NPLR and Child Support Registrar (Child support second review) - [2023] AATA 1521

NPLR and Child Support Registrar (Child support second review) [2023] AATA 1521 (2 June 2023)
Division:GENERAL DIVISION
File Number(s): 2022/8074
Re:NPLR
APPLICANT

AndChild Support Registrar
RESPONDENT

AndWXRT
OTHER PARTY

DECISION
Tribunal:Deputy President J Sosso
Date:2 June 2023
Place:Brisbane

The decision of the Social Services & Child Support Division of 14 September 2022, refusing an extension of time for the Applicant to seek a review of the decision of the Child Support Registrar of 3 June 2022, is set aside and substituted with a decision to grant the Applicant an extension of time for the lodging of her review application of 28 September 2022 in order that it may be heard by the Social Services & Child Support Division.
.....................[SGD].....................
Deputy President J Sosso
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: Application for extension of time – AAT second review – moderate delay – explanation for delay – prospects of success – no prejudice to Registrar – extension of time granted
LEGISLATION
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
CASES
Brown v Federal Commissioner of Taxation [1999] FCA 563
Children’s Activities Time Society Association Inc. and Collector of Customs (WA) (1986) 9 ALN N111
Comcare v A’Hearn (1993) 45 FCR 441
Commissioner of Taxation v Brown (1999) 99 ATC 4852
Hunter Valley Developments Pty Ltd & Ors v Minister for Home Affairs and Environment (1984) 58 ALR 305
Ignacio and Ignacio [2016] FamCA 50
Minister for Health and Aged Care v Pharmacia & Upjohn Pty Ltd [2001] FCA 75
NLLQ and Child Support Registrar [2023] AATA 867
Tadela and Child Support Registrar [2017] AATA 957
Windshuttle v Federal Commissioner of Taxation (1993) 46 FCR 235
REASONS FOR DECISION
Deputy President J Sosso
2 June 2023

Ms NPLR (“the Applicant”) seeks a review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (“AAT1”) made on

14 September 2022 refusing to grant the Applicant an extension of time to seek a review of an objection decision of the Child Support Registrar (“the Registrar”) of 3 June 2022.
The Registrar partly allowed an objection made by Mr WXRT (“the Other Party”) to a decision of 14 January 2022 being a change of assessment determination made under Part 6A of the Child Support (Assessment) Act 1989 (Cth) (“the Act”).
The sole issue before the Tribunal is whether it is reasonable in the circumstances to grant the Applicant an extension of time for her to make an application to AAT1 to review the objection decision of 3 June 2022.
This is a somewhat unusual matter. In Directions made on 7 February 2023 by Conference Registrar Barker, it was noted that the Other Party indicated that he did not wish to participate in any hearing or receive any further correspondence from the Tribunal, other than a copy of the decision made by the Tribunal.
Further, in the Registrar’s Statement of Facts & Contentions of 2 May 2023 (Exhibit 2), it was stated that the Registrar takes a neutral position on this application and considers her role is to record the evidence and set out the relevant law and policy to assist the Tribunal to make the correct or preferable decision – Exhibit 2 para 4.
In short, the review application before the Tribunal is not contested by any of the parties to these proceedings.
Nonetheless, the Registrar through her legal representative, Mr Samuel Harvey, has greatly assisted the Tribunal both by the information provided in Exhibit 2 as well as Mr Harvey’s participation in the Hearing convened on 17 May 2023. The Tribunal places on record its appreciation for the assistance provided by the Registrar and Mr Harvey.
THE FACTS
The uncontested facts as set out in Exhibit 2, are outlined below.
The Applicant and the Other Party are parents of two children, the first born in May 2007 and the second in May 2009.
A child support assessment has been registered with the Registrar since 14 July 2021 – Exhibit 1 T56 p. 606.
On 23 September 2021, the Applicant lodged an application for a change of assessment requesting an increase of the annual rate of child support – Exhibit 1 T5 pp. 29 – 114.
Two reasons were advanced – Exhibit 1 T5 p. 29:
(a)Reason 3 – there are extra costs in caring for, educating or training the child(ren) in the way both parents intended; and
(b)Reason 8A – the assessment does not correctly reflect one or both parent’s income, property and/or financial resources.
The Applicant provided detailed reasons in support of her application – Exhibit 1 T5

