Giffey and Child Support Registrar (Child support)

[2023] AATA 4303

Giffey and Child Support Registrar (Child support) [2023] AATA 4303 (9 November 2023)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2023/SC026879

APPLICANT:  Ms Giffey

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                09 November 2023

APPLICATION:

An extension application made on 9 October 2023 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 17 July 2023 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

CHILD SUPPORT – application for extension of time – departure determination - no adequate explanation for the delay – little merit – prejudice to the other parent – 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. Ms Giffey and [Mr A] are the parents of [Child 1]. [Child 1] is recorded as being in Ms Giffey’s 100% care. A registered child support assessment has been in place from 23 October 2017 and registered for Services Australia (Child Support) collection from that date. [Mr A] is the parent liable to pay child support.

2. On 1 May 2023 Child Support made the decision to depart from the administrative assessment of child support following an application for a departure determination (known as a change of assessment) lodged by Ms Giffey on 2 December 2022. On 11 May 2023 [Mr A] objected to this decision and on 17 July 2023 an objections officer partially allowed [Mr A’s] objection. The decision was sent to Ms Giffey via post on 18 July 2023. Ms Giffey is deemed to have received the notice of the decision on 23 August 2023.[1]

   [1] This is in accordance with section 29 of the Acts Interpretation Act 1901 which states:

   Meaning of service by post

   (1)Where an Act authorises or requires any document to be served by post, whether the expression "serve" or the expression "give" or "send" or any other expression is used, then the service shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

   This is worked out by adding 5 working days (Ms Giffey lives in NSW) to the date the decision was sent to Ms Giffey on 18 July 2023 = Wednesday 26 July 2023 + 28 days = 23 August 2023 deemed date of receipt.

3. Ms Giffey lodged an application for review of the decision with the Administrative Appeals Tribunal (the Tribunal) on 9 October 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 1–375) and the reasons for review outlined by Ms Giffey in her extension of time application.

4. The issue to be considered is whether Ms Giffey 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 6 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 Ms Giffey was advised of her right to seek review with the Tribunal in accordance with subsection 87(3) of the Act.

8. Ms Giffey provided the reason for the extension of time application was because:

   Other parent has not revealed his true income as he earns cash through his [business] and [another job]. He works extended hours. He has more earning capacity and potential than me as he only takes the child 3–4 hours a week. I manage and raise my child on my own fulltime.

   So, finally this led to prompting me to go for a review with the AAT which I was previously undecided about. I have attaching the email regarding my mediation happened on 14^th Aug. I request you to give me extension as decision is applied for next 3 years; if it is not reviewed this year, it is a long time my child be denied her fair dur as has been happening for last 6 years.

   Further my child recently been hospitalized which further delayed my application.

9. Ms Giffey provided a medical certificate for [Child 1] indicating she was admitted to hospital from [late] September 2023 to 1 October 2023. The email regarding mediation was not provided to the Tribunal by Ms Giffey.

10. Ms Giffey was deemed to have received the decision from the objections officer on 23 August 2023. Ms Giffey lodged her application with the Tribunal on 9 October 2023. In order for Ms Giffey to have lodged her application for review within 28 days of the deemed date of notification, Ms Giffey would have had to lodge her application for review with the Tribunal by 20 September 2023. Ms Giffey was 19 days late to the Tribunal in her application for review.

11. Ms Giffey states her reasons for the delay in her application to the Tribunal were in part related to indecision about applying for review and further delay because her daughter was unwell and admitted to hospital. The Tribunal is not satisfied that indecision about whether to apply for a review is an acceptable reason for the delay. While the Tribunal is sympathetic to [Child 1’s] hospitalisation this does not seem to be the main reason for Ms Giffey’s delay in her application to the Tribunal. Accordingly, the Tribunal is not satisfied that Ms Giffey has provided an acceptable reason for the delay.

12. The administrative assessment in place prior to Ms Giffey’s change of assessment application was as follows:

    •    For the period 1 March 2022 to 30 November 2022 an annual rate of $5,103 was payable by [Mr A] based on his 2020–2021 adjusted taxable income (ATI) of $60,607 and Ms Giffey’s 2020–2021 ATI of $101,694. Ms Giffey had above primary care of [Child 1].

13. On 1 May 2023 Child Support made the decision to depart from the administrative assessment and made the following change to the assessment:

    •    For the period 2 December 2022 to 31 December 2024, [Mr A’s] ATI is set at $97,000 and Ms Giffey’s ATI is set at $97,000.

    •    Arrears of $3,896.13 will be created for [Mr A] as a result of this decision.

14. The practical effect of the decision meant that the annual rate of child support payable by [Mr A] as a result of this decision increased from $5,103 to $8,999.13 for the period 2 December 2022 to 31 December 2024.

15. The objections officer set aside this decision and decreased [Mr A’s] child support liability from $8,999.13 to $7,800 for the period 2 December 2022 to 31 December 2025.

16. The difference in child support liability for [Mr A] between the original change of assessment decision made on 1 May 2023 and the decision of the objections officer made on 17 July 2023 has resulted in a reduction of [Mr A’s] child support liability of $1,199.13 annually (or $23.06 weekly). While the Tribunal acknowledges that the objections officer has lengthened the departure period when compared with the original decision, there exists no impediment that prevents Ms Giffey from lodging another change of assessment application at a later date if she has new information about [Mr A’s] income, earning capacity, property and financial resources. The Tribunal is not satisfied that a more favourable administrative assessment would flow from a review at this time given the evidence before it. It is on this basis the Tribunal is satisfied that there exists little merit in Ms Giffey’s application for review.

17. 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 [Mr A] as a result of the delay in Ms Giffey’s application for review.

18. Ms Giffey has requested a review out of time. The Tribunal is of the view that she has not provided an adequate explanation for the delay. The Tribunal is also of the view that while there may exist some merit in reviewing the decision, it is not fair and equitable to do so given the circumstances of the case. The Tribunal has decided to refuse to grant an extension of time to Ms Giffey.