Lanaford and Child Support Registrar (Child support)

[2024] AATA 2524

Lanaford and Child Support Registrar (Child support) [2024] AATA 2524 (23 May 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/MC027258

APPLICANT:  Mr Lanaford

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member H Moreland

DECISION DATE:  23 May 2024

DECISION:

The decision under review is affirmed. This means the extension of time application is refused.

CATCHWORDS

CHILD SUPPORT – application for extension of time – explanation for the delay – some merit – failure to lodge tax return – extension of time refused – decision under review affirmed

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.

REASONS FOR DECISION

BACKGROUND

1. This review concerns whether an extension of time should be granted to allow Mr Lanaford to lodge an objection to a decision made by Services Australia ‒ Child Support (Child Support).

2. Mr Lanaford and Mrs Lanaford are the parents of [four named children]. There has been a child support assessment in place since 21 April 2019 and Mr Lanaford is currently the parent liable to pay child support to Mrs Lanaford.

3. On 12 May 2023, Child Support decided to apply Mr Lanaford’s “actual income” of $150,358 for the 2020/21 financial year to the child support assessment.

4. On 5 July 2023, Mr Lanaford lodged an objection to this decision and requested an extension of time to object to the decision. On 29 November 2023, an objections officer rejected Mr Lanaford’s request for an extension of time.

5. On 27 December 2023, Mr Lanaford lodged an application to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal), seeking a review of the decision to refuse his application for an extension of time in which to lodge his objection. The matter was heard on 23 May 2024. Mr Lanaford attending the hearing in person and gave evidence on affirmation. The Tribunal had regard to documents provided by Child Support (numbered 1–256), as well as oral evidence provided by Mr Lanaford at the hearing, in making its decision.

CONSIDERATION

1. Legislation relevant to this review is contained in the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act) and the Child Support (Assessment) Act 1989 (the Assessment Act).

2. The issues to be decided by the Tribunal are:

   ·     whether Mr Lanaford’s objection was lodged outside the statutory time frame; and if so

   ·     should he be granted an extension of time to object to the decision made by Child Support on 12 May 2023.

3. According to subsection 80(1) of the Registration and Collection Act, a party to a child support assessment must lodge an objection in writing to various decisions; and according to section 81 of the Registration and Collection Act, a person must lodge an objection to such a decision within 28 days after a notice of the decision is served on them.

4. According to section 82 of the Registration and Collection Act, after this 28-day period has ended, a person is able to apply for an extension of time to lodge an objection. Section 83 of the Registration and Collection Act provides that the Registrar must consider the application for extension of time, then grant or refuse that application and advise the person of the decision in writing. According to section 89 of the Registration and Collection Act, a person can apply to the Tribunal for a review of any such decision by the Registrar.

5. The child support legislation does not set out principles for determining whether extensions of time for objections should be granted or not. The Tribunal, however, notes the case of Brisbane South Regional Health Authority v Taylor,[1] in which the High Court held that there are legislative provisions which provide for extensions of time in cases where the general principle that an extension of time is an exception should be overruled in the interests of justice being better served.

11.Guiding principles for exercising a discretion to allow for an extension of time were set out by the Federal Court in the case of Hunter Valley Developments Pty Ltd v Cohen (Hunter Valley Developments).[2] In Hunter Valley Developments, the Federal Court held that an applicant for an extension must show an “acceptable explanation of the delay” as a “pre-condition” to the exercise of the discretion to allow extensions of time. The Court prefaced this by stating “the Court will not grant the application unless positively satisfied that it is proper to do so”, and further noted, “it is the prima facie rule that proceedings commenced outside [the prescribed] period will not be entertained”. Several factors were identified by the Federal Court to be taken into account when a decision-maker is determining whether to grant an extension of time.

[1] (1996) 186 CLR 541.

[2] (1984) 3 FCR 344.

1. In Mulheron and Australian Telecommunications Corporation (Mulheron)[3] the Administrative Appeals Tribunal applied the principles set out in Hunter Valley Developments. Taken together, Hunter Valley Developments and Mulheron provide that a decision-maker, when considering whether they should exercise their discretion to allow for an extension of time, should consider and balance the following factors:

   1.Reasons for delay.

   2.Action taken by the applicant.

   3.Prejudice to the respondent and the general public (is it fair to others in the same position?).

   4.Merits of the objection.

   5.Is it proper? Proceedings commenced outside the prescribed time will not be entertained unless it is proper to do so.

   [3] (1991) 14 AAR 42.

2. As shown in the Child Support documents, Mr Lanaford was notified electronically of Child Support’s decision of 12 May 2023. Mr Lanaford did not object to this decision until 5 July 2023.

