LZPS and Child Support Registrar (Child support second review)
[2024] AATA 92
•31 January 2024
LZPS and Child Support Registrar (Child support second review) [2024] AATA 92 (31 January 2024)
Division:GENERAL DIVISION
File Numbers: 2023/1105, 2023/1106, 2023/1107
Re:LZPS
APPLICANT
AndChild Support Registrar
RESPONDENT
AndMSPS
JOINED PARTY
DECISION
Tribunal:Senior Member D. J. Morris
Date:31 January 2024
Place:Melbourne
The decision under review, which is the refusal by the Social Security and Child Support Division of the Tribunal under s 92 of the Child Support (Registrationand Collection) Act 1988 to extend time for a First Review, in relation to the decision of the Child Support Registrar not to extend time for consideration of objections to three decisions made on 24 November 2021, is itself affirmed.
..........................[SGN]..............................................
Senior Member D. J. Morris
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
PRACTICE AND PROCEDURE – extension of time – provisions in AAT Act regarding extending time not applicable in this case – applicant seeks review of First Review decision of Tribunal to affirm a decision not to extend time to make an application to the Social Services and Child Support Division of the Tribunal – party joined as her interests identified as being affected – is it reasonable in all the circumstances to extend time – relevant factors – Tribunal decides not to extend time
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)Child Support (Registration and Collection) Act 1988 (Cth)
Cases
Englezos v Secretary, Department of Social Services [2023] FCA 31
REASONS FOR DECISION
Senior Member D. J. Morris
31 January 2024
On 24 November 2021 the Child Support Registrar (‘the Registrar’) made three decisions to refuse the Applicant’s request for an extension of time to object to three decisions made by the Registrar: a decision made on 9 December 2017 to apply a provisional income for LZPS of $49,071 for the 2016-17 financial year; a decision made on 9 March 2019 to apply provisional income for LZPS of $50,076 for the 2017-18 financial year; and a decision made on 6 June 2020 to apply a provisional income for LZPS of $51,151 for the 2019-20 financial year. These will be referred to as the original decisions.
LZPS asked the Tribunal to review the Registrar’s refusal to extend time and, on 14 February 2023, the Social Services and Child Support Division (‘First Review’) refused to grant the extension of time, echoing the refusal decision.
LZPS applied to the General Division of the Tribunal for review of the First Review decision.
HEARING
The application was heard on 16 November 2023. LZPS represented himself and made submissions. Ms Kathryn Lieschke, a seconded lawyer working for Services Australia, represented the Registrar.
LZPS is the father of two minor children, who will be called ‘LM’ and ‘OM.’ The Tribunal formed a preliminary view that the mother of these children had interests that may be affected by the decision under review. Accordingly, the Tribunal’s associate contacted the mother and advised her that she can apply to be joined as a party to the proceedings. The mother, who was assigned the anonym ‘MSPS,’ did apply to be joined. LZPS did not object to her being joined as an Other Party.
On 14 November 2023, the Tribunal made an order under s 30(1A) of the Administrative Appeals Tribunal Act 1975 (‘AAT Act’), being satisfied that MSPS’s interests may be affected, she should be joined to the proceedings. The Tribunal gave leave under s 33A of the AAT Act for MSPS to appear at the hearing as the Other Party, by telephone.
At the hearing, LZPS said he wanted to make some submissions that he wished to keep confidential from MSPS about his personal circumstances. The Tribunal agreed that the Applicant would first make submissions in the presence of the Respondent and MSPS and that the Other Party would then leave proceedings and LZPS would be allowed to make further submissions to the Tribunal, with the Respondent present.
After the hearing, the Tribunal made orders under s 35(4) of the AAT Act restricting the publication of s 37 documents lodged in this matter only to the parties. The Tribunal also gave leave to LZPS to make submissions regarding any unusual circumstances he faced at the time of the original decisions on 24 November 2021, and that those submissions must be given to the Respondent and the Other Party. The Respondent and the Other Party were then given until 30 November 2023 to make any submissions on the material. After receipt of the last submission, the Tribunal reserved its decision.