pp. 38 – 40.
On 14 January 2022, the Registrar determined to change the assessment (the change of assessment decision) as follows – Exhibit 1 T22 p. 197:
(a)for the period 23 September 2021 to 30 November 2022 the adjustable taxable income of the Applicant was set at $182,780.00; and
(b)for the same period, the adjustable taxable income of the Other Party was set at $154,960.00.
The effect of the change of assessment decision was as follows:
(a)for the period 1 January 2022 to 31 December 2022, the annual rate payable by the Other Party would be increased by $17,647.00; and
(b)for the period 1 January 2023 to 31 December 2023, the annual rate payable by the Other Party would be increased by $18,529.00; and
(c)the Other Party was liable to pay arrears of approximately $4,320.00 and his monthly ongoing liability would be increased by a $1,357.00.
On 1 February 2022, the Other Party objected to the change of assessment decision – Exhibit 1 T24 pp. 218 – 223. The reasons advance by the Other Party were as follows – Exhibit 1 T24 p. 220:
“[NPLR] has stated that I am not paying for the property in Buderim for which she resides or my rental property. I am paying for both. I am currently in financial difficulty and am in arrears 1618.00 and the bank is sending messages asking for the money. I have paid the amount on the rental property every week, however I do not receive any income from the property.
Reason 8A in the assessment is all false.
Reason 3. We agreed to have the children in private school when the cost of living was divided equally. At that time I paid 400/week in accommodation. I now pay for my rental property and half the property the children reside in. All attempts to sell the property have been refused.”
Further, on 7 April 2022, the Other Party lodged a change of assessment application – Exhibit 1 T44 pp. 441 – 460. Three reasons were advanced – Exhibit 1 T44 p. 442:
(a)Reason 5 – I have provided money, goods or property for the benefit of the child(ren); and
(b)Reason 8B – The assessment does not correctly reflect one or both parent’s earning capacity; and
(c)Reason 9 – I have a duty to support another person.
In support of his application, the Other Party stated that he was a veterinarian, but was unable to work or use his hands due to an accident – Exhibit 1 T44 p. 443:
“I am currently on leave without pay indefinitely after breaking my left arm and tearing ligaments in my right thumb. I have no income and unable to work”.
On 11 May 2022, a file note records that the objections officer discussed the Other Party’s change of assessment and agreed to consider the matters raised as part of the objection decision – Exhibit 1 T45 p. 461.
On 3 June 2022, the objections officer, on behalf of the Registrar, partly allowed the objection and set aside the change of assessment decision – Exhibit 1 T49 pp. 488 – 519. The objections officer determined as follows – Exhibit 1 T49 p. 490:
(a)for the period from 23 September 2021 to 24 February 2022, the adjustable taxable income for the Other Party was to be set at $189,000.00;
(b)for the period from 25 February 2022 to 30 September 2022, the adjustable taxable income for the Other Party was to be set at $59,000.00;
(c)for the period 25 February 2022 to 30 September 2022, the annual rate payable by the Applicant was to be set at $0.00;
(d)for the period 23 September 2021 to 24 February 2022, the annual rate payable by the Other Party was increased by $17,963.00,
(e)for the period 1 October 2022 to 31 December 2022, the annual rate payable by the Other Party was increased by $17,963.00; and
(f)for the period 1 January 2023 to 31 December 2023 the annual rate payable by the Other Party was increased by $18,502.00.
The impact of these changes was stated to be as follows:
(a)the Other Party’s annual rate for the period 25 February 2022 to 30 September 2022 was $0.00;
(b)the Other Party’s annual rate from 1 October 2022 was $21,268.00; and
(c)the arrears owed by the Other Party was reduced by $5,009.26 from $8,861.85 to $3,852.59.
In reaching this decision the objections officer referred to the following submissions of the Other Party with respect to Reason 8A – Exhibit 1 T49 p. 493:
-“He was working full-time as a vet but broke his hand and has been unable to earn that level of income for some time;
-He received some salary protection insurance early in 2022 when it occurred, ($15,825, one off) but is currently on leave without pay from that role whilst he recuperates;
-He works in a part-time teaching role at a university in addition to his regular income;
-He is paid approximately $1,350 per fortnight net for the teaching work;
-He is unsure when he will return to work as a vet, as his hands are vital to performing that role.”
The objection decision was sent to both the Applicant and the Other Party by electronic communication on 3 June 2022. The cover letters contained the following information – Exhibit 1 T49 pp. 488 – 489:
“If you do not agree with 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…”
[Emphasis in original]
On 1 August 2022, the Applicant lodged an Extension of Time Application with the Tribunal requesting an extension of time to 30 August 2022 to make an application for further review – Exhibit 1 T54 pp. 580 – 582.
Subsequently, on 9 August 2022, the Applicant applied to AAT1 for a review of the objection decision – Exhibit 1 T53 pp. 570 – 579. The Applicant gave the following reasons for seeking a review of the objection decision – Exhibit 1 T53 p. 572:
-“[the Other Party] returned to work as of early July 2020 and should start to contribute – he has not updated CSA with this new information.
-[the Other Party] was not off work entirely due to an injury – he broke his wrist in January, but was then home for many months studying for his specialist surgery exams, as evidenced by him returning to work the week after exams in early July.
-[the Other Party] was not made to produce a medical certificate from his orthopaedic surgeon relating to his capacity. The certificate he provided was from a GP who stated he was ‘unfit for the foreseeable future’. Being a GP myself, I am well aware that a GP would refer to the treating surgeon for comment on a patients capacity after surgery. The fact that his income protection ceased paying him is a very good indication that his injury had resolved as they would certainly not base their payments on a generalised comment from a GP, they would have asked the surgeon to clarify his capacity for work, and hence terminated his claim once the surgeon gave the all clear. The CSA gave him leeway until October 2022 due to this certificate, but he will have been working for three months by then. He has not updated CSA on his ability to work. He should at least be paying school fees again from July 2022.
-[the Other Party] did not provide the CSA with his actual true earnings. Please see the attached payslip which shows the 2021/2022 financial year. From the period July 2021 until January 2022 when he ceased work after he broke his wrist, he earnt $119,000 in that 6 months alone. In the CSA decision letter, they state he was paid $15,000 from his income protection policy and another $55,000 for lecturing – making a total for the 2021/2022 financial year of $189,000. I earnt $185,000-$195,000 in the same financial year. I find it exceedingly inequitable that I pay all the children’s expenses such as medical, dental, sports, music, uniforms as well as $35,000 in school fees even though we earnt the same in that financial year????
-Our daughter also has several significant medical conditions and is under specialist care. The CSA agreed that [the daughter] does in fact have extra medical expenses (which I am covering solely), however they stated that sin[c]e he isn’t working, he would be unable to contribute? This simply isn’t true. He is working as of July 2022 and even when he chose not to work for 6 months or so – he still earnt the same wage as me for the financial year…”
On 14 September 2022 Senior Member Benk refused the extension of time application – Exhibit 1 T2 p. 15. Senior Member Benk made the following findings:
·“there is no cogent reason for the delay as the decision was served electronically;
·there is prejudice to the other parent who is reasonably entitled to expect the decision is final after the 28 day review period has expired;
·there is prejudice to the general public due to unnecessary administration costs which would not be afforded to other individuals in similar circumstances especially where the timeframe for review was clearly articulated in the decision statement/covering letter forwarded to [the Applicant] by the Child Support Agency;
·the merits of the case are arguable;
·redress regarding income particulars may be sought via other administrative means within the Child Support Agency.”
On 28 September 2022, the Applicant lodged an application for review of the AAT1 decision – Exhibit 1 T1 pp. 1 – 4.
LEGAL OVERVIEW
Section 89 of the Child Support (Registration and Collection) Act 1988 (Cth) (“the R&C Act”) allows for certain decisions of the Registrar to be subject to review by AAT1. Generally, an application for review must be lodged within 28 days of an applicant receiving notice of the decision.
Section 91 of the R&C Act, however, provides that if the period for applying for AAT1 review has ended, a person may make an extension of time application.
Section 92 of the R&C Act provides that AAT1 must consider the extension of time application and, generally, within 60 days, give reasons for granting or refusing to grant the extension of time application.
Finally, s 96A of the R&C Act provides that an application can be made to the General Division of the Tribunal if a decision has been made under s 92 to refuse an extension of time application.