3. Consequently, the Tribunal considered these 5 factors in determining whether there should be an extension of time in Mr Lanaford’s case.

Factors 1 and 2: Reasons for delay and action taken

1. Mr Lanaford told the Tribunal that the reason he was delayed in objecting to the decision of Child Support was that he was unaware that such a decision had been made.

2. Mr Lanaford told the Tribunal that he doesn’t tend to read notices issued to him by Child Support but rather, relies on alerts regarding outstanding amounts of child support payable by him. In this case, Mr Lanaford said that as a result of Child Support’s decision, he received an alert that he owed around $1,700 in child support, and when he received that, he paid it immediately. This was an amount owed under “agency collect” arrangements.

3. Mr Lanaford said that it wasn’t until later, on 30 June 2023, when Mrs Lanaford contacted him to inform him that there was around $8,000 payable to her under the “private collect” child support arrangements, as a result of Child Support’s decision, that Mr Lanaford realised that Child Support had made its decision.

4. Mr Lanaford told the Tribunal that he then reviewed his files at home, in order to understand what had happened, before requesting a review of the decision on 5 July 2023.

Factor 3: Prejudice to the respondent and general public (is it fair to others in the same position?)

1. The Tribunal considered whether there would be prejudice to the receiving parent, Mrs Lanaford, given the length of time since the decision was made and concludes that there would be. Mrs Lanaford has relied on the 12 May 2023 decision since that time and would potentially incur a Child Support debt should an extension of time be granted to Mr Lanaford.

2. In this case, Child Support’s decision was as a result of Mr Lanaford failing to lodge his 2010/21 income tax return on time. Mr Lanaford told the Tribunal that he was not very good at administration and had relied upon Mrs Lanaford, prior to their separation, to administer their affairs. Mr Lanaford also told the Tribunal that had he realised that failing to lodge his income tax return on time would affect his child support case, he would have taken action to complete his income tax return sooner. The Tribunal, having reviewed the Child Support documents, notes that Mr Lanaford was issued notices informing him of the importance of lodging his income tax return so that child support estimates could be made accurately. Mr Lanaford also told the Tribunal that he was overwhelmed by the amount of notices he receives.

3. The Tribunal concludes that Mr Lanaford was informed by Child Support of the importance of lodging his income tax returns for the purpose of determining the rate at which he should pay child support to Mrs Lanaford. Further, there is an obligation on taxpayers who are required to lodge income tax returns to lodge them on time and this deadline is the same as the deadline for child support purposes.

4. In addition, the Tribunal considered that it was not in the public interest for Mr Lanaford’s request for review to be considered by the Tribunal because Mr Lanaford’s matter does not relate to interpreting issues of wider interest to the public; the matter relates only to Mr Lanaford’s personal circumstances and his failure to lodge his 2020/21 income tax return on time. The Tribunal finds it would be prejudicial to the general public if an extension of time were granted in Mr Lanaford’s case because there is a public expectation of certainty regarding time limits.

Factor 4: Merits of the objection

1. The Tribunal also considered the merits of Mr Lanaford’s objection to the decision of the Registrar. The Tribunal finds that Mr Lanaford does have an arguable case. This is because while Child Support determined that Mr Lanaford’s 2020/21 actual income was $150,358.00,[4] ultimately, Mr Lanaford’s 2020/21 taxable income appears to have been $143,695.[5]

   [4] Child Support papers, p 12.

   [5] Child Support papers, p 247.

Factor 5: Is it proper?

1. While the Tribunal finds that Mr Lanaford has an arguable case, the Tribunal concludes it would not be proper for an extension of time to be granted. This is because Mr Lanaford’s objection, ultimately, is due to Mr Lanaford’s failure to lodge his income tax return on time. Further, Mr Lanaford was advised of his right to request a review by Child Support in its original decision. Mr Lanaford may have been overwhelmed by communications from Child Support but ultimately Child Support advised Mr Lanaford not only of the importance of him lodging income tax returns on time but also of his right to request a review of its decision, as long as it was done within 28 days.

2. The Tribunal notes it is important, for the benefit of the scheme and for the welfare of children, that participants in the Child Support scheme adhere to the rules set out in legislation and corresponding policy, including where time limits are prescribed.

CONCLUSION

The Tribunal acknowledges that it appears Mr Lanaford has an arguable case but, balancing the 5 relevant factors, the Tribunal finds that an extension of time would not be in the overall interest of justice. This means the Tribunal refuses Mr Lanaford’s application for an extension of time for the Tribunal to review the decision of the Registrar dated 12 May 2023.

DECISION

The decision under review is affirmed. This means the extension of time application is refused.