Magill and Child Support Registrar (Child support) - [2024] ARTA 425

Magill and Child Support Registrar (Child support) [2024] ARTA 425 (16 December 2024)

Applicant: Mr Magill

Respondent: Child Support Registrar

Tribunal Number: 2024/AC028639
Tribunal:General Member P Noonan
Place:Melbourne

Date: 16 December 2024

Application: An extension application made on 1 October 2024 asking the Tribunal to consider the application for an eligible social services decision of the Child Support Registrar on 20 August 2024 despite the period for applying for review having ended.
Decision:The extension application is refused.

CATCHWORDS

CHILD SUPPORT – extension of time to apply to tribunal – departure from the administrative assessment – father’s adjusted taxable income – unable to see doctor during relevant time – no additional information provided and no acceptable explanation for delay – objection may have some merit – prejudice to other party and community – 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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.

Statement of Reasons

BACKGROUND

On 20 August 2024 an objections officer decided to depart from the administrative assessment of child support payable by setting Mr Magill’s adjusted taxable income at $236,475 for the period 1 July 2023 to 30 June 2004 and $175,20 for the period 1 July 2024 to 30 June 2026.
On 1 October 2024 Mr Magill lodged a request for review, including an application for an extension of time with the Administrative Appeals Tribunal (the Tribunal). In his application he cited a doctor’s form but did not attach the form to the application. The application form asked Mr Magill to tell the Tribunal why he did not apply within the time limit and reasons why he should be granted an extension of time. Mr Magill stated: “Please see Doctors letter attached, I was unable to see my doctor due to him being on leave.” He did not provide any other reasons as to why he failed to request review of the decision within 28 days of receipt of the decision and the referenced doctor’s letter was not attached to his application.
On 10 October 2024 a Tribunal case officer contacted Mr Magill and a file note was recorded of this conversation as follows:
“Phone call to the applicant re EOT. Asked if he wishes to rely on only the reasons outlined in the application form. He says would like to provided more and better reasons, and actually submit the supporting dr letter referred to in the app. I advised I would send out the EOT form so that he can have the opportunity to provide further reasons, and that he would have 14 days to provide those back.”
From 14 October 2024, the Administrative Appeals Tribunal (ART) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the ART that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the ART. This decision and statement of reasons is made by the Tribunal.
The issue to be considered is whether Mr Magill should be granted an extension of time to lodge an application for review of the objection decision.
CONSIDERATION
The law relating to a person’s right to seek review of a reviewable decision is contained in section 18 of the Administrative Review Tribunal Act 2024 (the ART Act). Subsection 18(3) of the ART Act requires that a person must lodge a review request with this Tribunal within 28 days of the decision having been made.
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 Child Support (Registration and Collection) Act 1988 (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, grant or refuse that application and advise the person of the decision in writing.
In this case, Mr Magill was sent a notification on 20 August 2024 advising him of the objection decision. Mr Magill lodged an application for review with the Tribunal on 1 October 2024. As this request for a review of the decision was not lodged within 28 days of the decision having been made, an application for an extension of time must now be considered.
The High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 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, the Tribunal has considered the 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 the time limit. The Federal Court identified factors to take into account when deciding whether to grant an extension of time.
These principles have more recently been restated in the decision of her honour Collier J in Englezos v Secretary, Department of Social Services [2023] FCA 31. These authorities clearly set out the well settled considerations when considering whether to exercise the discretion to allow an extension of time and the factors a decision-maker should consider and balance, which the Tribunal will now consider.
The Tribunal is satisfied that Magill was advised of his right to seek review with the Tribunal in accordance with the requirements for notification of the decision in respect to the objection, as set out at subsection 87(3) of the Act. The decision also
included information as to further rights of review and the 28-day time limit.
The Tribunal finds that Mr Magill was properly advised of his rights of review and that he has not provided an acceptable explanation for the delay, given he was aware of his review rights and was advised of these rights to seek review with the Tribunal and was also advised by the Tribunal that he must provide an explanation for his delay in lodging an appeal. Mr Magill has not provided an explanation for the delay.
Mr Magill has provided a submission regarding the merits of his request
for an extension of time to apply for review of the decision. He stated that he accepts the objections officer’s assessment of his income for the financial year ending 30 June 2023 however his 2023-2024 taxable income is considerably lower than the departure assessment. The Tribunal has not conducted a substantive review of the decision. The Tribunal considers, on the material before it, that the application may have some merit, however it qualifies this by noting that the objections officer took into account the self-employed status of Mr Magill. In this regard the Tribunal notes that it is a well-established principle that the taxable income of a person who is self-employed may not be an accurate reflection of their earning capacity and financial resources for child support purposes (DJM and JLM [1998] FamCA 97; Scott and Scott (1994) FLC 92-457; Carey and Carey (1994) FLC 92-489).
The Tribunal also notes that if additional information is available, Mr Magill could lodge a further application with the Registrar for a departure determination and such an application could be considered retrospectively under the legislation.
Overall, while the application may have some merit as an arguable case, the Tribunal finds that it would be unfair in the circumstances to extend the time to lodge a request for review, particularly in the absence of an acceptable explanation for the delay.
The Tribunal also finds that there would be some prejudice to the other party as they have a right to rely on a decision made after a certain amount of time has passed.
The Tribunal also finds that there is some prejudice to the community. In so finding it has weighed the interest that all citizens have in effective public administration. This reflects that generally prospective applicants must adhere to statutory time limits in seeking review of administrative decisions.
Given the totality of the above considerations the Tribunal is not satisfied that it is reasonable to grant the extension of time requested in this case.

DECISION

The extension application is refused.

Date of hearing:	16 December 2024 (on the papers)
Representative for the Applicant:	None