PDTW and Child Support Registrar (Child support second review)
[2023] AATA 152
•4 January 2023
PDTW and Child Support Registrar (Child support second review) [2023] AATA 152 (4 January 2023)
Division:GENERAL DIVISION
File Number(s): 2021/9993
Re:PDTW
APPLICANT
AndChild Support Registrar
RESPONDENT
AndWFMH
OTHER PARTY
Decision
Tribunal:Member Lee Benjamin
Date:4 January 2023
Date of written reasons: 15 February 2023
Place: Brisbane
The Tribunal sets aside the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 23 November 2021 and substitutes a decision that the Applicant be granted an extension of time (to 3 February 2023), to seek review of the Respondent’s decision dated 23 August 2021.
.........................[SGD ]............................
Member Lee Benjamin
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 PROCEEDURE - application for extension of time - where application refused in first instance - where notification of decision sent to wrong address - where applicant appealed in timely way - extension of time granted
Legislation
Administrative Appeals Tribunal Act 1975
Child Support (Assessment) Act 1989
Child Support (Registration and Collection) Act 1988
Cases
Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344
Johnson and Commonwealth of Australia [1990] AATA 1
Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451
REASONS FOR DECISION
Member Lee Benjamin
15 February 2023
The decision under review
The Applicant’s substantive application seeks review of a decision of the Administrative Appeals Tribunal (Social Services & Child Support Division) (AAT1) made on 23 November 2021. The decision of the AAT1 was to refuse to grant an extension of time to seek review of a decision of the Child Support Registrar (the Respondent or Registrar) dated 23 August 2021.
Issue
The issue before this Tribunal is whether it is reasonable in all of the circumstances to grant the Applicant an extension of time to make his application to the AAT1 to review the decision made by the Registrar dated 23 August 2021.
Background
The Applicant and Other Party are the separated parents of C1 (born 2003) and C2 (born 2005) (the children).
On 12 February 2021, the Applicant filed an application with Services Australia (the Agency) for a change of assessment (Exhibit 1, T5, p 30) for the following reasons:
(a)C1 is working full time as an apprentice carpenter and earns significant income;
(b)The Other Party has recorded an increase in income whilst the Applicant has no income; and
(c)The Applicant has a duty to support two other children.
The Applicant’s request for change of assessment was refused on 14 April 2021 as a reason had not been established (Exhibit 1, T18, p 65).
On 13 May 2021, the Applicant lodged an objection to the decision to refuse his request for change of assessment (Exhibit 1, T19, p 72).
A decision was made by an authorised objections officer in the Agency on 23 August 2021 who allowed the objection in part (objection decision) (Exhibit 1, T30, p 114).
The Applicant submits that the decision was made 103 days after the objection application was made. The Applicant drew the Tribunals attention to subsection 87(1)(b) of the Child Support (Registration and Collection) Act 1988 (Collection Act). This provides that within 60 days of the objection being lodged, the Registrar must either disallow the objection or allow it in whole or in part (Exhibit 5, p 2 at [5]).
The Respondent contends that this decision was delivered to the Applicant electronically on 30 August 2021 (Exhibit 2, Attachment E). The Application denies that the decision was delivered to the Applicant electronically on 30 August 2021 and says that the Registrar sent the email notification to an incorrect email address (Exhibit 5, p 1 at [3]).
On 4 October 2021 the Applicant applied for review in the AAT1 of the objection decision (Exhibit 2, Attachment A).
On 23 November 2021 the AAT1 determined that the application was lodged out of time (by seven days) and refused to grant an extension of time to seek review of the objection decision (Exhibit 1, T2, p 4).
On 20 December 2021 the Applicant sought review in this Tribunal of the AAT1 decision refusing to grant an extension of time to seek review of the objection decision (Exhibit 1, T1, p 1).
The Registrar issued a Departure Prohibition Order against the Applicant on 22 February 2022 which the Applicant says has adversely affected his ability to gain employment.
As at 7 June 2022, the Applicant says that his child support arrears were $7,088.10.
By decision dated 25 February 2022, the Tribunal decided to join the Other Party as a party to these proceedings (Exhibit 2, Attachment B).
