extension of time be granted.

20.I concluded that there could be prejudice to [Mrs A] as she could be assessed to have been overpaid child support for a period during which she had reasonably relied on the determination of the child support payable under the administrative assessment. I note, however, that the CSA’s records indicate that in September 2020 the amount of child support owed by Mr Clough was in excess of $11,000.

21.I concluded that there would be limited prejudice to the CSA or the general public in this case if the extension of time application was granted.

Conclusion

1. I carefully weighed the various factors which I had to consider. I concluded that the explanation for the delay in this case was not reasonable and Mr Clough rested on his rights. While there is arguable merit, I concluded that the merit of Mr Clough’s case is not compelling. Some of the issues raised by Mr Clough will be addressed through the financial settlement between him and [Mrs A]. I was not persuaded that it would be fair or proper in the circumstances of this case to depart from the usual timeframe for lodging an application. I decided, therefore, to refuse to grant an extension of time for Mr Clough to lodge an application for review of the decision of the objections officer dated 13 April 2020.