The factors, generally, to be taken into account when considering an extension of time application were helpfully set out in the judgment of Wilcox J in Hunter Valley Developments Pty Ltd & Ors v Minister for Home Affairs and Environment (1984) 58 ALR 305 at 310 – 311. Although his Honour was dealing with the Administrative Decisions (Judicial Review) Act 1977 (Cth), the factors he outlined have been accepted in many cases as having applicability to the operations of the Tribunal. His Honour made the following observations:
(a)“Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the Court will not grant the application unless positively satisfied that it is proper so to do. The "prescribed period" of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at p 550). Indeed it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at p 416). It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an "acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time (Duff v Freijah (1982) 43 ALR 479 at p 485; Chapman v Reilly, Neaves J, 9 December 1983, not reported, at p 7).
(b)Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision maker aware that he contests the finality of the decision (who has not "rested on his rights": per Fisher J in Doyle v Chief of Staff (1982) 42 ALR 283 at p 287) and a case where the decision maker was allowed to believe that the matter was finally concluded. Compare Doyle, Chapman, Ralkon and Douglas v Allen (Morling J, 3 April 1984, not reported) at p 18 with Lucic at pp 414-415 and Hickey v Australian Telecommunications Commission (1983) 48 ALR 517 at p 519. The reasons for this distinction are not only the "need for finality in disputes" (see Lucic at p 410) but also the "fading from memory" problem referred to in Wedesweiller v Cole (1983) 47 ALR 528.
(c)Any prejudice to the respondent, including any prejudice in defending the proceedings occasioned by the delay, is a material factor militating against the grant of an extension: see Doyle at p 287, Duff at pp 484-485, Hickey at pp 525-527 and Wedesweiller at pp 533-534.
(d)However, the mere absence of prejudice is not enough to justify the grant of an extension: Douglas at p 18, Lucic at p 416, Hickey at p 523. In this context, public considerations often intrude (Lucic, Hickey). A delay which may result, if the application is successful, in the unsettling of other people (Ralkon p 550, Becerra pp 12-13) or of established practices (Douglas p 19) is likely to prove fatal to the application.
(e)The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted: Lucic p 417, Chapman p 6.
(f)Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the Court's discretion: Wedesweiller at pp 534-535.”
The Registrar drew the Tribunal’s attention to the recent determination of Senior Member O’Donovan in NLLQ and Child Support Registrar [2023] AATA 867 (“NLLQ”). Senior Member O’Donovan pointed out that the discretion vested in the Tribunal is “not fleshed out in any way” but noted that an applicant is required to explain the reason for the delay in the application. It was observed that “this suggests the reasons for delay must be considered when deciding whether to grant the extension. Beyond that, the discretion is at large…”
at [3].
Senior Member O’Donovan also accepted the applicability of the factors outlined by Wilcox J above, but observed that it is important to consider the statutory context in which reviews of AAT1 child support extension of time decisions are undertaken. The following observations were made (at [3] – [4], [6]):
3“…In particular, it is worth noting that delay in resolution of child support issues can, at least in terms of practical enforcement, have an impact on the timing of payments for the support of a child. The expenses which must be met by the other parent are not delayed, but the payment of child support can be.
4In this particular statutory context, the reasons for delay and the effect on the orderly payment of child support should be scrutinised very closely. It should also be noted that a statutory context where multiple opportunities are given to address the merits of a decision is very distant from a first instance application to a court on a question of the lawfulness of conduct
…
6In my assessment, extensions of time within a system which provides for multiple tiers of merits review renders relevant the degree to which the applicant has engaged appropriately with earlier attempts to obtain a clear factual picture to enable the making of the correct or preferable decision – in this case, the correct amount of child support. Failure to provide important information in a timely way to assist earlier decisions in the review hierarchy is an important consideration weighing against an extension of time in a merits review context that has no analogue in the judicial review context.”

