Greenall and Child Support Registrar (Child support)
[2025] ARTA 249
•6 January 2025
Greenall and Child Support Registrar (Child support) [2025] ARTA 249 (6 January 2025)
Applicant/s: Ms Greenall
Respondent: Child Support Registrar
Tribunal Number: 2024/MC028807
Tribunal: Senior Member S Trotter
Place:Brisbane
Date:6 January 2025
Application: An extension application made on 3 November 2024 asking the Tribunal to consider the application for an eligible social services decision (first review) of the Child Support Registrar on 19 December 2023 despite the period for applying for review having ended.
Decision:The extension application is refused.
CATCHWORDS
CHILD SUPPORT – particulars of the administrative assessment – consideration of a change of assessment application – not fair to others to grant an extension of time – extension application is 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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.
Statement of Reasons
BACKGROUND
Ms Greenall and [Mr A] are the parents of [Child 1] (born April 2022) in relation to whom [Mr A] has been assessed by Services Australia – Child Support (Child Support) to pay child support to Ms Greenall.
On 31 May 2023, Child Support accepted [Mr A]’s 2022/2023 estimate of adjusted taxable income of $0 for the period 30 May 2023 to 30 June 2023.
On 22 June 2023, Ms Greenall lodged an objection in relation to the decision of 31 May 2023.
On 19 December 2023 Child Support disallowed the objection.
On 3 November 2024, Ms Greenall applied to the Tribunal seeking an independent merits review of Child Support‘s decision and included an application for an extension of time within which to lodge the application with the Tribunal. Ms Greenall provided a written statement as to why she failed to request review of the decision within 28 days of receipt of the decision as follows (unedited):
I cannot recall the exact dates, however I lodged a objection to [Mr A] new assessment paying of $40 and the previous lowered amount $140.
I currently am on work cover and this is expected to remain for the foreseeable future, I have been medically deemed with an incapacity to return to work and will remain on work cover payments indefinitely.
[Mr A] is a self employed business owner (or was at the time [Child 1] was conceived)
[Mr A] did not want this child or to be part of her life.
I went through a very lengthy legal process to obtain DNA testing and prove parentage and once he was deemed the biological father and ordered by the courts liable for child support he manipulated his assets and business structure so that he pays the minimum in child support payments and to the detriment of his child.
In considering the application, I took into account the documentary material provided by Child Support (marked Exhibit 1, pages 1 to 238) together with written submissions dated 6 November 2024, and attachments, from Ms Greenall addressing her extension of time request.
ISSUES
The law relating to a person’s right to seek review of a decision of the Registrar is found in section 18 of the Administrative Review Tribunal Act2024 (the ART Act). Subsection 18(3) of the ART Act requires that a person must lodge a review request with the Tribunal within 28 days after a notice of the decision of the Registrar had been served on them.
Where the period for lodgement has ended, the Act provides that 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, meaning that an extension of time request may be made. Section 92 of the Act relevantly provides that the Tribunal must consider the application for an extension of time, grant or refuse that application and advise the person of the decision in writing.
I am satisfied, based on Child Support’s records in evidence before me, that Ms Greenall was sent notification of the 19 December 2023 decision on that same date. Ms Greenall lodged an application for review with the Tribunal on 3 November 2024. Her application to the Tribunal was therefore more than 28 days, and nearly a year after, being notified of the decision such that consideration needs to be given to whether an extension of time is granted.
In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 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.
In making my decision, I considered the guiding principles for the exercise of the discretion to allow an extension of time as set out in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176. 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 generally applications commenced outside of the prescribed time limit will not be considered.
A consideration of the relevant case authorities establishes that when deciding whether to allow an extension of time, the Tribunal should consider and balance a range of factors. These factors are a guide and are not exhaustive, but generally include:
(a) the reasons for the delay and whether the applicant rested on their rights;
(b) the merits of the substantive application;
(c) any prejudice to the other party including any difficulties that they will experience in providing evidence as a result of the delay;
(d) wider prejudice to the general public;
(e) fairness in granting an extension of time as between the applicant and other persons in a similar position; and
(f) whether it is proper to grant the extension of time.
More recently these principles were restated by Collier J in Englezos v Secretary, Department of Social Services [2023] FCA 31.
I considered each of these factors as follows.
The reasons for the delay and whether Ms Greenall rested on her rights
Ms Greenall addressed a number of reasons for her delay in her written submissions, including temporary homelessness requiring her to reside with family but only being able to do so for a limited time, her mental capacity and diagnosed conditions of major depressive disorder, anxiety, acute stress, post traumatic stress disorder, stress resistant rash, OBD and OCD with affects including memory loss and impacted ability to make decisions and judgements. Ms Greenall has not provided any medical evidence in support of these submissions. Nonetheless, I accept as submitted that Ms Greenall was impacted by these matters with a consequent impact upon her seeking a review within 28 days.
Given the many matters impacting upon Ms Greenall, I am satisfied that in the circumstances Ms Greenall has not rested on her rights.
