Lebaigue and Child Support Registrar (Child support) - [2024] AATA 3585

Lebaigue and Child Support Registrar (Child support) [2024] AATA 3585 (22 August 2024)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2024/MC028243
APPLICANT:  Mr Lebaigue
OTHER PARTY:  Child Support Registrar
DATE DECISION MADE:                22 August 2024
TRIBUNAL:Senior Member S De Bono

APPLICATION:

An extension application made on 9 July 2024 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 31 May 2024 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

CHILD SUPPORT – refusal to grant an extension of time to object – explanation for the delay – little merit – extension application 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

Ms Lebaigue and Mr Lebaigue are the parents of [Child 1]. [Child 1] is currently recorded as being in Ms Lebaigue’s 77% care and Mr Lebaigue’s 23% care from 1 January 2023. There has been a registered child support case with Services Australia (Child Support) from 6 April 2021 with Child Support collecting from the start of the assessment.
On 31 May 2024 an objections officer disallowed Mr Lebaigue’s objection to the decision made by Child Support on 9 January 2024 following Mr Lebaigue’s application to change the administrative assessment on 1 December 2023.
Mr Lebaigue applied for a review of this decision with the Administrative Appeals Tribunal (the Tribunal) on 9 July 2024.
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 (555 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 Lebaigue’s application for review.
The issue to be considered is whether Mr Lebaigue should be granted an extension of time to lodge an application for review of the Registrar’s decision.

LAW AND CONSIDERATION

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.
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.
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.
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.
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.
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.
I am satisfied that Mr Lebaigue 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 Lebaigue was notified of the objections officer’s decision electronically on 31 May 2024.
Mr Lebaigue writes that he was late in his application to the Tribunal because he has had a lot going on in his personal life and work and he failed to get his application submitted on time. I note for Mr Lebaigue to have submitted his application to the Tribunal within 28 days he would have had to submit his application by 27 June 2024. Mr Lebaigue was 11 days late in his application to the Tribunal.
In balancing a range of factors when considering whether to grant an extension of time, I also considered whether there exists merit in Mr Lebaigue’s application for review. While Mr Lebaigue’s application to the Tribunal was not significantly delayed, I am not satisfied that Mr Lebaigue’s reasons for his extension of time application adequately explains his delay in his application to the Tribunal. I am satisfied Mr Lebaigue has rested on his rights and does not have an acceptable reason for the delay in his application to the Tribunal. In making this decision I have also considered whether there exists merit in Mr Lebaigue’s application for review.
Mr Lebaigue is of the view that Ms Lebaigue’s ATI would be more accurately set at $68,356, based on income from employment and rental income from her investment property. While I am not required to make a substantive decision, I do note that the information provided by Ms Lebaigue shows her rental property is positively geared and her home loan on this property is currently on a fixed rate of 2%. The fixed rate is due to finish in September 2024 and any current profit will likely be reduced when the loan changes from a fixed rate to a variable rate in September 2024.[1] Information before the Tribunal shows this property was rented from 30 October 2023.[2] I am satisfied that this is the case because rental income is not shown on Ms Lebaigue’s tax return for the financial year ending 30 June 2023.[3]
[1] Page 298 of the subsection 93(2) Statement and Documents in accordance with the Child Support (Registration and Collection) Act 1988.
[2] Page 366 of the subsection 93(2) Statement and Documents.
[3] Page 322 of the hearing papers.
I can see that Ms Lebaigue’s profit from her rental property may be in the vicinity of about $8,463 for the 2023/2024 financial year as indicated by the spreadsheet provided by her. Ms Lebaigue is currently assessed on an income for the formula assessment of child support of $56,804 which is her adjusted taxable income for the 2022/2023 financial year. Increasing Ms Lebaigue’s income by $8,463 increases Ms Lebaigue’s ATI to $65,267.
Mr Lebaigue’s child support is assessed on an income of $89,896 for the period 1 September 2023 to 16 January 2024 (which was post separation income), and then $118,861 for the period 17 January 2024 to 30 November 2024. Calculating Mr Lebaigue’s child support liability on the basis of increasing Ms Lebaigue’s income to $65,267 results in an increase to Mr Lebaigue’s child support payments from $5,526 to $6,033 annually following on from the post separation income for Mr Lebaigue. Calculating Mr Lebaigue’s child support liability on the basis of his ATI of $118,861 results in an increase in Mr Lebaigue’s child support liability from $8,755 to $9,208 which is an increase in his child support liability from $453 annually or $8.71 weekly. It is my view that this does not render the child support assessment unfair, such that the formula assessment should be departed from.
There was no evidence before me that Ms Lebaigue has changed her working pattern to affect the formula assessment of child support. Ms Lebaigue provided information to Child Support which indicates her payments of family assistance have reduced, which may indicate her income has actually increased. Based on the information before me, I am satisfied that there exists little to no merit in Mr Lebaigue’s application for review and it is highly unlikely that a more favourable decision will be made by the Tribunal on review.
While the Tribunal accepts that neither party would have difficulty in supplying information relevant to the review, I am satisfied given the delay in Mr Lebaigue’s application to the Tribunal and the existence of little merit in his application, that it is prejudicial to the other parties to grant an extension of time when there exists little to no merit in the review.
It is important that decisions and reviews of administrative assessments are made on a timely basis so that necessary financial support can be provided to the children of the assessment. Any delay may cause hardship for them and the parent providing care, and any delay may also mean a parent is placed in a position where they are required to pay back money to the paying parent if it is determined they have paid too much. If an extension of time is allowed, this may place the parent in receipt of child support in a difficult position and cause undue hardship if a different determination was made at a much later date.
Accordingly, in the circumstances I am not satisfied that it is proper to grant an extension of time to Mr Lebaigue. The extension of time is refused.