It is both appropriate and necessary to consider each extension of time application contextually. As Senior Member O’Donovan correctly points out, particular considerations arise in the context of child support matters. Granting or refusing an extension of time application impacts not just on the parties before the Tribunal, but vulnerable third parties, namely the child or children the subject of the child support payments. It was also pointed out by Senior Member O’Donovan, that both the first and second tier Tribunal reviews form part of an administrative continuum, and it often occurs that more information is provided at each higher level of review. A decision based on more limited information may well be not appropriate with the provision of greater information. As more light is shone on the circumstances of the parties in child support matters, decision-makers at each higher level of the administrative continuum may well reach a different conclusion. It is important to note that at the end of the day the Tribunal must be, to quote Hill J in Brown v Federal Commissioner of Taxation [1999] FCA 563 (at [59]), “guided by the justice of the case.” His Honour made the following pertinent observations (at [59]):
59
“What is required is the balancing of the delay; the explanation for it; the circumstances which gave rise to it and such prejudice if any as may be shown to exist to the Commissioner against the prejudice which may arise to a taxpayer who has by reason of the failure to object in time lost the right to a review of the assessment. In this balancing process the Commissioner or the Tribunal on a review will be guided by what the justice of the case requires. The balancing process should be approached on the basis that while Parliament has stipulated a time in which objections are required to be lodged it has entrusted to the Commissioner a power to extend that time in appropriate circumstances. The decision maker should not lose sight of the fact that