On 1 August 2022, a Hearing was held for this application. At the Hearing, the Applicant and the Other Patty appeared by telephone, were self-represented and gave evidence under affirmation. The Respondent was represented by TinYan Wong of Services Australia, who appeared by telephone.
Legislation and case law principles
Under section 90 of the Collection Act and subsection 29(2) of the Administrative Appeals Tribunal Act 1975, an application for AAT first review must generally be lodged within 28 days of the applicant receiving notice of the decision.
Section 91 of the Collection Act provides that if the period for applying for AAT1 first review has ended, a person may still make an application for review to the AAT1 that includes an extension of time application, despite the period ending. Subsection 91(2) of the Collection Act provides that the extension application must state the reasons for the person's failure to apply for the review within the period.
Section 92 of the Collection Act provides that the AAT1 must consider the extension application and give reasons for granting or refusing the extension of time application within 60 days.
Subsection 96A(a) of the Collection Act provides that an application for AAT second review may be made to this Tribunal if a decision has been made under section 92 of the Collection Act to refuse an extension of time application.
In Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344, the Federal Court set out a series of factors that might be of relevance under similar provisions in the judicial review context.
In Hunter Valley, Wilcox J pointed out that the "prescribed period of 28 days is not to be ignored… Indeed, it is the prima facie rule that proceedings commenced outside the period will not be entertained…" In Brown v Federal Commissioner of Taxation (1999) 99 ATC, Hill J stated that, in the taxation context, the Tribunal should be "guided by what the justice of the case requires".
In Johnson and Commonwealth of Australia [1990] AATA 1, DP Todd had regard to six general principles enunciated by the Federal Court of Australia in Hunter Valley, and summarised those principles at [19]:
i.'It is a prima facie rule that proceedings commenced outside the prescribed period will not be entertained. An extension of time will, however, be granted if it is proper to do so.
ii.Consideration is to be given to the action taken by the applicant. Did he or she 'rest on his or her rights' so as to lead the decision maker to believe that the matter was concluded, or did he or she continue to make the decision maker aware that the decision was being contested?
iii.Consideration should be given to whether any prejudice to the respondent would be caused by the grant of an extension.
iv.There being no real prejudice to the respondent, consideration must be given to whether there will nevertheless be a wider prejudice to the public in terms of disruption to established practices.
v.Consideration of the merits of the substantial application should be made to see if these indicate that an extension of time should be granted.
vi.Finally, consideration should be given to whether it is fair as between the applicant and other persons in a like position to grant the extension of time'
In determining the question of an extension of time, the Tribunal should weigh together all relevant factors: Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451 (per Katz J).
In this matter, the Registrar submits, and I agree, that in this case, the factors for consideration include:
(a)length of delay;
(b)awareness of appeal rights and explanation for the delay;
(c)prospects for success; and
(d)any prejudice to another party.
The application of these principles to sections 91 and 92 of the Collection Act has been affirmed by the Tribunal on numerous occasions (see, e.g., ZWHJ and Child Support Registrar [2020] AATA 2323; RLDY and Child Support Registrar [2020] AATA 688; PRZR and Child Support Registrar [2019] AATA 4617) (Exhibit 2, p 5, at [24]).
consideration
In considering the issue before this Tribunal, I have had regard to the evidence and submissions placed before it, in writing and made at the Hearing. In applying the relevant principles to the evidence before me, I make the conclusions set out below.
Length of delay
The Applicant does not dispute that his substantive application to the AAT1 was lodged seven days beyond the stipulated statutory deadline. The length of delay involved in a case is a relevant consideration. The Respondent concedes that “it is not [a] long [delay]…” (Transcript, p 5, lines 40-43). On the one hand, the short delay does not automatically mean that an extension of time ought to be granted. On the other hand, an extension of time should be granted if it is proper to do so.
Awareness of appeal rights and explanation for the delay
The Applicant does not dispute that he was aware of his appeal rights:
“MEMBER: Can I confirm that you were aware of your appeal rights and that you were aware that the number of days was 28 to appeal, but in response to that you say that you were not aware until much later?