The Tribunal admitted into evidence the following documents:
(a)‘Scanned evidence of understanding to send letters and decisions in writing by post’ (Exhibit A1);
(b)‘Scanned evidence of Express Post letter received as communication between Services Australia and Applicant’ (Exhibit A2);
(c)Registered Post tracking number (Exhibit A3);
(d)Letter to Applicant dated 2 June 2021 ‘re management of your child support case’ (Exhibit R1);
(e)Letter to Applicant dated 24 November 2021 ‘re extension of time decision refused’ (Exhibit R2);
(f)Letter to Applicant dated 24 November 2021 ‘re extension of time decision refused’ (Exhibit R3);
(g)Screenshot ‘Australia Post Tracking Child Support’ (Exhibit R4);
(h)‘T’ documents submitted under s 37 of AAT Act (subject to confidentiality order) (Exhibit R5); and
(i)Extension of time application to Tribunal dated 18 October 2023 (Exhibit T1).
The Tribunal also took into account the Registrar’s Statement of Facts, Issues and Contentions and written submissions from the Applicant.
BACKGROUND
As mentioned above, the Applicant is the father of two minor children, LM who was born in 2011 and OM who was born in 2014 (TD, p 72).
On 9 December 2017 the Registrar made a decision that LZPS’s adjusted taxable income for the 2016-2017 financial year was $49,071 (being an amount equal to two-thirds of the annual Male Total Average Weekly Earnings (‘MTAWE’) figure), pursuant to s 58 of the Child Support (Assessment) Act 1989 (‘Assessment Act’) in circumstances where a tax assessment had not been issued for the last relevant financial year. This was original decision one.
On 19 February 2019, the Registrar was notified of a PAYG payment summary showing taxable income for LZPS of $3,516 for the 2016-2017 financial year (TD, pp 74 and 77). The same day the Registrar decided to apply the income to the 2016-2017 financial year but only for the period from 19 February 2019 to 19 April 2019 because, pursuant to s 58A of the Assessment Act, the updated income could only be applied from the date of notification.
On 9 March 2019, the Registrar decided that LZPS’s adjusted taxable income for the 2017-2018 financial year was $50,076 (being an amount equal to two-thirds of the annualised MTAWE figure) for the period from 20 April 2019 to 19 July 2020 (TD, p 85). Again, this decision was made pursuant to s 58A of the Assessment Act in a case where a tax assessment had not been issued for the last relevant financial year. This was original decision two.
On 21 November 2019 LZPS provided the Registrar with updated income of $7,187 for the 2017-2018 financial year (TD, pp 96 and 106). The same day the Registrar decided to apply the income to the 2017-2018 financial year but only from 21 November 2019 (the date of notification) to 19 July 2020.
On 6 June 2020, the Registrar decided that LZPS’s adjusted taxable income for the 2019-2020 financial year was $51,151 (being an amount equal to two-thirds of the annualised MTAWE figure) for the period 20 July 2020 to 19 October 2021 (TD, p 108). Again, this decision was made pursuant to s 58A of the Assessment Act in a case where a tax assessment had not been issued for the last relevant financial year. This was original decision three.
On 23 December 2020, the Registrar was notified of a PAYG payment summary which showed the taxable income for LZPS for the 2019-2020 financial year was $16,072 (TD, p 122). The same day the Registrar decided to apply the income to the 2019-2010 financial year but only from 23 December 2020 (the date of notification) to 19 October 2021. On 19 October 2021 LZPS provided an income tax declaration of $16,074 for the 2019-2020 financial year which the Registrar accepted.
PROCEDURAL
Ordinarily, decisions made by Social Services and Child Support Division of this Tribunal at First Review not to extend time in relation to an application are not reviewable at Second Review. That is because such decisions are procedural in nature and a Member of the Tribunal is making a decision applying the provisions of s 29(7) of the AAT Act and exercising his or her discretion as to whether or not it is reasonable in all the circumstances to extend time. They are not decisions under s 43(1) of the AAT Act to affirm, set aside or vary a reviewable decision.
However, s 91 of the Child Support (Registration and Collection) Act 1988 (‘the Collection Act’) disapplies ss 29(7) to (10) of the AAT Act in relation to requests for extension of time for making applications for First Review. The First Review must, under s 92, consider the extension application and within 60 days grant or refuse it. If the First Review refuses the extension application, the person may seek a Second Review by the General Division (see s 96A(a) of the Collection Act).
Before the Tribunal (TD, p 1-2) was a decision dated 14 February 2023 by Senior Member Benk in the Social Services and Child Support Division of the Tribunal to refuse LZPS’s application for an extension of time in relation to the three decisions of 21 November 2021.
Accordingly, what was before the Tribunal was a single question: was the First Review correct to refuse to extend time in relation to LZPS’s application seeking an extension of time?
