McCouch and Child Support Registrar (Child support)

[2022] AATA 2112

McCouch and Child Support Registrar (Child support) [2022] AATA 2112 (4 May 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/MC023459

APPLICANT:  Mr McCouch

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member K Dordevic

DECISION DATE:  4 May 2022

APPLICATION:

An extension application made on 11 March 2022 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 16 January 2018 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

CHILD SUPPORT – application for extension of time – departure determination - no satisfactory explanation for the lengthy delay – no apparent merit – prejudice to the other parent due to long delay - 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 McCouch to lodge an objection to a decision made by Services Australia ‒ Child Support (the Agency).

2. Mr McCouch and Ms McCouch are the parents of two children. There has been a child support assessment in place since 7 July 2016.

3. On 26 October 2016 a senior case officer varied Mr McCouch’s adjusted taxable income to $59,361 per annum and his annual rate increased by $21,580 per annum for the period 5 September 2016 to 31 December 2018.

4. On 20 December 2017 Mr McCouch objected to that decision and requested an extension of time in which to lodge his application. On 16 January 2018 his application for an extension of time was refused.

5. Mr McCouch lodged an application to this tribunal on 11 March 2022, 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 the papers. The tribunal had regard to the documents supplied by the Agency (folios 1 to 932).

ISSUES

1. The relevant legislation is contained in the Administrative Appeals Tribunal Act 1975 (the AAT Act) and the Child Support (Registration and Collection) Act 1988 (the Act).

2. The issue to be decided by the tribunal is should Mr McCouch be granted an extension of time to lodge a request for review regarding the objections officer’s decision dated 16 January 2018?

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 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. Section 91 of the Act states that, 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 within the allowed time. 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.

3. The tribunal considered the guiding principles for the exercise of the discretion to allow an extension of time as set out in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176. 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 generally applications commenced outside of the prescribed time limit will not be considered.

4. A consideration of other relevant authorities establishes that when considering whether to allow an extension of time the tribunal should consider and balance a range of factors. These factors are a guide and are not exhaustive, but generally include:

   ·     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.

The reasons for the delay and whether Mr McCouch rested on his rights

12.  In his written submissions to the tribunal (at folios 6 to 7) Mr McCouch states that on 10 November 2016 he was verbally advised of the 26 October 2016 decision made by the senior case officer. He then received written notice of this decision on 17 November 2016.  He stated that he was left with the difficult task of lodging an objection within six days, whilst also being “fully engaged” in finalising his “financial separation from my ex-wife due for completion in early December 2016”.

13.  Mr McCouch provided evidence that his solicitors then lodged an objection to that decision with the Agency on 9 December 2016. On 21 December 2016 the Agency wrote to Mr McCouch and advised that an objection can only be lodged by the parent liable to pay child support or receive child support, or a person who has power of attorney. Mr McCouch states that he never received this letter and was only cognisant that his lawyers were unable to lodge an application on his behalf in April 2017 and lodged another application on his behalf, with an authority attached, stating that that he authorised them to act on his behalf in respect to all his child support matters, and in particular lodgement of all documents on his behalf which relate to his objection to the change of assessment application. Mr McCouch stated that his lawyers prepared for him further correspondence for him to forward to the Agency on 19 April 2017 (at folios 35 to 37), noting that the Agency states that it never received that correspondence. 

14.  However, the Agency did receive the objection application and request for an extension of time in which to lodge the same on 20 December 2017. Mr McCouch was advised of the decision to refuse his extension of time application on 22 January 2018. In his written submissions to this tribunal, Mr McCouch confirms that he received notice of the refusal. He went on to state that he was under the impression that he could not lodge an application to this tribunal in regard to the refusal for an extension of time and only became aware of this before lodging his application to this tribunal.

15.  The tribunal finds curious Mr McCouch’s assertion that he was not aware of his rights of appeal to this tribunal given that the notice of decision includes the following notice:

RIGHT OF APPEAL TO THIS DECISION

If you think this decision is wrong, you can ask the Administrative Appeals Tribunal (AAT) to review it. You must do this within 28 days from the date you receive this letter. You can contact the AAT by going to their website aat.gov.au or calling them on 1800 228 333.

16.  It is apparent that at all relevant times Mr McCouch was provided with assistance from his legal representatives when dealing with the Agency. He was provided with written notice of decisions made by the Agency, but did not lodge both his initial objection to the Agency’s decision within the requisite period, nor his application to this tribunal. After taking into account Mr McCouch’s account and considering the Agency’s records, the tribunal concludes that Mr McCouch did rest on his rights and has not provided a reasonable and adequate explanation for the delay in lodging his application to this tribunal.

The merits of Mr McCouch’s objection

17.  For the reasons outlined above, the tribunal is not persuaded that there is any merit in Mr McCouch’s application in respect of his extension of time application to the Agency. He has not provided adequate reasons for his delay, the evidence suggests that there would be significant prejudice to Ms McCouch if he was granted an extension to lodge his objection decision given the passage of time and it would not be proper to grant the extension.

Prejudice to Ms McCouch and the wider public

18.  The tribunal does consider that there would be significant prejudice to Ms McCouch if an extension of time was granted. This is primarily because of the passage of time; it is more than five years since the senior case officer’s determination. 

19.  The tribunal is satisfied that there would be prejudice to the wider public if the extension of time were granted, as it may lead to unnecessary administrative costs and would be contrary to community expectations regarding the finality and certainty of administrative decision-making.

20.  The tribunal finds that it would not be fair to others to grant Mr McCouch an extension of time. This is largely because Mr McCouch has rested on his rights and his application has no apparent merit.

Whether it would be proper to grant an extension of time

21.  The tribunal considers that in the circumstances of this case it would not be proper to grant Mr McCouch an extension of time.

Conclusion

22.  Mr McCouch requested a review out of time. He has not provided an adequate explanation for the delay in his delay in lodging his extension of time application between April and November 2017 and then from February 2018 to March 2021 to this tribunal. There is no apparent merit to his case. Weighing up all the relevant factors, the tribunal is not persuaded that it is fair and equitable to extend the permissible time in which he can lodge his application to this tribunal.  In the circumstances, the tribunal has decided to refuse to grant an extension of time to Mr McCouch.

23.  For completeness, the tribunal is of the view that Mr McCouch’s objection to the change of assessment decision also has little merit.  In his objection application Mr McCouch states that his reasons for seeking a review of the senior case officer’s decision is that he never agreed to pay for the children’s private education. However, there is evidence that the children were being privately educated before the parents separated and the evidence suggests that Mr McCouch contributed to the children’s school fees historically. The tribunal is of the view that this aspect of his application has little prospect of success as the evidence suggests that the parents were in agreement that the children were to be educated privately. Further, prior to Ms McCouch’s departure application Mr McCouch’s child support liability was based on (in part) his 2016 adjusted taxable income of $15,321, made up of a trust distribution of $14,500 and net business income of $821. Mr McCouch objects to his income being varied to $59,361 on the basis that he has declared his actual income is $444.64 per week. Mr McCouch did not provide any financial documentation to support his contentions, including the (then) current financial documents relating to his business [Business 1], where he has declared in the parents’ property proceedings, that its income is derived solely from the [specified] services he provides. [Business 1’s] 2016 tax return indicates that it made a net profit of $39,682. It is of course possible that the father has derived other benefits from the business, such as claiming personal expenses as business expenses. The tribunal is of the view that this decision is reasonable, given the available evidence. In fact, it is possible that an objection officer may be persuaded that his income and financial resources are greater than that determined by the senior case officer. 

DECISION

The decision under review is affirmed.