Penington and Child Support Registrar (Child support)

[2023] AATA 1183

Penington and Child Support Registrar (Child support) [2023] AATA 1183 (6 April 2023)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2023/BC025694

APPLICANT:  Ms Penington

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                06 April 2023

APPLICATION:

An extension application made on 28 February 2023 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 16 January 2023 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

CHILD SUPPORT – application for extension of time - no satisfactory explanation for the delay – not devoid of merit – prejudice to the other parent and 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. Ms Penington and [Mr A] are the parents of [Child 1] and [Child 2]. There has been a child support assessment in place from 5 October 2020. Services Australia (Child Support) have been collecting child support from 13 October 2020. Ms Penington is the parent liable to pay child support. [Child 1] and [Child 2] are in each parent’s 50% care.

2. On 16 January 2023 an objections officer partly allowed Ms Penington’s objection. Ms Penington was notified of this decision electronically on 17 January 2023.

3. Ms Penington lodged an application for review with the Administrative Appeals Tribunal (the tribunal) on 28 February 2023. As this request for review of the decision was not lodged with the tribunal within 28 days of the objections officer’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 supplied by Child Support (pages 1–524) and the reasons for review outlined by Ms Penington in her extension of time application.

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 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.

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 six 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, differently constituted, 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 Ms Penington was advised of her right to seek review with the tribunal in accordance with subsection 87(3) of the Act.

8. Prior to the departure determination Ms Penington was assessed to pay child support as follows:

   ·      From 1 August 2022 to 31 October 2023 an annual rate of child support of $7,390 based on an adjusted taxable income (ATI) of $92,835 to be paid by Ms Penington to [Mr A]. [Mr A] was assessed on an ATI of $30,222.

9. The objections officer found that departure from the above administrative assessment should occur and changed the administrative assessment as follows:

   ·      From 15 July 2022 to 30 June 2025 the ATI for [Mr A] is set to $68,000.

   ·      From 1 October 2022 to 30 September 2023 the annual rate of child support payable by Ms Penington is reduced by $1,129.

   ·      The new annual rate payable by Ms Penington as a result of the objections officer’s decision is $1,687.

10. Ms Penington in her application to the tribunal did not specifically address the reasons for the delay in her application to the tribunal, but wrote the following:

    I have agreed with the decision made. I am merely dealing with managers who keep saying they will call me back because they will look into my case, with lack of communication. Child support amount owing to me is simply not being paid since the decision has been accepted and I would like to be

    paid back my fair amount. I have made multiple phone calls to attempt to deal with no resolution or clear communication of what is being done about the issue. I never received a phone call from the decision maker explaining the decision but am happy with it as I see online with what I see I am owed. I just want my money paid back which hasn't happened.

11. The main concern Ms Penington expressed is that the decision made by the objections officer did not seem to have been applied to her payments “due to a glitch in the system” and she stated that Child Support is refusing to pay the money she is owed. The tribunal notes that Ms Penington has had her child support obligations reduced by $1,129 as a result of the objections officer’s decision. This would usually be deducted from Ms Penington’s child support liability and is usually not refunded to the payer. 

12. Ms Penington is requesting a review of something she views child support has not done. While the tribunal is not reviewing the substantive decision, the only decision the tribunal has jurisdiction to review is the objections officer’s decision. Ms Penington has not provided a reason for the delay in her application to tribunal. The tribunal is satisfied Ms Penington rested on her rights and does not have an acceptable reason for the delay in her application for review. 

13. The tribunal has considered the decision by the objections officer and is satisfied that a more favourable decision would not necessarily follow on appeal, this is because the tribunal is satisfied that Ms Penington is requesting a review of the differences in the treatment in the grossed up amount of her fringe benefit tax rate when compared to [Mr A]’s fringe benefit tax rate as well as the failure of Child Support to reduce her child support liability.

14. The tribunal notes that [Mr A]’s ATI has been increased by some $37,778 as a result of the objections officer’s decision, this increase reflects the benefit [Mr A] is likely to receive from his ability to salary package some of his income. Therefore, the objections officer has taken [Mr A]’s fringe benefits into account. It is worth noting that the objections officer increased [Mr A]’s income from $56,000 (the change of assessment decision made by the original decision maker) for the period 1 April 2022 to 31 March 2024 to $68,000 for the period 15 July 2022 to 30 June 2025. Thereby, reducing Ms Penington’s child support liability for a longer period.

15. Ms Penington has requested a review of the objections officer’s decision 14 days late. The tribunal considered whether allowing an extension of time would prejudice [Mr A] and the wider public. The tribunal concludes that extending the period in the present circumstances would prejudice [Mr A] and impact wider community expectations in relation to the finality and certainty of administrative decision making. The tribunal also notes that there is a significant increase in [Mr A]’s income which will reduce Ms Penington’s child support liability, the decision is more favourable to Ms Penington.

16. Ms Penington has requested a review out of time. She has not provided an adequate explanation for the delay. The tribunal is of the view that while there may be some 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 Ms Penington.