If the Tribunal finds that the First Review decision to refuse the extension application was incorrect and grants it, by operation of s 92(6) of the Collection Act, the person is taken to have validly made an application for First Review at which the extension application was granted. Therefore, it is useful to keep in mind that, in such a case, the returning of a matter to be considered at First Review is not a ‘remittal’ in the sense used in s 43(1)(c)(ii) of the AAT Act.
Notwithstanding that parts of s 29 of the AAT Act are disapplied in this sort of decision, in particular the provision in s 29(7) which relates to an assessment as to whether it is ‘reasonable in all the circumstances’ to extend time for the making of an application, the general jurisprudence as to whether time should be extended is that which has been developed and refined over a long period by the Courts. The principles in that general jurisprudence are relevant.
The Federal Court of Australia recently restated the principles which govern the Court’s exercise of the discretion as to whether to extend time. In Englezos v Secretary, Department of Social Services [2023] FCA 31 (‘Englezos’), Collier J said at [32]-[33]:
The principles governing the Court’s discretion to grant an extension of time are well settled. In summary, the Court will have regard to:
(1) Whether there is an adequate explanation for the delay on behalf of
the applicant;
(2) Prejudice to be faced by the parties;
(3) Merits of the proposed grounds of appeal.
See AZAFF v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 176 at [35]; GOK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 169 at [23]; Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [20].
It is also well established that, as a general principle, the Court will not exercise its discretion unless it is in the interests of justice to do so; AZAFF at [35], Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [20]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349; MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62].
Her Honour then continued on in her decision to summarise the submissions made by the parties, including a submission that account should be taken that the applicant before her was self-represented. Collier J then said, at [39]:
Without good reason, a litigant in person is not inherently exempt from the rules. The time limits prescribed by the Federal Court Rules and AAT Act are not “mere aspirational guidelines” and the applicant must provide a good reason to explain the delay, particularly when that delay is lengthy: BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400 at [3]; BJT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 870 at [40].
Is there an adequate explanation for the delay?
LZPS objected to the three original decisions on 28 October 2021 (received by the Registrar on 30 October 2021 (TD, pp 211-219)). On 5 November 2021, an objection officer of the Registrar attempted to contact the Applicant by telephone and the file note states that the officer left a voice message (TD, p 286).
On the same date, 5 November 2021, the Registrar wrote three letters to LZPS in relevantly identical terms, with the heading ‘Please contact us about your objection’. The letters each said:
We would like to discuss this with you because your objection was lodged more than 28 days after you received the original decision in writing (i.e. it was lodged late).
If you want to continue with the objection you will need to explain why you lodged your objection outside the 28 day timeframe and ask for an extension of time.
If we do not hear from you by 19 November 2021, we cannot accept your objection…
The letters go on to say that if the Registrar did not hear from the Applicant the original decisions would stay in place and there would be no change to the child support assessment.
LZPS did respond on 13 November 2021. His letter ranges across a number of grievances he has with the agency but the kernel relevant to this proceeding is at paragraphs 23 and 24 where he wrote:
This matter is decision ready. Please replace the provisional (temporary) income for 2015/16 with the income using the ATO issued notice of assessment I provided you with an income of zero from a dad at home caring for the children.
In the event you refuse to apply retrospectively the 2015/16 income, then the matter will be escalated to the tribunal/courts to make a decision as all information was already provided to Child Support on multiple occasions.
The Respondent submitted that it was understood that LZPS’s position in relation to all the assessments was essentially the same as his submission relating to the 2015-2016 financial year income, and this was not disputed by the Applicant at the hearing.
On 24 November 2021, a delegate of the Registrar wrote to LZPS advising of three decisions refusing to extend time (TD, pp 314-325). The delegate concluded that there was no merit to the Applicant’s objections because, in a case where a parent had not lodged a tax return, the Registrar may make a determination on the parent’s adjusted taxable income based on the income information available.
The delegate noted that, in respect of the objections lodged on 30 October 2021, these were, respectively, 482 days, 938 days and 1,393 days outside the 28-day period for lodging an objection. The delegate noted that LZPS said:
This matter is extremely complex, challenging various interpretations of the law. The matter needed to run its course for me to be able to properly educate myself on my rights, understand the various legislation and face the usual child support system that is designed to deter objections, this cannot be done in 28 days.
The delegate noted that the Applicant was sent a letter setting out his objection rights if he disagreed with the decision, but no contact was received from LZPS and, in the absence of contact, that the Applicant had rested on his rights. The delegate further noted that there was a prejudice to MSPS, the mother of the two children, because she was entitled to rely on the decision. Finally, the delegate decided there was a prejudice to the general public where a valid reason for the (long) delay in objecting to the decisions had not been provided, because the efficient and effective operation of government agencies was affected.
