KNSM and Child Support Registrar (Child support second review)
[2024] AATA 3184
•6 September 2024
KNSM and Child Support Registrar (Child support second review) [2024] AATA 3184 (6 September 2024)
Division:GENERAL DIVISION
File Number: 2023/7212
Re:KNSM
APPLICANT
AndChild Support Registrar
RESPONDENT
AndSZMH
OTHER PARTY
DECISION
Tribunal:Member P Ranson
Date:6 September 2024
Place:Brisbane
Pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal refuses to extend the time for the making of an application for review of the Child Support decision dated 5 May 2023.
................................[SGD]........................................
Member P Ranson
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.
Catchwords
CHILD SUPPORT – extension of time – length of delay in applying for review – initially applied incorrectly to QCAT – awareness of appeal rights – explanation for delay not accepted – whether the merits of the substantive application must be considered – substantive merits not found based on tax return provided – whether there is prejudice to the respondent and other party – public interest considerations – extension of time refused
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Cases
Hunter Valley Developments Pty Ltd v Cohen, Minister of Home Affairs and Environment [1984] FCA 186
Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516Smith and Commissioner of Patents [2012] AATA 60
REASONS FOR DECISION
Member P Ranson
6 September 2024
BACKGROUND
KNSM (the father) and SZMH (the mother) have a son now aged 18. At the relevant time, he was 16. The father was paying child support to the mother, and he disputes a change of assessment made by the Child Support Registrar (CSR). He says the income they set for him is too high and he wants to challenge that. However, the problem is he applied out of time for a review of the decision, so he has applied for an extension of time (EOT) to apply. The mother does not agree to the EOT, and the CSR adopt a neutral position on the matter.
For reasons best understood by him, the father lodged his appeal with the Queensland Civil and Administrative Tribunal (QCAT). He says he was confused at the time as he had other matters on his mind notwithstanding the fact, he had previously lodged appeals with the Administrative Appeals Tribunal (the Tribunal), so he was familiar with the process. He says QCAT told him they could handle the appeal. Once the error was discovered, the father lodged his appeal application with the Tribunal and by then it was out of time.
There is a provision in the QCAT Act by which cases can be referred to other places if QCAT does not have the jurisdiction to hear them. However, this provision does not appear to apply in this case.
The CSR refused to grant the EOT, and the father applied to the Social Security Division of the Tribunal for a review of that decision, which affirmed the decision not to grant the EOT to appeal the objection decision (AAT1).
There is abundant case law to guide a decision maker in assessing whether an EOT should be granted. One of the criteria to be considered is the merits of the substantive case.
The issues in this case are whether the father has an adequate reason for the delay in lodging his appeal, the merits of his case, and who might be disadvantaged if he is granted an EOT.
For the following reasons, the extension of time to appeal is refused.
WHAT HAPPENED?
On 5 May 2023, an objections officer refused the father’s application for an extension of time to appeal the change of assessment (objection decision). The father had lodged an appeal request on 21 May 2023, which was in time, however, he did so incorrectly to QCAT. Curiously, even though he had already lodged an appeal to QCAT instead of the Tribunal, the father called the CSR on 30 June 2023, and said he had not received the objection decision. They told him it had been sent to him via his myGov account.
Then on 7 July 2023, he said he was unable to locate the objection decision in his myGov account and requested a paper copy be sent to him. He said that was the way he usually received documents from the CSR, even though he had agreed to receive such notices electronically to his myGov account. Finally, on 16 July 2023, he lodged an appeal to the Social Security Division of the Tribunal. After the AAT1 decision was made, he lodged an appeal to the General Division of the Tribunal for a second review of that decision.
Following the hearing on 17 June 2024, the Tribunal issued directions as follows:
1. On or before 1 July 2024, the Applicant must give to the Respondent and the Tribunal:
a. a copy of the Applicant’s 2023 Income Tax Return as lodged including evidence of lodgement;
b. a copy of the Applicant’s QCAT application and accompanying documents; and
c. any and all correspondence to and from QCAT in regard to this matter.
2. On or before 15 July 2024, the Respondent must give to the Tribunal any written closing submissions together with a submission on the relevance or otherwise of section 52 of the Queensland Civil and Administrative Act 2009 (Qld).
EXTENSION OF TIME CRITERIA
In its assessment of an EOT application, the Tribunal has historically considered the following[1]:
(a)the length of the delay in applying for review;
(b)the Applicant’s awareness of appeal rights and explanation for the delay;
(c)the prospects of success if the extension of time is granted, that is, the merits of the substantive application,;
(d)any prejudice to the Respondent or Other Party if the extension of time is granted, including any difficulties they will experience in providing evidence because of the delay; and
(e)any relevant public interest considerations, such as, fairness in granting an extension of time as between the Applicant and others in a similar position.
REASONS:
[1] Hunter Valley Developments Pty Ltd v Cohen, Minister of Home Affairs and Environment [1984] FCA 186.
Length of delay
The objection decision was sent to the father on 5 May 2023 when it was lodged in his myGov account. He had 28 days to appeal that decision, that is, until 2 June 2023. The valid appeal application was lodged on 16 July 2023, that is, 44 days late.
The father says he lodged his appeal of the objection decision with QCAT because Centrelink advised him to do that and QCAT accepted the application without question. The Tribunal finds that implausible because no contemporaneous evidence was provided to confirm those assertions.
