Kovachevich and Child Support Registrar (Child support)

[2024] AATA 1184

Kovachevich and Child Support Registrar (Child support) [2024] AATA 1184 (28 March 2024)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2024/AC027447

APPLICANT:  Mr Kovachevich

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                28 March 2024

APPLICATION:

An extension application made on 31 January 2024 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 23 November 2023 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

CHILD SUPPORT – application for extension of time – explanation for the delay – moving house and working through the Christmas period – extra care of the children – little merit in the application – extension of time 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 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 A] and Mr Kovachevich are the parents of twins [named]. Both children are recorded as being in [Ms A’s] 73% care and Mr Kovachevich’s 27% care from 13 June 2023. The case has been registered with Services Australia (Child Support) from 29 June 2018 and collected by Child Support from the start of the assessment.

2. On 23 November 2023 an objections officer disallowed Mr Kovachevich’s objection to the decision made by Child Support on 18 September 2023 not to depart from the administrative assessment in place at the time of Mr Kovachevich’s change of assessment application made on 10 June 2023. Mr Kovachevich applied for a review of this decision with the Administrative Appeals Tribunal (the Tribunal) on 31 January 2024.

3. As this request for review was not lodged with the Tribunal within 28 days of Child Support’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 subsection 93(2) statement and documents (442 pages) provided by Child Support in accordance with the Child Support (Registration and Collection) Act 1988 (the Act) as well as the reasons for the extension of time outlined in Mr Kovachevich’s application for review.

4. The issue to be considered is whether Mr Kovachevich should be granted an extension of time to lodge an application for review of the Registrar’s decision.

LAW AND 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 Administrative Appeals Tribunal Act 1975 (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. 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, that is, that it was lodged within the allowed time (section 91 of the Act). 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 Brisbane South Regional Health Authority v Taylor [1996] HCA 25, 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.

4. In making this decision, I considered the guiding principles for the exercise of a discretion to allow an extension of time as set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (Hunter Valley Developments). 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 in general, applications or proceedings commenced outside of a prescribed time limit will not be considered. The court also said that there must be an acceptable explanation for the delay and that it must be fair and equitable in the circumstances to extend time. The Federal Court identified 6 factors to take into account when deciding whether to grant an extension of time.

5. In Brown v Commissioner of Taxation [1999] FCA 563, Hill J reviewed the principles set out in the Hunter Valley Developments case in the context of a person seeking an extension of time to lodge an objection against an assessment of income tax. In that case, Hill J commented that Wilcox J in Hunter Valley Developments never suggested he was laying down a series of principles to be applied in every case, and that the factors would serve as a guide and were not exhaustive. Further he commented that: “Too slavish an adherence to them should, in my view, be avoided.” Hill J then sought to reshape the factors to be considered in the context of objecting to a tax assessment.

6. The Administrative Appeals Tribunal has applied the principles set out in the Hunter Valley Developments case in Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42 (Mulheron). The authorities, Hunter Valley Developments and Mulheron, establish that when considering whether to exercise the discretion to allow an extension of time, a decision-maker should consider and balance a range of factors including:

   ·      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.

7. The Tribunal is satisfied that Mr Kovachevich was advised of his right to seek review with the Tribunal in accordance with subsection 87(3) of the Act. The Tribunal is satisfied Mr Kovachevich was notified of the objections officer’s decision electronically on 23 November 2023.

8. Mr Kovachevich provided reasons for needing an extension of time were moving house and working through the Christmas period as well as having extra care of the children over the school holidays, working long hours as [an occupation 1] during this period and looking after a family member who requires occasional care.

9. The Tribunal finds Mr Kovachevich does not have an acceptable reason for the delay in his application to the Tribunal. The Tribunal notes that this period is a busy time of year for people generally and Mr Kovachevich’s circumstances are not so unusual when compared with others. Mr Kovachevich would have had to have lodged his application for review with the Tribunal by 21 December 2023. Mr Kovachevich was  days late in his application to the Tribunal. The Tribunal is satisfied Mr Kovachevich has rested on his rights and does not have an acceptable reason for the delay in his application to the Tribunal.

10. On 5 November 2022 an objections officer made the decision to depart from the administrative assessment of child support on the basis that [Ms A’s] income, property and financial resources were not accurately reflected in the administrative assessment of child support (this is known as Reason 8A). As a result of this decision the following departure determination or change of assessment was made:

    ·For the period 1 March 2022 to 31 December 2025, the adjusted taxable income for [Ms A] is set at $150,000.

    This decision took into account income from [Ms A’s] [business 1] and lack of further information from [Ms A] about this activity.

11. The administrative assessment of child support at the time of Mr Kovachevich’s application for a change of assessment was as follows:

    ·For the period 1 September 2023 to 30 November 2024, Mr Kovachevich is assessed to pay an annual rate of $34. This assessment is based on Mr Kovachevich 2022/2023 Adjusted Taxable Income (ATI) of $71,033 and [Ms A’s] ATI of $150,000.

12. The objections officer determined that adding an additional $32,100 to [Ms A’s] ATI would not change the administrative assessment of child support to the point where Mr Kovachevich would pay no child support to [Ms A].

13. The Tribunal notes that as a result of the objections officer’s decision made on 5 November 2022 no child support has been payable by Mr Kovachevich to [Ms A] for the period 1 March 2022 to 31 August 2023. From 1 September 2023 Mr Kovachevich was assessed to pay [Ms A] $34 annually (or $1.30 fortnightly) in child support as a result of his ATI for the 2022/2023 financial year being $71,033.

14. The Tribunal notes that increasing [Ms A’s] ATI to $182,100 would mean Mr Kovachevich would pay no child support to [Ms A]. This is the outcome Mr Kovachevich wants from the change of assessment as well as an extension to the departure period.

15. The Tribunal is satisfied that there is little to no merit in Mr Kovachevich’s application for review given that his current child support payable to [Ms A] is $34 annually. The Tribunal also agreed with the reasoning of the objections officer to extend the departure period beyond 31 December 2025 would not be fair to [Ms A] given her circumstances at that time may have changed. It is open to Mr Kovachevich to lodge a further change of assessment closer to the end of the departure period.

16. The Tribunal finds there exists prejudice to the other party given the delay in Mr Kovachevich’s application for review. It is highly unlikely that a more favourable decision will be determined by the Tribunal on review. It is also possible that a more unfavourable decision for Mr Kovachevich may flow from a review of the Tribunal. The Tribunal finds that prejudice exists to the wider public given the delay in Mr Kovachevich’s application for review, as well as there being lack of merit in his application for review.

17. It is for these reasons the Tribunal has decided to refuse to grant Mr Kovachevich’s application for an extension of time for a review of the Registrar’s decision to the Tribunal. This is because the Tribunal is satisfied Mr Kovachevich has rested on his rights, he has not provided acceptable reasons for the delay in his application to the Tribunal, there exists little merit in his application for review, and given these circumstances it is not proper to grant an extension of time.

Senior Member S De Bono