The Applicant replied to the Respondent on 25 November 2021 and acknowledged the receipt of letters refusing to extend time (TD, p 326).
In his submissions at the hearing LZPS said he did not have an opportunity to provide contrary evidence to the First Review. He said he was “served electronically, it was messy at the time, and some communications I thought were misleading.”
The Applicant said that he had previously asked the Child Support Agency only to communicate with him by Australia Post and that “I was expecting a letter in my mail box from the CSA. Finally, I received a letter then within 28 days I applied for an EOT.”
In her submissions, the Other Party said she could not comment on the issues relating to the extension of time. MSPS said:
“From my end it has been very difficult. The Applicant has tried to avoid payment for so long. I have to carry the expenses of the two children. I can’t rely on anything consistent. It is nine years since we separated, and I am still not getting assistance. LM is now aged 12 and OM is aged 9.”
In answer to a direct question from the Tribunal, MSPS said that LZPS has the children from Friday to Monday every fortnight and they split holiday periods when they respectively have the children 50/50.
Ms Lieschke submitted that LZPS’s reliance on complexities in the legislation is not an adequate explanation for the delay.
LZPS in reply said he was late:
“because of a mess in my life. We were living together. She was abusive and demanding. I left the relationship. Usually it is the woman who leaves. Two years of hell trying to save the children.”
LZPS said he asked for communications in writing but conceded it was possible he viewed the correspondence from the Child Support Agency,
“I am not going to lie. I was dealing with a lot of issues at the time. It is about what is financially possible for a person to pay. This application is not about avoiding paying child support, it is to let me get back on track. If granted, it will help out all the parties.”
The Tribunal noted that LZPS acknowledged in writing on 25 November 2021 (TD, p 326) the refusal of extension of time and asked him why he had applied so late. He replied,
“I didn’t really understand the pathway. Child Support refused to consider hardship. If family violence is not hardship, living in a garage is not hardship, I don’t know what is.”
Because the Applicant submitted that he had been subjected to domestic violence and this was one reason for delay, the Tribunal gave leave for written submissions by 23 November 2023 and for any response from the Respondent and MSPS by 30 November 2023.
Any prejudice to be faced by the parties
Ms Lieschke said that the Respondent relies on its written submissions. She noted that LZPS was 378 days out of time and was aware of his appeal rights. In respect of prejudice to other parties, she submitted there was no prejudice to the Registrar, but that MSPS would be prejudiced, and there would be a general prejudice to others in the same position.
The merits of the substantive application
The Respondent submitted that ss 58 and 58A of the Assessment Act are relevant to the merits of the original decisions. In particular, s 58 provides that if a parent’s taxable income has not been assessed under the Income Tax Assessment Act 1936 or a relevant earlier year of income then, in short, the Registrar if satisfied that a specified amount or an amount so worked out is a reasonable approximation of the parent’s adjusted taxable income for that year, then the Registrar may determine that amount as the parent’s adjustable taxable income for the year (see s 58(5)(2)).
In LZPS’s case there had been no tax assessment of his income for the 2015-2016, or subsequent relevant financial years. Therefore the Respondent submitted that the Registrar correctly applied ss 58(2A) or (5) of the Assessment Act to determine that his income was two-thirds of MTAWE.
The Respondent pointed out that where the Registrar subsequently becomes aware of information about a person’s taxable income, which was the case in relation to LZPS for the 2016-2017, 2017-2018 and 2019-2020 financial years, the incomes were amended to reflect the new information but as the income was less than the amount used in the assessment, it only took affect from the date LZPS advised Services Australia (see s 58A(2) of the Assessment Act).
The Tribunal pointed out to LZPS that, because of the terms of s 58, the Respondent (or indeed the Tribunal standing in the Registrar’s shoes) cannot give the Applicant the relief he requests, which is to re-calculate his income as ‘zero’.
The Tribunal therefore concludes there is little or no merit in the substantial application.
The Tribunal finds that LZPS was substantially out of time, over a year late, and is satisfied he was aware of his appeal rights. The Tribunal accepts the Respondent’s submissions that there was no prejudice to the Registrar if time were extended, but that MSPS would be prejudiced, because she was entitled to consider that the matter had been settled, and there would be a general prejudice to other members of the public in the same position if time were extended.
The allegation of domestic violence
LZPS provided an audiotape of an argument he had with MSPS when they were living in the same house where she was demanding he mowed the lawn.
