Greenwood and Child Support Registrar (Child support)

[2024] AATA 393

Greenwood and Child Support Registrar (Child support) [2024] AATA 393 (15 January 2024)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2023/BC027057

APPLICANT:  Mr Greenwood

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                15 January 2024

APPLICATION:

An extension application made on 14 November 2023 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 7 February 2023 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

CHILD SUPPORT – extension of time to apply to tribunal – no adequate explanation for delay – no apparent merit to application for review – not fair and equitable to extend time for application – extension application 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. Mr Greenwood and [Ms A] are the parents of two children. There has been a child support assessment in place since 19 June 2001, collected by Services Australia – Child Support (Child Support) since 9 October 2019.

2. On 12 July 2022 Mr Greenwood lodged an income estimate of $87,078 for the period 12 July 2022 to 30 June 2023. His application was refused on 13 July 2022.

3. On 16 July 2022 Mr Greenwood lodged a further income estimate of $87,078 for the period 16 July 2022 to 30 June 2023. On 26 July 2022 Child Support refused to accept this income estimate.

4. On 31 October 2022 Mr Greenwood objected to the decisions to refuse to accept his 12 July 2022 and 16 July 2022 income estimates. His extension of time application was granted on 11 December 2022.

5. On 7 February 2023 his objection to the refusal to accept his 12 July 2022 income estimate was disallowed. It is apparent that an objections officer has not reviewed the decision to refuse his income estimate on 16 July 2022.

6. Mr Greenwood lodged an application to this Tribunal on 14 November 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 documents supplied by Child Support (folios 1 to 181) and the reasons for review outlined by Mr Greenwood in his application.

ISSUE

1. The relevant legislation is contained in the Administrative Appeals Tribunal Act 1975 (the AAT Act) and the Child Support (Registration and Collection) Act 1988 (the Act).

2. The issue to be decided by the Tribunal is should Mr Greenwood be granted an extension of time to lodge a request for review regarding the objections officer’s decision dated 7 February 2023?

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 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. Section 91 of the Act states that, 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 within the allowed time. 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 this case, Mr Greenwood was sent notification of the 7 February 2023 decision to disallow his objection electronically. Mr Greenwood then lodged an application for review with the Tribunal on 14 November 2023. As this request for a review of the decision was not lodged within 28 days, an application for an extension of time must now be considered.

4. 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 limitation periods, noted that while a grant of an extension of time is the exception to the general rule, justice may be served by the general rule being overruled in particular circumstances.

5. The Tribunal 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 other relevant authorities establishes that when considering 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:

   ·     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.

The reasons for the delay and whether Mr Greenwood rested on his rights

1. The Tribunal is satisfied that Mr Greenwood lodged his application to this Tribunal over eight months after the expiration of the 28-day period. When lodging his application, he provided no explanation as to the reason for delay. It is also noted that Mr Greenwood was granted an extension of time in which to lodge his objection to the original decision in this matter, so the Tribunal is satisfied that he was aware of the need to lodge timely applications if he was dissatisfied with a decision.

2. In this case Mr Greenwood has provided no reasons for his delay. In such circumstances, the Tribunal is not satisfied that Mr Greenwood had adequate reasons for the delay in lodging his application to this Tribunal. Certainly, the letter advising him of the objection decision outlined his further appeal rights and advised that he had 28 days from the day of receipt of the notice.[1] There is no evidence before this Tribunal to suggest that Mr Greenwood was prevented from lodging the application within the requisite period. The Tribunal is satisfied that Mr Greenwood did rest on his rights.

The merits of Mr Greenwood’s objection

[1] At folio 2

1. Mr Greenwood lodged an income estimate based on his declaration that his weekly income was $1,670 for the period 12 July 2022 to 30 June 2023.[2] His employer advised Child Support on the same day that his actual weekly income was $2,091.35.[3]

   [2] At folio 9

   [3] At folio 10

2. In the Tribunal’s view there is no arguable merit to the application. Certainly, there is no compelling evidence to suggest that another decision maker would make a decision more favourable to Mr Greenwood.

Prejudice to [Ms A] and the wider public

1. The Tribunal does consider that there would be significant prejudice to [Ms A] if an extension of time was granted.

2. The Tribunal is satisfied 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.

Fairness in granting an extension of time as between the applicant and other persons in a similar position

1. The Tribunal finds that it would not be fair to others to grant Mr Greenwood an extension of time. This is largely because Mr Greenwood has rested on his rights and his application has no merit.

Whether it would be proper to grant an extension of time

1. The Tribunal considers that in the circumstances of this case it would not be proper to grant Mr Greenwood an extension of time.

Conclusion

1. Mr Greenwood requested a review out of time. He has not provided an adequate explanation for the delay. There is no apparent merit to his application. Weighing up all the relevant factors, the Tribunal is not persuaded that it is fair and equitable to extend the permissible time in which he can lodge his application. In the circumstances, the Tribunal has decided to refuse to grant an extension of time to Mr Greenwood.