He provided copies of two such appeal applications. One is dated 22 May 2023 and the other is dated 4 July 2023. There appears to be no difference between the two applications. He says QCAT eventually told him they could not deal with the appeal and returned it to him in their letter dated 14 July 2023.
The Tribunal is not satisfied an adequate explanation exists for the delay in seeking a review, because the records show the father was notified of the decision electronically on 5 May 2023. The decision was posted on his myGov account, which he had agreed to use to receive electronic communications.
There is no evidence the father has literacy issues or was suffering from a medical condition which would impede his ability to make a timely application. The Tribunal accepts an appeal application was made to QCAT (twice), however, the covering letter by the CSR provides clear instructions in relation to further review avenues to the AAT.
Accordingly, the Tribunal finds there are no cogent reasons given for the delay in seeking a review.
Knowledge of appeal rights and reason for the delay
As stated above, the father has previously lodged appeal applications with the Tribunal, so he was familiar with the process.
The Tribunal requested copies of the QCAT applications as lodged, which were provided. The Tribunal also requested copies of all correspondence with QCAT on this matter and none were provided other than a letter to him from QCAT dated 14 July 2023. That letter advised him they could not deal with the matter because he had not paid the requisite fee and he had not provided a copy of the decision he sought review of. That means those applications were never accepted by QCAT, so the provisions in the QCAT Act which accommodate transfer to other courts and tribunals cannot apply. This was confirmed by the CSR in their closing submissions dated 10 July 2024.
The Tribunal finds the father did not have a lack of knowledge of his appeal rights.
Merits of the application
The original change of assessment made on 28 September 2022 set the father’s adjusted taxable income at $92,000. He said that was wrong because it assumed the income deposited into his bank account was net of tax. The correct position is those amounts were gross and the CSR later changed the assessment to record his income at $67,000 from 1 June 2022.
Prior to the hearing, the father had not lodged his personal income tax return for the 2023 financial year. Given the change of assessment he objects to begins on 1 June 2022, the 2023 financial year is highly relevant to an assessment of his income and in turn, the merits of the application for review.
At the hearing he was asked to lodge his 2023 income tax return and provide the Tribunal with a copy of it including proof of lodgement to assist with determining the merits of his case. He did that well after the due date of 1 July 2024 as stated in the directions of 17 June 2024. Nonetheless, it has been considered by the Tribunal.
The 2023 income tax return for the father is unsigned and there is no evidence it has been lodged with the Australian Taxation Office (ATO). The father was asked to provide evidence of its lodgement and he replied on 21 August 2024 with:
‘My 2023 tax return is up to my tax accountant to submit my tax return so once I receive the submission from my tax accountant I will forward this to you.’
The Tribunal does not accept that the father was waiting for his accountant to lodge his 2023 income tax return as an acceptable excuse because the unsigned copy of it appears to show it has been prepared for electronic lodgement, which the Tribunal knows can be done quickly. Given the relevance of this document, the Tribunal expected the father to expediate compliance with the directions of 17 June 2024. The Tribunal also cannot provide endless procedural fairness to any party and will wait no longer.
Turning to the father’s 2023 income tax return, it shows taxable income of $32,169 after a claim for rent of $20,592 and motor vehicle expenses of $8,060. The return also shows estimated eligible income of $62,679. The other expenses in the return are unremarkable. The Tribunal makes no assertion about the tax deductibility of the rent and motor vehicle expenses, however, it questions why such deductions should be allowed for child support purposes when the father is a nurse who works on a contractual basis. At $62,679, the estimated eligible income is proximate to the assessed amount of $67,000.
The Tribunal has considered the merits of the application, however, it is not required to forensically assess the matter for the purposes of this extension of time application.[2] On review of the evidence before it, the Tribunal is satisfied the decision of the CSR relating to the change of assessment and specifically income assessment, has been sufficiently grounded in material reasonably capable of supporting it.
[2] Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516 Per Brennan CJ and McHugh J at [3], [also Kirby J at 66].
Accordingly, the Tribunal finds the merits of the substantive application are weak, and further review by the Tribunal is unlikely to be successful.[3]
[3] Smith and Commissioner of Patents [2012] AATA 60 at [29-31].
Prejudice to the Respondent or Other Party
The Tribunal finds the delay in seeking a review prejudices the mother because she is entitled to consider the matter finalised after the expiry of the review period.
The CSR has stated that they would not be prejudiced if the EOT was granted.
Public interest considerations
Finally, there is prejudice to the general public due to unnecessary administration costs which would not be afforded to other individuals in similar circumstances especially where the timeframe for review was clearly articulated in the decision statement and covering letter forwarded by the CSR.
CONCLUSION
Considering all the above reasons, the Tribunal is not satisfied it is reasonable in all the circumstances to grant the extension of time.
DECISION
Pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal refuses to extend the time for the making of an application for review of the Child Support decision dated 5 May 2023.
I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Member P Ranson
................................[SGD]........................................
Associate
Dated: 6 September 2024
Date of hearing: 17 June 2024 Date final submissions received: 26 August 2024 Applicant: Self-represented Solicitors for the Respondent: Ms Gillian Gehrke
Services AustraliaThird Party: Self-represented
Key Legal Topics
Areas of Law
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Family Law
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Administrative Law
Legal Concepts
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Appeal
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Procedural Fairness
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Jurisdiction
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