Mimaki and Child Support Registrar (Child support)

[2024] AATA 2537

Mimaki and Child Support Registrar (Child support) [2024] AATA 2537 (31 May 2024)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2024/PC027834

APPLICANT:  Mr Mimaki

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                31 May 2024

APPLICATION:

An extension application made on 22 April 2024 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 3 January 2024 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

CHILD SUPPORT – application for extension of time – no medical evidence for the delay – little merit – prejudice to the other parent – 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. [Ms A] and Mr Mimaki are the parents of [Child 1]. [Child 1] is recorded as being in [Ms A’s] 100% care. The case has been registered with Services Australia (Child Support) from 1 May 2008 and collected by Child Support from 5 March 2010.

2. On 14 November 2023 an objections officer disallowed Mr Mimaki’s objection to the decision made by Child Support on 9 October 2023 to refuse to change the administrative assessment of child support because there existed no reason to change the assessment. Mr Mimaki applied for a review of this decision with the Administrative Appeals Tribunal (the Tribunal) on 22 April 2024.

3. 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 (442 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 Mimaki’s application for review.

4. The issue to be considered is whether Mr Mimaki should be granted an extension of time to lodge an application for review of the Registrar’s decision.

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. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. The Tribunal is satisfied that Mr Mimaki 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 Mimaki was notified of the objections officer’s decision electronically on 3 January 2024.

8. Mr Mimaki provided reasons for needing an extension of time, namely, that he “incurred a crippling injury, ruptured Achilles tendon in December 2023. I was unable to respond to CSA due to serious medical issue and under heavy medication”.

9. There was a previous change of assessment made in this matter on 2 July 2022. On 17 September 2022 a delegate of the Registrar determined Reason 8A was established in relation to Mr Mimaki and found that Mr Mimaki’s income and financial resources were not adequately reflected in the administrative assessment of child support. The following departure determination was made:

   ·For the period 1 July 2022 to 31 December 2022, Mr Mimaki’s adjusted taxable income shall be set at $82,000.

   ·For the period 1 January 2023 to 31 December 2023, Mr Mimaki’s adjusted taxable income shall be set at $84,460.

   ·For the period 1 January 2024 to 31 December 2024, Mr Mimaki’s adjusted taxable income shall be set at $86,994.

   ·For the period 1 January 2025 until [Child 1] is no longer an eligible child of the case (currently 4 May 2025), Mr Mimaki’s adjusted taxable income shall be set at $89,603.

10. Mr Mimaki lodged a new change of assessment application with Child Support on 20 June 2023. On 9 October 2023 a delegate of the Registrar determined no reason was established and refused to depart from the administrative assessment in place determined in the previous change of assessment.

11. When considering Mr Mimaki’s reasons for the delay in his application to the Tribunal, Mr Mimaki did not provide any evidence of his injury. It is also evident that Mr Mimaki read the objection decision online on the day he received the decision. Additionally, Mr Mimaki did not lodge an objection to the departure determination made on 2 July 2022 even though his circumstances relating to that decision remained similar to the circumstances he spoke about leading up to the current decision. Accordingly, I am satisfied that Mr Mimaki does not have an acceptable reason for the delay in his application to the Tribunal and he has rested on his rights.

12. Mr Mimaki submitted in his written application to the Tribunal the reasons for wanting a review of the objections officer’s decision as follows:

    The decision is incorrect due to a change in my financial position. I have been made personally bankrupt, this has limited my income to approx. 74k / yr. The CSA have the evidence of my bankruptcy yet kept my assessment $86,994.00/yr based on the assessors assumption and not the evidence provided. Evidence provided by me to the CSA was in the form of payslips, tax returns and access to my personal bank account.

    I was informed by the assessor that they believe the company I work for on apart-time basis, granted me extra income. I explained that the company pays the rent on the property because it is used as plant nursery for the business, I live at this property and rent is deducted from my pay. I drive a car owned by the company, a 2011 [brand 1] and have a mobile phone payed by the company.