s 14ZW is an ameliorating provision designed to avoid injustice.”
Although his Honour was referring to a different legislative regime, the need for a decision-maker in an extension of time application to keep in mind overall principles of fairness is of equal applicability to this matter. The Parliament has granted to the Tribunal an unfettered discretion whether to grant an extension of time. The factors outlined by Wilcox J have no statutory foundation, but serve merely as a helpful guide. The Tribunal must give attention to the statutory context and to the implications of granting or refusing an application to the parties as well as other persons affected and take into account the broader policy implications. However, the weighing exercise inherent in making an extension of time determination is carried out with overarching principles of justice and fairness being the ultimate guide for a decision-maker.
THE HEARING
A Hearing was convened in Brisbane on 17 May 2023.
The Applicant appeared in person and was self-represented. Mr S Harvey also appeared in person and represented the Registrar. The Other Party did not appear nor participate in the proceedings.
No witnesses were called to give evidence.
CONSIDERATION
Introduction
The Tribunal is required to consider all relevant factors and weigh each one when determining whether or not to grant an extension of time.
Although, as previously noted, the factors outlined by Wilcox J have no statutory basis, they nonetheless provide a useful yardstick when making a determination.
Length of delay
In this matter the delay was 38 days.
In NLLQ the delay was 54 days, and Senior Member O’Donovan observed that in the context of child support matters this was “a significant delay” – at [54].
The delay in this matter is considerably less than in NLLQ.
The shorter the delay the greater the likelihood that no prejudice, or no significant prejudice, can be shown to have been visited on any other party. Likewise, the shorter the delay the more likely it is that an applicant can demonstrate that they have not wilfully or negligently “sat” on their rights.
It is also the case, as Senior Member O’Donovan explained in NLLQ, that in the context of child support matters delays can have deleterious consequences for third parties, namely the child or children the subject of the child support payments.
The delay in this matter is of moderate length, and, as explained below, there was a plausible excuse provided for the delay. Of more significance, however, it is not contested that the delay has not resulted in prejudice to the Registrar – Exhibit 2 para 56.
Awareness of appeal rights and explanation for the delay
As set out above, the notice of the objection decision sent to the Applicant clearly stated that she had 28 days to seek a review of the decision by the Tribunal – Exhibit 1 T49 p. 488.
An applicant for an extension of time is not required to give an explanation for the delay, and the provision of an explanation is not a prerequisite to the favourable exercise of the discretion to grant an extension. Whilst an explanation is not a condition precedent to granting an extension, nonetheless such an explanation is a relevant matter for the Tribunal to take into account – Comcare v A’Hearn (1993) 45 FCR 441.
In this matter, the Applicant has given an explanation for the delay. She acknowledges that the Registrar did send her a notice and that the notice clearly set out the 28 day time period. However, she claims she did not become aware of the notice for some time after it was sent. In short, she claims for a considerable period she was ignorant of the objection decision and her right to seek a review in the Tribunal.
The Applicant provided the following explanation of her delay when seeking an extension of time in the General Division of the Tribunal – Exhibit 2 Attachment B pp. 6 – 7:
“…I was notified from CSA via electronic notification (which I originally did not see as I was unaware I was receiving electronic letters instead of letters in the post). I rang CSA to follow up my case as I had not heard anything regarding the decision, and at the time they explained I had elected to switch to electronic notification. I promptly checked my online messages and responded to the letter/applied to the AAT, as the decision made by the CSA was based on false information and significantly financially impacted and disadvantaged me…
I accept I did not respond to the decision letter within 28 days. I accept that this was my fault as I did not see the letter. However even if I did see the letter online within 28 days I would have responded after that anyway as the information regarding [the Other Party] working during that period and [the Other Party] receiving regular income protection payments during that time, only became available after the 28 day response time. I would therefore greatly appreciate an extension of time being granted to allow a fair decision to be made based on the correct wage information…”
The Applicant’s account of her ignorance of the objection decision before contacting the Child Support Agency (“the Agency”) is consistent with a file note made by an Agency employee on 27 July 2022 – Exhibit 2 Attachment C pp. 8 – 9. The file note contains the following account of an incoming telephone call from the Applicant at 17:13 on 27 July 2022:
“The reason for the [the Applicant’s] call:
[The Applicant] advised that she has not received any of part 6a obj outcomes
I advised decision had been made
I advised that letters have been sent online to mygov inbox
I advised I can resend letters
[The Applicant] confirmed she wanted the letter resent…”
It will be noted that the Applicant also submitted that information came to her attention after the expiry of the appeal period, namely income received by the Other Party. In her application for review, the Applicant provided a Commonwealth Bank Statement of the Other Party’s Account for the period 1 February 2022 to 31 July 2022. This information is dealt with below in the prospects of success factor.
It has been accepted that when an applicant has received incorrect or misleading information on his or her appeal rights, there is, prima facie, a strong case for granting an extension of time – Forsyth and Federal Privacy Commissioner [2003] AATA 916. Likewise, where the failure to lodge an application has been due to the actions of an applicant’s legal advisor, that legal advisor’s failure should usually not prejudice an applicant’s review rights – Comcare v A’Hearn (1993) 45 FCR 441.
In this matter, the failure to lodge a review application within time was due, in part, to the Applicant’s ignorance of the objection decision. The ignorance of a reviewable decision is not, of itself, necessarily a ground for granting an extension of time. Clearly, if that ignorance was born of a failure on the part of an applicant to make due enquiries or the failure to read a notice that had been duly delivered and when an applicant was aware of its existence, then the ignorance would not be a sound basis for granting an extension of time.
However, if an applicant’s ignorance of a reviewable decision, and thus a consequent reason for not making an application for review, is explicable and due to no fault of an applicant, then a decision-maker should take this into account when weighing the factors. Ignorance of appeal rights has long been held to be an appropriate matter to be taken into account – Children’s Activities Time Society Association Inc. and Collector of Customs (WA) (1986) 9 ALN N111.
The Tribunal is satisfied that the Applicant was not aware of the objection decision until after the expiration of the appeal period, and that this ignorance was due to an understandable misapprehension about the mode of delivery of communications from the Agency. Whilst not of itself providing grounds for granting an extension of time, this is a factor that weighs in favour of the Applicant.
Prospects of success
One important consideration when determining whether to grant or refuse an extension of time application, is the apparent strength of an applicant’s case. In some instances, but for the apparent strength of an applicant’s case, and therefore the prospects of success, an extension of time would not be granted – Minister for Health and Aged Care v Pharmacia & Upjohn Pty Ltd [2001] FCA 75.
However, when determining extension of time applications, it is impermissible for the Tribunal to undertake a merits review of an applicant’s case, or to permit or engage in cross-examination of an applicant or their witnesses in order to test the veracity of their evidence – Commissioner of Taxation v Brown (1999) 99 ATC 4852.
The Registrar, in this matter, notes that, prima facie, the Applicant’s case does have prospects for success – Exhibit 2 para 46. In making this concession, the Registrar referred to the objection decision, and, in particular, the fact that the objections officer’s findings were partly based on a letter from AIA Australia provided by the Other Party detailing a payment of $15,825.00 for the period 10 January 2022 to 24 February 2022. The letter also stated that the Other Party would have provided further information before the insurer could assess his ongoing benefits. The objections officer seemingly concluded that the Other Party would not be receiving further income protection payments – Exhibit 1 T49 p. 494:
“Whilst [the Other Party’s] usual employment ceased on 10 January 2022, the evidence showed he was effectively paid his usual salary via insurance until