The merits of Ms Greenall’s application
Ms Greenall’s reasons for objecting to Child Support’s original decision is expressed to be because [Mr A] ‘has not acted in good faith’ and that at the time of his declared income of $0, he had ample time, opportunity and resources to plan and prepare so that his retirement and current finances did not deprive his child of financial support. Notably, Ms Greenall does not submit that [Mr A]’s income was other than $0 as estimated at the current time. Rather her submissions address actions Ms Greenall contends [Mr A] should have taken to provide for the child. Further, Ms Greenall provides documents about entities in which [Mr A] is contended to have interests.
Child Support’s records show that [Mr A] contacted Child Support on 29 and 30 May 2023 advising that he had not been working for the last few months and that he had applied for age pension, and that it was on that basis that he estimated annual income of $0 from 30 May 2023. This resulted in a reduction of the then assessed child support payable by [Mr A].
A person’s child support liability is determined using a child support formula which takes into account a number of factors including the adjusted taxable incomes of the parents, which is the taxable income from the previous tax year that ended before the start of the child support period (plus any supplementary amounts).
Section 60 of the Act allows a person to lodge an income estimate. The period covered by the estimate commences on the day on which the person makes the estimate or the day on which the child support period commences, whichever is the later. The period ends at the end of the financial year.
The estimate is an annualised amount of the person’s taxable income and supplementary amounts for the estimate period. A parent can make an income estimate for a whole year of income or for a part year of income.
In respect of an estimate for a part year of income, the parent must provide their adjusted taxable income from the start of the financial year to the beginning of the estimate period (their year to date (YTD) income) and an estimate of income for the remaining period. Child Support then reconciles the estimate when information is available from the Australian Taxation Office for the relevant financial year.
Pursuant to subsection 61(1A) of the Act, when Child Support accepts a parent’s estimate election, their income estimate amount becomes their adjusted taxable income amount for the purposes of assessing the annual rate of child support payable in the application period.
After the end of the relevant financial year, Child Support compares the parent’s estimated income with their actual income for that year. This is known as an estimate reconciliation. Pursuant to subsection 64A(2) of the Act, If the parent’s actual income is more than their estimated income, the child support assessment is amended using their actual income.
On 10 October 2023, Child Support recalculated the child support assessment for the period 22 September 2023 to 30 June 2024 based upon a new income figure of $37,568 provided by [Mr A]. This resulted in an increase to the child support payable by [Mr A].
Subsequently, on 18 March 2024, Child Support reconciled [Mr A]’s 2022/2023 income for the 2022/2023 financial year, from $0 to $85,444.21 resulting in a further and increase to the child support liability.
I have not conducted a substantive review of the objection decision and am not required to in relation to the extension of time application. However, I am of the view that Ms Greenall’s application has little if any prospect of success. The evidence suggests that at the time [Mr A] provided a nil estimate he was not working and was not yet in receipt of age pension. Upon payment of age pension starting, he provided a new income figure and, further, his 2022/2023 income was subsequently reconciled by Child Support in accordance with the usual procedures provided for in the legislation for the giving of estimates and subsequent reconciliation.
Of note, it appears that Ms Greenall’s actual issue is not so much with the income estimate of $0, which was in a place for a very limited time, and subsequently reconciled, but rather Ms Greenall seems to be contending that [Mr A] has unexercised earning capacity and/or income, financial resources or property not recognised in the usual administrative assessment of child support. As noted by the objections officer in their decision (page 56 of Exhibit 1), parents may apply to have an assessment changed if there are special circumstances including of the nature contended by Ms Greenall. The Tribunal is not able to provide advice is this regard, however, Ms Greenall may wish to explore her options of lodging such a change of assessment application in relation to what appears to be her contention about [Mr A] having unexercised earning capacity and/or income, financial resources or property not recognised in the usual administrative assessment of child support. That is a separate and different issue to the application relating to the estimate and requires an application to and decision by Child Support.
Prejudice to [Mr A] and the wider public
The other parties to the review in this matter are the Child Support Registrar and [Mr A]. I am satisfied that neither the Child Support Registrar nor [Mr A] would suffer prejudice were the extension of time to be granted.
I am satisfied, however, that there would be prejudice to the wider public if the extension of time were granted, as it may lead to unnecessary administrative costs and would be contrary to community expectations regarding the finality and certainty of administrative decision-making within a timely period after the making of the decision. Parliament has seen fit to set a 28-day time limit for the lodgement of objections so that parents (and Child Support) can act with certainty as to the outcome when the objection period has elapsed. The public has an interest in reviews of decisions made by Child Support being performed in a timely fashion and in a manner that ensures all applicants are treated fairly and equally. Accordingly, an extension of the time for objection is not to be automatically granted.
Fairness in granting an extension of time as between the applicant and other persons in a similar position
Given my conclusion that the substantive application has little if any merit, and rather that Ms Greenall’s contention seems to alternatively warrant consideration of a change of assessment application, I do not consider it would be fair to others to grant Ms Greenall an extension of time.
Whether it would be proper to grant an extension of time
In the circumstances of this case, it would not be proper to grant Ms Greenall an extension of time.
Conclusion
Weighing up all the relevant factors, I am not satisfied that it is fair and equitable to extend the permissible time in which Ms Greenall can lodge an application for review of the objection decision given.
Ms Greenall’s application for an extension of time to seek review of the 19 December 2023 decision is therefore refused.
DECISION
The extension application is refused.
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