Hembree and Child Support Registrar (Child support)

[2024] AATA 392

Hembree and Child Support Registrar (Child support) [2024] AATA 392 (15 January 2024)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2023/BC027089

APPLICANT:  Ms Hembree

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                15 January 2024

APPLICATION:

An extension application made on 21 November 2023 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 12 October 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 – not fair and equitable to permit extension – 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 A] and Ms Hembree are the parents of two children. There has been a child support assessment registered with Services Australia ‒ Child Support (Child Support) since 23 June 2020.

2. On 13 February 2023 Ms Hembree lodged a change of assessment application with Child Support. On 11 July 2023 a senior case officer refused to amend the administrative assessment. Ms Hembree lodged a timely objection. On 12 October 2023 an objections officer disallowed the objection.

3. Ms Hembree lodged an application to this Tribunal on 21 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 498) and the reasons for review outlined by Ms Hembree in her application.

ISSUES

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 Ms Hembree be granted an extension of time to lodge a request for review regarding the objections officer’s decision dated 12 October 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, Ms Hembree was sent electronic notification of the 12 October 2023 decision to disallow her objection to a departure determination. Ms Hembree then lodged an application for review with the Tribunal on 21 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 Ms Hembree rested on her rights

1. The Tribunal is satisfied that Ms Hembree lodged her application to this Tribunal 8 days late. When lodging her application, Ms Hembree provided an explanation as to her delay, summarised as follows. In the three years that she has been dealing with Child Support, immediately prior to an objection decision being made she has been telephoned by the objections officer. However, she never received a telephone call prior to the 12 October 2023 decision, and therefore she was not alerted to check her inbox. She states that she never received a text message alerting her to new mail in her myGov inbox. Ms Hembree also stated that she is currently studying and has sole care of the children, which contributed to her not checking her emails in a timely manner. The Tribunal notes that both children have special needs.[1]

   [1] At folio 344

2. The Tribunal notes that the covering letter attached to the objections officer’s decision clearly states that if Ms Hembree does not agree with the decision she can appeal to this Tribunal, warning that such an application must be made within 28 days of receipt of the letter. Ms Hembree does not submit that she never received notice of the decision, rather that she did not check her inbox and did not receive a telephone call from the objections officer alerting her to the fact that a decision has been made.

3. On balance, the Tribunal is persuaded that Ms Hembree had adequate reasons for the delay in lodging her application to this Tribunal eight days late. The Tribunal is satisfied that Ms Hembree did not rest on her rights.

The merits of Ms Hembree’s objection

1. The Tribunal finds that following an agreement reached between Ms Hembree and [Mr A], this Tribunal (differently constituted) determined that (relevant to this application) [Mr A]’s adjusted taxable income was varied to $150,000 for the period 1 June 2022 to 31 May 2023. Thus, at the time Ms Hembree lodged her departure application, this decision was in force.

2. In her departure application Ms Hembree stated that her reasons for seeking a review of the objections officer’s decision are:  

   Administrative Appeals Tribunal advised to re-assess child support payment if [Mr A]’s income is significantly higher than [Mr A] advised the tribunal at that time. Therefore an adjustment should be made. I already uploaded the Tribunals (sic) letter for evidence.[2]

   [2] At folio 329

3. In email correspondence following her application, Ms Hembree stated:

   The income [Mr A] has stated and declared does not correspond with his days out of the
   country to work and money spend. I know this as he tells the children he is going to work
   and the numbers he calls from are from countries like India. I’ve seen in the family court
   papers he has spent over 40.000 in lawyer fees, and he has a mortgage of a minimum of
   $1.000.000 to pay off as he bought our family home.

   I’m asking to please check both his passports, when he enters and exits the barge (working boat) it is stamped in his passport. I would be able to give an indication of dates he has been at work and the approximate location.
   He holds [Country 1] passport nr [redacted], ID [number]. [Country 2] [redacted]

   I’ve noticed [Mr A] has repeatedly opened and closed ABN, and changed the names and
   address with this ABN while not having relocated.

   The ABN [number] and names changed in different spelling of his name, like
   [Alias 1], [Alias 2]. [Alias 3], [Alias 4].