24 February 2022.”
The Applicant has provided a Commonwealth Bank Statement for the Other Party’s account for the period 1 February 2022 to 31 July 2022 – Exhibit 1 T1 p. 8 – 14. That Statement seemingly indicates that the Other Party continued to receive income protection insurance payments after 24 February 2022. The Applicant contends that the Other Party received $42,828.06 in income protection payments in the period March to July 2022 – Exhibit 1 T1 p. 13.
The Applicant also provided payment advice from the Other Party’s employer for the pay period May to June 2022 which suggests that the Other Party was in receipt of more income than was considered by the objections officer – Exhibit 1 T53 pp. 577 – 578.
In her application for review of the objections officer’s decision, the Applicant made the following submissions – Exhibit 1 T1 p. 4:
“The CSA made a decision in June 2022 that my ex husband was to pay $0 in child support between February 2022 and October 2022 as he told the CSA he was NOT working due to an injury and he told the CSA he was NOT receiving income protection payments. In the decision letter, the CSA stated that [the Other Party] advised them that he received a ‘one off’ income protection pay out.
The information supplied by [the Other Party] to the CSA was false. Their decision was made on incorrect information. [The Other Party] did in fact have an injury, but he received regular monthly income protection payments every month that he was off work, not just a ‘one off’ payment…I have clear evidence of these payments entering his bank account. Also he was NOT off work until October 2022. [The Other Party] returned to work in July 2022 and was working from July 2022 – October 2022 – still he was deemed to pay $0 in child support during this period, as even though he had returned to work, he did not make CSA aware of this.’
As previously pointed out, the Other Party lodged an application to change his assessment (Special Circumstances) in March 2022 in which he claimed that he “had no income and unable to work”. The period the Other Party wanted to change his assessment from was 10 February 2022 to “ongoing” – Exhibit 1 T44 p. 443. The Other Party also claimed that he had received a one-off compensation or rehabilitation payment of $15,825.00 – Exhibit 1 T44 p. 444.
The Commonwealth Bank Statement provided by the Applicant discloses that the Other Party received from AIA Australia in addition to the $15,825.00 paid on 7 March 2022, $859.68 also paid on 7 March 2022, $9,375.00 on 16 May 2022, $8,151.67 on