APPLICANT: Yes, Member, because I couldn’t appeal the decision, because, in my mind, no decision has been made because I had not been notified of it.
MEMBER: And how long after you were - so, what is the date on which you say you were aware of the decision?
…
APPLICANT: And as soon as I was aware of it I lodged with AAT.” (Transcript, p 12, lines 29-37, p 13, lines 1-6)
The Respondent contends that the Applicant has provided not provided a substantive explanation for the delay in filing his application (Transcript, p 5, lines 43-45). With due respect to the Respondent, I do not accept this contention.
The Applicant provided the following explanation for the delay in filing his application:
“MEMBER: I’m interested to hear about the length of delay. What is the reason?
APPLICANT: The reason is…Member, is after 103 days I stopped looking at the myGov portal. It’s an unreasonable timeframe. I was aware that an objection decision was required to be made by the registrar within 60 days. I was checking the portal regularly up until that point. In my initiating application I had a screen shot of when I noted, and I was looking for a - on myGov portal for another matter I noted that there was a letter there from the registrar. I read it and immediately acted on that, but prior to that I simply wasn’t aware of it and that was due to the 103 days’ timeline between my application and the decision, and also I wasn’t - I do not receive any notification, and the registrar’s asserting that I was notified and my response to that is I wasn’t because you sent it to the wrong email address, even though on 9 July 2020 you acknowledged by email that you had my current email address…The reason is that I simply do not get any alert or any information from the registrar in relation to the decision, and as soon as I did - and I wasn’t (indistinct) standing on my rights, Member. I was waiting for a decision. And what I would add to that is when I have a statement of account it gets mailed to me. When the part share prohibition order was filed against me, that was mailed to me. The registrar doesn’t seem to have any issue contacting me on these other matters, but in this matter they delayed for 103 days, and then sent it to the wrong email address.
…
MEMBER: ...So if I could just summarise, and correct [me] if I’m mishearing you, PDTW, your submission is that you didn’t receive due notification of the registrar’s decision. You say that it was sent to the wrong email address…is that what your submission is?
APPLICANT: That’s exactly what I’m saying, Member.”
MEMBER: Okay.
APPLCIANT: And in the T documents where the registrar outlines the fact that I received a notification you will clearly note the email that that notification was sent to was redundant.
MEMBER: Can you just direct me exactly to where in the bundle that is?
…
APPLICANT: In the registrar’s outline of submissions, Member, it is paragraph 9.
…
APPLICANT: Yes. And you will note that submission, and then you will note there is reference to an attachment E.
MEMBER: Yes.
APPLICANT: And you will note the email address.
MEMBER: It says [email address redacted]
APPLICANT: Yes.
MEMBER: Okay. And so what should have the
…
MEMBER: The [email address redacted] account?
APPLICANT: Yes, that’s correct, Member.
MEMBER: Okay.
APPLICANT: And if I may make a further comment in relation to that?
MEMBER: Yes.
APPLICANT: I have never given that email address to Services Australia, because that was actually my work address.
MEMBER: Work address. Yes, okay.
APPLICANT: And I certainly don’t have private matters going to work address. And also that work address was redundant regardless because I no longer worked there, because the company doesn’t exist.
MEMBER: Okay.
APPLICANT: And you will note that the registrar did acknowledge that on annexure 1 of the applicant’s statement of issues and facts which is easy to find.
MEMBER: Yes.
APPLICANT: You will note that I received a note or an email from them on 9 July and
…
APPLICANT: It’s page 3 of exhibit 5, Member.
MEMBER: Page 3? Yes. This looks like a - does this refer to the adding of an email address to the MyGov account, is that what this is that’s linking the child support or service to your MyGov account, is that what that
APPLICANT: Yes, and it’s also confirming where notifications would go. So that was a consequent - this email came about as a consequence of a conversation that I had on 8 July with the Child Support Agency in relation to me notifying them of my redundancy.
MEMBER: Okay.
