Kovac and Child Support Registrar (Child support)

[2022] AATA 1561

Kovac and Child Support Registrar (Child support) [2022] AATA 1561 (6 April 2022)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2022/BC023394

APPLICANT:  Ms Kovac

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                6 April 2022

APPLICATION:

An extension application made on 1 March 2022 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 13 January 2022 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

CHILD SUPPORT – application for extension of time - no satisfactory explanation for the delay – some merit – prejudice to the wider public - extension of time 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. Ms Kovac and [Mr A] are the parents of two children. There has been a child support assessment in place since 22 February 2017.

2. On 29 July 2021 Ms Kovac lodged a change of assessment application with Services Australia ‒ Child Support (the Agency). After a decision was made by a senior case officer on 26 October 2021, Ms Kovac lodged a timely objection. On 13 January 2022 an objections officer partly allowed the objection, determining that for the period 10 August 2021 to 31 July 2024 [Mr A]’s adjusted taxable income is varied to $171,300, that from 1 February 2023 [Mr A]’s adjusted taxable income is varied by the relevant child support inflation factor and that for the period 30 November 2021 to 29 November 2022 Ms Kovac’s adjusted taxable income is increased by $10,000. 

3. Ms Kovac lodged an application to this tribunal on 1 March 2022. 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 the Agency (folios 1 to 788) and the reasons for review outlined by Ms Kovac in her application.

   ISSUES

4. 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).

5. The issue to be decided by the tribunal is should Ms Kovac be granted an extension of time to lodge a request for review regarding the objections officer’s decision dated 13 January 2022?

   CONSIDERATION

6. 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.

7. 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.

8. In this case, Ms Kovac was sent notification of the 13 January 2022 decision to partly allow her objection to a departure determination. Ms Kovac then lodged an application for review with the tribunal on 1 March 2022. 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.

9. 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.

10. 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 Kovac rested on her rights

11. The tribunal is satisfied that Ms Kovac lodged her application to this tribunal 18 days late. When lodging her application, she advised that she was suffering from bronchitis for more than two weeks and not able to get out of bed. She also reported that she was caring for her daughter, who was also unwell, and also had children home from school due to COVID, giving her little time to lodge the application.  Ms Kovac confirmed that she received notice of the decision made 13 January 2022 on 14 January 2022.

12. The tribunal is not satisfied that Ms Kovac had adequate reasons for the delay in lodging her application to this tribunal. Whilst it may be true that she was suffering from bronchitis and the children were sick and home from school, the tribunal is not satisfied that this prevented her from lodging the application within the requisite period. The tribunal is satisfied that Ms Kovac did rest on her rights.

    The merits of Ms Kovac’s objection

13. In her application Ms Kovac states that her reasons for application are as follows:

    [Mr A] has not done his tax in 4 years, business or personal. He has not lodged his employee
    information or super requirements in this time also. [Mr A] has a history of doing this and was in trouble in his late 20's having to pay a large sum of child support and tax to the ATO as they garnished all of his salary. It was also stated to me that [Mr A] has closed numerous accounts known to CSA however it is expected he has opened others in different banks. He did not comply with either investigation. There was little information to obtain to accurately assess [Mr A]'s income.

    I have also been asked questions in relation to Workcover by CSA. I believe [Mr A] is receiving money for himself or the business through an employee. The children have told me that he works when in his in care.

    There has been considerable amounts of money [Mr A] has not been accessed on due to dropping his salary to a low amount in the last 5 years whilst continuing to live off trust business accounts ($39k in 19 weeks investigated). I believe him to be using his trust, other accounts and workcover earnings to avoid paying to appropriate support to the children. I believe that an accurate salary be provided, work cover assessed and backpayments made to support the kids. I have received an additional $140 from the last decision however lost $400 in FBT.

14. As the tribunal understands it, Ms Kovac believes that [Mr A]’s income is higher than determined by the objections officer. She is correct in stating that there is limited information before Child Support which would allow it to accurately ascertain [Mr A]’s income. The objections officer considered the deposits into [Mr A]’s account over a 19-week period are a financial resource available to him. The objections officer also determined that [Mr A] would also receive the benefit of provision of a telephone and motor vehicle from his business. These net resources were then grossed up. The tribunal is of the view that this decision is not unreasonable, given the available evidence. Furthermore, the tribunal is satisfied that it was appropriate to depart from the administrative assessment until 2024, given that [Mr A] has a long history of not making a full and frank disclosure of his income and financial resources nor with complying with the requirement to lodge his income tax returns in a timely manner. The tribunal also notes that the objections officer’s decision to vary Ms Kovac’s income by $10,000 to reflect her drawing of superannuation is not controversial.

15. Ms Kovac has not provided any documentary evidence to support her allegations that [Mr A] is in receipt of WorkCover income. Of course it is possible that, on review, she may be able to provide documentation to support her contentions. On the other hand, it is possible that [Mr A] may provide evidence that his income has been overstated.

16. While there is arguable merit, there is no compelling evidence to suggest that another decision maker would make a decision more favourable to Ms Kovac.

    Prejudice to [Mr A] and the wider public

17. The tribunal does not consider that there would be significant prejudice to [Mr A] if an extension of time was granted.

18. 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

19. The tribunal finds that it would not be fair to others to grant Ms Kovac an extension of time. This is largely because Ms Kovac has rested on her rights and her application has limited merit.

    Whether it would be proper to grant an extension of time

20. The tribunal considers that in the circumstances of this case it would not be proper to grant Ms Kovac an extension of time.

    Conclusion

21. Ms Kovac requested a review out of time. She has not provided an adequate explanation for the delay and while the tribunal is of the view that there is some merit to her case, it is not so compelling that, weighing up the other relevant factors, it is fair and equitable to extend the permissible time in which she can lodge her application.  In the circumstances, the tribunal has decided to refuse to grant an extension of time to Ms Kovac.