   His name is [Mr A]. [Name 1] is our sons second name, [Name 2] is our
   

   [3] At folio 2

   daughters second name.[3]

4. The objections officer summarised Ms Hembree’s position as:

   Ms Hembree stated that her income has not changed but it has been increased in the assessment. Ms Hembree stated that [Mr A] has change his income numerous times. Ms Hembree stated that [Mr A] works swings of 6-8 weeks on and 6-8 weeks off and it is not fair to re calculate the child support by identifying [Mr A] s off days as unemployed with no income. Ms Hembree stated that she believes that the estimated income of [Mr A] is not reflecting the costs of paying the mortgage, insurances, daily living cost and child support. In discussion Ms Hembree stated she believed that [Mr A’s] 2023 adjusted taxable income did not reflect the income he earned when he was overseas for 4-6 months.[4]

   [4] At folio 6

5. In her application to this Tribunal Ms Hembree states that her reasons for seeking a review of the objections officer’s decision are:  

   Ex-partner does not properly declare his income to ATO. Constantly underestimates his income. Uses several ABN’s constantly, closes and opens them[5]

   [5] At folio 1

6. In her discussion with a senior case officer she advised that she was seeking that [Mr A]’s 2022 adjusted taxable income be applied to the administrative assessment from 1 June 2022 to 31 May 2023. She also did not accept that [Mr A] was earning $115,859 per annum, as indicated by his 2023 adjusted taxable income. [Mr A] advised the objections officer that his 2022 adjusted taxable income was inflated due to it including $30,740 in capital gains and so was not reflective of his earning capacity.

7. As the Tribunal understands it, Ms Hembree is of the view that the father’s income and financial resources are not accurately reflected in the administrative assessment from 1 June 2022. As outlined above, Ms Hembree and [Mr A] reached an agreement that [Mr A]’s adjusted taxable income was to be varied to $150,000 for the period 1 June 2022 to 31 May 2023. The Tribunal, finding it just and equitable, set aside the decision under review on that basis. In the letter attached to that decision Ms Hembree was advised that she may appeal the decision on a question of law to the Federal Circuit and Family Court of Australia. It is not evident that Ms Hembree has done so. Thus, even if the Tribunal were to grant the extension application, it would not have jurisdiction to review the decision of 6 July 2022.

8. From 1 June 2023 [Mr A] was liable to pay $37,664 per annum in Child Support based on the parents’ 2022 taxable incomes of $324,258 ([Mr A]) and $34,176 (Ms Hembree). On 2 June 2023 the annual rate increased to $41,414 as the older child turned 13 years of age. This was based on [Mr A]’s reconciled income estimate of $270,000 and Ms Hembree’s 2022 adjusted taxable income. This annual rate decreased to $22,334 from 1 August 2023 based on [Mr A]’s 2023 adjusted taxable income of $115,859 and Ms Hembree’s derived income of $43,060.

9. The Tribunal considered the evidence relating to [Mr A]’s income from 1 June 2023, noting that he is a salary earner, working in [Industry 1], including bank account statements in evidence[6] which indicate that his net earnings in the period February to May 2023 were $81,103, the March and May 2023 payments corresponding to the payslips in evidence.[7] He also declared additional income earned in Australia of $26,336.20.[8] This income is largely consistent with [Mr A]’s 2023 adjusted taxable income of $115,859.

   [6] At folios 394 to 396 and 398

   [7] At folios 399 and 400

   [8] At folio 397

10. The Tribunal is of the view that, given the available evidence, the decision made by the objections officer is reasonable. Whilst there may be some merit to the application, there is no compelling evidence to suggest that another decision maker would make a decision more favourable to Ms Hembree.

Prejudice to [Mr A] and the wider public

1. The Tribunal does not consider that there would be significant prejudice to [Mr A] if an extension of time was granted given that the application was made only eight days late.

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 Ms Hembree an extension of time. This is largely because the application has limited 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 Ms Hembree an extension of time.

Conclusion

1. Weighing up all the relevant factors, the Tribunal is not persuaded that it is fair and equitable to extend the permissible time in which Ms Hembree can lodge her application. In the circumstances, the Tribunal has decided to refuse to grant an extension of time to Ms Hembree.