APPLICANT: I, at that point in time, confirmed that I would receive electronic communication, and provided that correct email address, and yet the notification subsequent to that went to an old address.” (emphasis added) (Transcript, p 9, lines 42-47, p 10, lines 1-47, p 11, lines 1-47, p 12, lines 1-27)
I find the Applicant’s submissions, together with his oral evidence, which is supported by documentary evidence, to be credible and compelling. The Applicant appears to have duly provided his email contact details to the Registrar and to the my.gov.au online system. The Applicant does not appear to have been duly notified of the Registrar’s decision dated 23 August 2021 because neither the Registrar nor the my.gov.au online system generated a notification to the correct and authorised email address about the Registrar’s decision.
Additionally, the Applicant’s evidence was, and I accept, that he regularly checked the my.gov.au online system for the Registrar’s decision over the 60 day period over which the Registrar would normally be expected to have made her decision:
“MS WONG: Okay. I’d also want to ask you, so you said that after you had filed that objection
APPLICANT: Yes.
MS WONG: that there was 60 days for the registrar to make a decision, and during that point in time you were regularly checking your MyGov for an outcome; is that correct?
APPLICANT: Yes. Yes.
MS WONG: Yes.
APPLICANT: And I can confirm that, because I’ve got a screenshot of it, which I provided in my initial application to the AAT.” (Transcript, p 16, lines 34-45, p 17, lines 1-2)
Overall, I find the Applicant’s explanation for the delay in making his application to be persuasive. I further find that the Applicant acted promptly in exercising his appeal rights when he became aware of the Registrar’s decision dated 23 August 2021.
Prospects for success
The Respondent correctly notes it is relevant to consider the merits of the proposed appeal in a matter such as present case: Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121, 122 per Von Doussa J. When considering an application for an extension of time, it is not appropriate to embark on a trial of the merits but it may be that the stronger the apparent merits the more likely that an extension of time would be appropriate: Brown [29], [38] per Hill J.
The Registrar concedes that it cannot at this stage be said that the Applicant’s proposed appeal has no prospect of success (Exhibit 2, p 7, at [38]).
According to the Respondent, the Applicant received a redundancy payment of $228,486 from his employer on 30 June 2020 (Exhibit 2, p 7, at [39]).
The Applicant disputes that he received a redundancy payment of $228,486 from his employer on 30 June 2020. The Applicant contends that the correct redundancy payment is $144,752 and has provided documentary evidence of the same (Exhibit 5, p2, at [8], Annexure 2).
Due to the discretion available to a decision maker when reviewing a change of assessment, it is possible that on review the AAT1 may make a different decision. The AAT1 may increase or decrease the annual rate.
In my view, the substantial discrepancy between redundancy payment amounts must, on any reasonable view, go to the correctness of a decision maker’s finding on the financial resources available to an Applicant. In turn, this must impact on whether it would be just and equitable to change the assessment, having regard to the children and the parents (subsection 98C(1)(b) and subsections 117(4) to 117(9) of the Child Support (Assessment) Act1989).
On the evidence before me, I consider (and find) that the Applicant’s review application has moderate to strong merits.
Any prejudice to another party
The Respondent contends, and I agree, that there is no prejudice to the Respondent in the instant case Transcript, p 6, lines 3-6) In the ordinary course, WFMH is well within her rights to act upon the decision being final. But this is no ordinary case, it is clear (and I find) that the Applicant has not rested on his appeal rights. On balance, I consider the comparative unfairness to the Applicant to be greater than to the Other Party if the extension of time is not granted.
Summary
Overall, in weighing together all relevant factors in respect of the substantive decision under review, I find that it is reasonable in all of the circumstances to grant the Applicant an extension of time to make his application to the AAT1 to review the decision made by the Registrar dated 23 August 2021.
DEcision
The Tribunal sets aside the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 23 November 2021 and substitutes a decision that the Applicant be granted an extension of time (to 3 February 2023), to seek review of the Respondent’s decision dated 23 August 2021.
I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Member Lee Benjamin
.........................[SGD].............................
Associate
Dated: 15 February 2023
Date of hearing: 4 February 2023 Applicant: Self-Represented Solicitor for the Respondent: Ms TinYan Wong, Services Australia Other Party: Self-Represented
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