Florey and Child Support Registrar (Child support)

[2022] AATA 1564

Florey and Child Support Registrar (Child support) [2022] AATA 1564 (30 March 2022)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2022/BC023339

APPLICANT:  Mr Florey

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                30 March 2022

APPLICATION:

An extension application made on 21 February 2022 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 11 September 2021 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 lengthy delay – arguable merit – prejudice to the other parent and general public 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 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 11 September 2021, a delegate of the Child Support Registrar (the Registrar) advised Mr Florey that they had decided to disallow his objection to an income estimate decision that had been made on 4 June 2021.

2. On 21 February 2022, Mr Florey lodged a request for review with the Tribunal, including an application for an extension of time regarding the decision made on 4 June 2021.

3. The issue to be considered is whether Mr Florey should be granted an extension of time to lodge an application for review of the Registrar’s decision. The Tribunal had regard to the documents from the Registrar’s file regarding this matter and the written application from Mr Florey regarding his request for an extension of time.

CONSIDERATION

1. According to subsection 29(2) of the Administrative Appeals Tribunal Act1975 (the AAT Act) a person must lodge a request for a review by the Tribunal of a decision by the Registrar within 28 days after a notice of the decision is served on them. Section 91 of the Child Support (Registration and Collection) Act 1988 (the Act) however, provides that if the aforementioned 28-day period has ended, the person may send an “extension application” to the Tribunal and this written application must include the reasons for the person’s failure to lodge a request for review within the 28-day period. Section 92 of the Act provides that the Tribunal must consider the application for an extension of time and grant or refuse that application and provide the applicant with written reasons as to why the request was granted or refused.

2. In Mr Florey’s case, he was sent notification of the Registrar’s decision on 11 September 2021, disallowing his objection to the original decision made on 4 June 2021. Mr Florey lodged his application for review of the Registrar’s decision on 12 February 2022. As this request for a review of the decision was not lodged within 28 days, Mr Florey has applied for an extension of time and the Tribunal must now consider whether to grant an extension of time to lodge the review.

3. The Tribunal notes the case of Brisbane South Regional Health Authority v Taylor,[1] in which the High Court held that there are legislative provisions which provide for extensions of time in cases where the general principle that an extension of time is an exception should be overruled in the interests of justice being better served.

   [1] (1996) 186 CLR 541.

4. Guiding principles for exercising a discretion to allow for an extension of time were set out by the Federal Court in the case of Hunter Valley Developments Pty Ltd v Cohen (Hunter Valley Developments).[2] In Hunter Valley Developments, the Federal Court held that an applicant for an extension must show an “acceptable explanation of the delay” as a “pre-condition” to the exercise of the discretion to allow extensions of time. The Court prefaced this by stating “the Court will not grant the application unless positively satisfied that it is proper to do so”, and further noted, “it is the prima facie rule that proceedings commenced outside [the prescribed] period will not be entertained”. Several factors were identified by the Federal Court to be taken into account when a decision-maker is determining whether to grant an extension of time.

   [2] (1984) 3 FCR 344.

5. In Mulheron and Australian Telecommunications Corporation (Mulheron)[3] the Administrative Appeals Tribunal applied the principles set out in Hunter Valley Developments. Taken together, Hunter Valley Developments and Mulheron provide that a decision-maker, when considering whether they should exercise their discretion to allow for an extension of time, should consider and balance the following factors:

   1.Reasons for delay

   2.Action taken by the applicant

   3.Prejudice to the respondent and the general public (is it fair to others in the same position?)

   4.Merits of the objection

   5.Is it proper? Proceedings commenced outside the prescribed time will not be entertained unless it is proper to do so.

   [3] (1991) 14 AAR 42.

6. Consequently, the Tribunal considered these five factors in determining whether there should be an extension of time in Mr Florey’s case.

Factor 1: Reasons for delay

10.In his application for review, Mr Florey stated, “When child support advised me of the decision I did not think I could appeal it. I only found out today when I spoke to CSA that I could appeal the decision. So I am lodging it now.”

11.The Tribunal notes however, that Mr Florey was advised in writing, in the Registrar’s decision, that he had appeal rights to the Tribunal. The notice provided to Mr Florey stating that his objection had been disallowed included the following statement on the front page:

If you do not agree with this decision
If you think this decision is wrong, you can ask the Administrative Appeals Tribunal (AAT) to review it. You must do this within 28 days from the date you receive this letter. You can contact the AAT by going to their website aat.gov.au or calling them on 1800 228 333.[4]

[4] Child Support papers, p 145.

12.The Tribunal also notes that a file note from Child Support notes that Mr Florey was advised of his Tribunal appeal rights on 1 September 2021.[5] The Tribunal concludes that even if this file note is not accurate, Mr Florey was informed of the requirement to request a review within 28 days in the notice he received on 11 September 2021.

[5] Child Support papers, p 148.

13.On the basis of the evidence before it, the Tribunal is satisfied that Mr Florey has rested on his rights and that he did not seek review notwithstanding receiving information about his rights of review from the Registrar in the notice of the decision sent on 11 September 2021.

Factor 2: Action taken by applicant

14.There is no evidence before the Tribunal that Mr Florey, despite saying he disagreed with the decision, sought any advice on his rights of review.

Factor 3: Prejudice to the respondent and general public (is it fair to others in the same position?)

15.The Tribunal considered that there would be prejudice to [Ms A] given the length of time since the decision was made and concludes that there would be. She has relied upon the decision made on 4 June 2021 and the decision to disallow the objection on 11 September 2021. Further, the Tribunal considered that it was not in the public interest for Mr Florey’s request for review to be considered by the Tribunal because Mr Florey’s matter does not relate to interpreting issues of wider interest to the public, the matter relates only to Mr Florey’s personal circumstances. The Tribunal finds it would be prejudicial to the general public if an extension of time were granted in Mr Florey’s case because there is a public expectation of certainty regarding time limits.

Factor 4: Merits of the objection

16.The Tribunal also considered the merits of Mr Florey’s objection to the decision of the Registrar. Having reviewed the papers, the Tribunal concludes that Mr Florey does have an arguable case because it does appear that his income has been overestimated by Child Support because they used the total carer payment Mr Florey received, rather than the base rate of carer payment. The overestimation however, was caused by Child Support making an assessment of Mr Florey’s income based on him informing them that he received income support from Centrelink, rather than Mr Florey providing Child Support with an actual figure. Further, the Tribunal notes that Mr Florey appears to contend that COVID-19 supplements are not assessable income for the purpose of Child Support but, the Tribunal observes, they are assessable income for Child Support because they are classed as ordinary income.

Factor 5: Is it proper?

17.While the Tribunal finds that Mr Florey has an arguable case, as noted above, Mr Florey was informed of his right to seek review of the Registrar’s decision and the need for such an application for review to be made within the prescribed timeframe, in writing and, on the basis of Child Support’s records, orally. The Tribunal notes it is important, for the benefit of the scheme and for the welfare of children the scheme is designed to provide for, that participants in the Child Support scheme adhere to the rules set out in legislation and corresponding policy, including where time limits are prescribed.

CONCLUSION

Mr Florey has not provided the Tribunal with an adequate explanation for his delay in requesting a review of the Registrar’s decision. The Tribunal acknowledges that it appears Mr Florey has an arguable case but, balancing the five relevant factors, the Tribunal finds that an extension of time would not be in the overall interest of justice. This means the Tribunal refuses Mr Florey’s application for an extension of time for the Tribunal to review the decision of the Registrar dated 11 September 2021.