15 June 2022 and $7,441.71 and $1,175.00 on 8 July 2022 – Exhibit 1 T1 pp. 12 – 13.
The Tribunal is satisfied that the objections officer made a decision on incorrect and incomplete information. In addition, the Tribunal notes that the Registrar considers, based on this new information, it would be open to the Tribunal to make a finding that the Applicant has prospects of success if AAT1 were to review the change of assessment decision – Exhibit 2 para 55.
The Registrar drew the Tribunal’s attention to observations of Senior Member Walsh in Tadela and Child Support Registrar [2017] AATA 957, where it was pointed out (at [27]) that parents in child support proceedings, are under a duty to make full and frank disclosure of all of their financial circumstances. It should be noted, that the duty of full disclosure is required not just because of the legal obligations imposed on the parties, but for, perhaps, an even more important reason. Full disclosure of financial circumstances is required to ensure that appropriate payments are made to the child or children of the parents. The aim of the child support regime is to ensure that children are given the support they need and which their parents can afford. If one parent fails to disclose their actual financial circumstances, not only is the burden of child support placed disproportionately on the other parent, but there is the additional risk that the child or children will be deprived of some of the support they are entitled to. The duty of full disclosure then is based not just on fidelity to the law, but to ensure that the child or children of estranged parents are not disadvantaged.
In conclusion, the Tribunal is satisfied based on the information provided by the Applicant, that she has good prospects of success, and this weighs heavily in favour of the Applicant.
Prejudice to another party
The Registrar does not contend that she would be prejudiced if an extension of time were granted – Exhibit 2 para 56.
The Tribunal was not presented with any submissions from the Other Party. Normally, if prejudice is a ground to objection to an extension of time, the party claiming to be prejudiced should lead evidence in support of such a submission. Prejudice is not normally inferred from delay alone – Windshuttle v Federal Commissioner of Taxation (1993) 46 FCR 235.
Clearly if an extension of time were granted it would impact on the Other Party. However, any possible prejudice arising would have its origins in the provision of incomplete and incorrect information to the objections officer. In short, any prejudice arising would be prejudice arising from the correction of a possibly misconceived decision. In these circumstances, the Tribunal does not place great weight on the possible prejudice to the Other Party of granting an extension of time.
Alternative avenues of relief
The Registrar informed the Tribunal that the Applicant may have an alternative avenue of relief by making an application for a further change of assessment pursuant to s 98J(1) of the Act, based on the new evidence outlined above – Exhibit 2 para 57.
However, at the Hearing, Mr Harvey pointed out to the Tribunal that this option was not automatic but involved the exercise of a discretion by the decision-maker. The Tribunal’s attention was drawn to the relevant legal principles governing this option as explained by Austin J in Ignacio and Ignacio [2016] FamCA 50.
The Applicant addressed the Tribunal at the Hearing on this option, and indicated that she would prefer to have the matter resolved by AAT1 and therefore pressed her extension of time application.
Conclusion
The Tribunal notes that the Registrar submits that it is open to the Tribunal to determine that as the Applicant is relying upon evidence that became available after the objection decision was made, that it is appropriate for the extension of time to be granted and allow AAT1 to make the change of assessment decision – Exhibit 2 para 60.
The alternative avenue, namely having the new evidence considered as part of a new change of assessment application, provides a less secure foundation for the Applicant.
This is, as previously noted, a somewhat unusual matter. The Applicant presented at the Hearing as an honest and straightforward person who presented her case objectively. It is tolerably clear that the objection decision was made on the basis of flawed evidence. The interests of justice and the interests of the children of the Applicant and the Other Party clearly weigh in favour of granting the Applicant the extension of time she seeks.
DECISION
The decision of the Social Services & Child Support Division of 14 September 2022, refusing an extension of time for the Applicant to seek a review of the decision of the Child Support Registrar of 3 June 2022, is set aside and substituted with a decision to grant the Applicant an extension of time for the lodging of her review application of 28 September 2022 in order that it may be heard by the Social Services & Child Support Division.

I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

...........................[SGD]...........................
Associate

Dated: 2 June 2023

Date of hearing: 17 May 2023

Applicant:
Self-represented

Solicitors for the Respondent:
Mr S Harvey

(Services Australia)