Marner and Child Support Registrar (Child support)

[2023] AATA 233

Marner and Child Support Registrar (Child support) [2023] AATA 233 (5 January 2023)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2022/SC025045

APPLICANT:  Mr Marner

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                5 January 2023

APPLICATION:

An extension application made on 16 November 2022 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 26 September 2022 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 - no satisfactory explanation for the delay - some merit – prejudice to the public – 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. On 10 May 2022 Services Australia (Child Support) made the decision to change the administrative assessment of child support, known as a change of assessment or CoA. Mr Marner did not object to this decision with Child Support until 3 September 2022 when he also had to lodge an extension of time application. Child Support refused to grant Mr Marner an extension of time for his objection.

2. On 16 November 2022 Mr Marner lodged an application with the Administrative Appeals Tribunal (AAT) to review the refusal of the extension of time by Child Support. Mr Marner lodged this application to the AAT more than 28 days after the decision by Child Support. This means an extension of time application also needs to be either granted or refused.

3. 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, and grant or refuse that application in writing.

4. The issue to be considered is whether Mr Marner should be granted an extension of time to lodge an application for review with the AAT for a review of the Registrar’s decision to refuse to grant Mr Marner an extension of time.

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. 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.

3. 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 six factors to take into account when deciding whether to grant an extension of time.

4. 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.

5. The AAT 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.

1. The tribunal is satisfied that Mr Marner was advised of his right to seek review with the tribunal in accordance with subsection 87(3) of the Act.

2. Mr Marner provided reasons for the extension of time application. He writes:

   Verbal decision made by Case Manager named [Mr A]. No hardcopy or soft copy received for confirmation.

   Child Support Services have received information from my ex [Ms B] which is incorrect. She does not have care of [my son]. On 19 September 2022. I spoke with a CSS lady in the morning and again in the afternoon, I spoke to a case manager named [Mr A]. He said he already made a decision before I even the opportunity to respond with more information and submit evidence.

   He was not helpful, was rude and seemed to on a personal vendetta, he did not sent me anything regarding his objection and belittled me and was very patronising. He decided on a whim to make a decision based on false coercive information and he seemed quite happy telling me he was going to take my tax return (garnished). This is itself shows a great deal of inappropriate and unprofessional behaviour.

   The CSS case Manager [Mr A] did not inform me I could submit a review with the AAT. It wasn’t until I did my own research into how I can seek legal help and information, and then I was informed about the AAT process.

3. Mr Marner was notified by post on 26 September 2022 that Child Support refused to grant him an extension of time, he is deemed to have received the notice of the decision on 18 October 2022. Mr Marner’s application for an extension of time is 29 days late.

4. The decision maker determined that Mr Marner did not participate in the review fully and states, “in my view it is only reasonable for me to assume that he is willing to accept a substantial increase. Were this not the case, then it is for Mr Marner to explain his situation. Having said this, if Mr Marner decides he would now like to participate in this process, he is more than welcome to lodge a fresh change of assessment application for, and with his application provide evidence and documentation to demonstrate his income”.

5. Mr Marner did not lodge a formal objection to the change of assessment decision but on 16 June 2022 he did upload information about his circumstances disputing some of the facts about the change of assessment decision, including that he was not the owner of [Business]. This information should have been treated as an objection by Child Support. However, Mr Marner still did not lodge his objection within 28 days of the original decision of Child Support to depart from the administrative assessment of child support.

6. The tribunal does not accept Mr Marner has an acceptable reason for the delay in his application to the tribunal as he would have been aware of the time limits which apply from Child Support’s refusal to grant an extension of time. While the tribunal accepts there may be some merit to Mr Marner’s application for review, the existence of any merit does not ameliorate the delay in Mr Marner seeking a review without an acceptable reason.

7. The tribunal also considered that extending the period in the present circumstances would prejudice community expectations in relation to the finality and certainty of administrative decision making. Mr Marner sought review by the AAT on 16 November 2022 to the decision of Child Support to refuse to grant an extension of time on 26 September 2022, this is a delay of 7 days outside of the 28-day period when considering the date Mr Marner is deemed to have received the notice of the decision via the post (deemed to be on 18 October 2022). It is the tribunal’s view that the delay in seeking review combined with the application to the tribunal for review of the refusal to grant an extension of time outside the 28-day time limit, would create prejudice to the wider public if the application were granted in this matter.

8. The tribunal is not satisfied that it would be fair and equitable in the circumstances to extend the time to lodge a request for review, in the absence of an acceptable explanation for the delay.

9. Mr Marner requested a review out of time. He has not provided an adequate explanation for the delay. The tribunal is of the view that while there may be merit in reviewing the decision it is not fair and equitable to do so. In the circumstances, the tribunal has decided to refuse to grant an extension of time to Mr Marner. Mr Marner has the option to apply for a new change of assessment with Child Support based on his changed circumstances which have further rights of review with Child Support and then the AAT.

10. The extension of time application is refused.