    My gross income is $546.00/ week. I work part-time due to health issues that is due to not being allowed by the mother of my daughter to not see my daughter over the past 8 years, despite a court order allowing me 30% care. The mother is illegally claiming 100% which also increases my CSA payments and increasing the debt I owe to the CSA every week.

13. Payslips provided by Mr Mimaki show salary from ordinary hours of full-time work. There are no deductions for rent or for use of a vehicle as stated by Mr Mimaki to the objections officer. Mr Mimaki’s [Bank 1] business transaction account statement for the account number ending in 5974 for the period 7 September 2023 to 3 December 2023 shows deposits of approximately $61,113.06 for this period. If these deposits were annualised the gross annual income from the business account would be approximately $20,371 monthly or $244,252 annually.

14. The Australian Taxation Office 2021/2022 bench marks for a [business 1] earning gross business income of between $200,000 and $500,000 show the ‘Total expenses’ divided by ‘annual turnover’ would be about 74%. The business bank account also shows payments towards [Finance Company 1] which I assume is for the car that Mr Mimaki drives. If business expenses for a [business 1] are about 74% of business income (or equivalent to $180,746), then remaining funds available to the business and therefore, Mr Mimaki would be about $63,506. Accepting this is a financial resource available to Mr Mimaki, grossing up this figure would be equivalent to $80,064. Mr Mimaki’s child support liability would change substantially if his income was set at $80,064 or the amounts set by the delegate.

15. Calculations using an annual income of $80,064 show a child support liability payable by Mr Mimaki on an annual basis of approximately $9,889 with [Ms A’s] provisional income of $0 (nil). When compared with the income set by the delegate for the period 1 January 2024 to 31 December 2024 of $86,994 in which Mr Mimaki incurs a child support liability of approximately $11,185, this is a difference payable by Mr Mimaki of about $25 a week between the delegate’s set income and the income determined by the Tribunal on the information before it. While I am not required to make a substantive decision, I have undertaken this exercise to demonstrate that there is little merit in Mr Mimaki’s application for review as it is unlikely based on the information before it, that a more favourable decision will be made by the Tribunal on review.

16. Mr Mimaki told the objections officer that he is no longer the director of [Business 1] but he remains a signatory on the business bank account. This would indicate to me that Mr Mimaki is more than an employee of the business and is still taking an active role in managing the business. It follows then that Mr Mimaki would have access to the financial resources of the business bank account. It is unlikely that the Tribunal would make a more favourable decision in relation to Mr Mimaki’s income. Accordingly, I find there exists little merit in Mr Mimaki’s application.

17. I am satisfied that [Ms A] will not experience any difficulties in providing information relevant to the review, as Mr Mimaki is in arrears with his child support payments for [Child 1]. Accordingly, the prejudice to [Ms A] that exists relates to the time it took Mr Mimaki to lodge his application for review with the Tribunal.

18. Time frames for initiating legal proceedings do serve a useful public purpose. The principal objects of the Child Support (Assessment) Act 1989 (the Assessment Act) are to ensure that children receive the financial support that their parents are able to provide; and that the periodic amounts payable by parents towards the maintenance of their children are paid on a regular and timely basis (subsection 3(1) of the Assessment Act).

19. To that end 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.

20. 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 much later a different determination was made after an objection to an application was lodged past the 28-day period. A 28-day time limit reduces uncertainty for both parties and the public has a general expectation that unless there is a good reason, time frames should be observed. As I am satisfied that Mr Mimaki does not have an acceptable reason for his delay in his application to the Tribunal then it follows that there exists prejudice to the wider public in allowing an extension of time.

21. The Tribunal in refusing the extension of time balances these considerations about whether it is proper to grant an extension of time. Mr Mimaki lodged his application for review with the Tribunal on 22 April 2024, he was 131 days late in his application to the Tribunal. As I have determined that Mr Mimaki does not have an acceptable reason for the delay in his application to the Tribunal, that there exists little merit and there exists prejudice to [Ms A] and the general public in allowing an extension of time, I have determined it is not proper to grant an extension of time to Mr Mimaki. Accordingly, Mr Mimaki’s extension of time application is refused.