MSPS in her written submissions lodged after the hearing in accordance with the Tribunal’s order relevantly said (as written):
The only contact I have had with [LZPS] has been in relation to only children matters. Emails and text messages can be provided if required. The allegations made by [LZPS] that there was family violence from 2016-2023 but no order has been issued or evidence provided to support his allegations.
In relation to the voice recording provided. Upon hearing the recording this was the first time I was aware of a recording taken place. I have had no prior knowledge of this recording. Listening to the recording it’s distorted and the content of the conversation is unclear. [LZPS] alleged that this is myself in the recording this a breach of privacy as the recording was taken without me being informed or my consent.
The Tribunal accepts that the relationship between the Applicant and the Other Party had deteriorated. but this audiotape is evidence of a domestic argument, not one that amounts to satisfying a definition of domestic violence.
Notification of the refusal decisions
The problem for the Applicant is that he asserted that he asked the Child Support Agency only to deal with him by post. That is self-evidently not the case. He actually asked for communications to be in writing, i.e. by either email or post. This is reflected in a letter from Services Australia to LZPS on 2 June 2021 which relevantly states:
I have not tried to contact you by telephone out of respect for your request for contact with us to be in writing only.
Underlining that the Applicant was content to be contacted by email is the positive evidence in his 25 November 2021 in which he writes (with file numbers redacted):
I acknowledge receipt of the following letters:
Extension of Time Decision Refused - $47,504.00
Extension of Time Decision Refused - $50.076.00
Extension of Time Decision Refused - $51,151.00
Extension of Time Decision Refused - $49,071.00
Open exchange of information
The Tribunal is satisfied that LZPS was properly notified of the outcome of his objections and his entitlement to seek review, but that he chose not to act. In this respect, he rested on his rights. The Child Support Agency and MSPS were entitled to believe, in the absence of any indication from the Applicant that he intended to challenge the decisions, that the decisions should stand.
I am further satisfied there is positive evidence that LZPS received notification of the various decisions. His earlier assertion that he required correspondence only to be mailed was rightly withdrawn by him during the hearing, because the evidence is clear that he was responsive to emails, consistent with his request for communications to be in writing (but not necessarily sent by post).
After the hearing leave was given for both the Applicant and the Other Party to lodge written submissions. I observe that a large amount of the contents of the submissions lodged by LZPS and then responded to by MSPS traverse matters relating to the care of the children, disputes before the courts and the historical nature of the break-up of their relationship. While no doubt of great importance to them, these points are not relevant to the Tribunal in considering whether or not to extend time.
In his post-hearing submissions dated 18 October 2023, LZPS relevantly said:
…the letters relevant to the refusal by Service Australia to grant me an extension of time were not ready (and actually lost) until sent by via post mail.
The Tribunal finds this implausible, given the Applicant himself wrote explicitly that he had received the several letters advising of the decisions to refuse to extend time. If he did not read them in detail, then that is his responsibility. If he lost them, but did not follow up for a substantial temporal period, then that is not a valid reason to exercise the discretion to extend time.
I do not find that the ‘complexities of the legislation’ is a sufficient ground for the very long delays in the Applicant taking up his entitlement to seek review, but I accept LZPS’s frank submissions that he was going through a ‘messy’ time in respect to his relationship with MSPS and how it affected the care of their two children. I note, however, that did not prevent him, when he did eventually make contact with the Registrar, making long and articulate submissions, even if large amounts of the contents were not strictly relevant to the matters in dispute.
Having carefully considered all the material before me, the answer to the single question posed earlier: was the First Review correct to refuse to extend time in relation to LZPS’s application seeking an extension time is ‘Yes.’ I find that there is no reason to disturb the First Review decision. I am not satisfied that it is reasonable to extend time for a substantive hearing at First Review, so the refusal to extend time stands.
DECISION
The decision under review, which is the refusal by the Social Security and Child Support Division of the Tribunal under s 92 of the Child Support (Registrationand Collection) Act 1988 to extend time for a First Review, in relation to the decision of the Child Support Registrar not to extend time for consideration of objections to three decisions made on 24 November 2021, is itself affirmed.
I certify that the preceding 63 (sixty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
.....................[SGN]...................................................
Associate
Dated: 31 January 2024
Date of hearing: 16 November 2023 Date final submissions received: 30 November 2023 Applicant: Self-Represented Advocate for the Respondent: Ms Kathryn Lieschke Solicitors for the Respondent: Services Australia Joined Party: Self-Represented
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