Penning and Child Support Registrar (Child support)

[2023] AATA 1660

Penning and Child Support Registrar (Child support) [2023] AATA 1660 (27 April 2023)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2023/MC025811

APPLICANT:  Mr Penning

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                27 April 2023

APPLICATION:

An extension application made on 20 March 2023 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 9 November 2021 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 - some merit - extension of time refused

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.

STATEMENT OF REASONS

1. Mr Penning and [Ms A] are the parents of [Child 1]. There has been a child support assessment in place since 3 September 2013. [Ms A] has been the parent liable to pay child support.

2. On 10 December 2020 an officer from Services Australia (Child Support) made the decision to credit $50,000 paid on 8 September 2020 as a non-agency payment.

3. On 9 November 2021 Mr Penning lodged an application for review of this decision with Child Support made on 10 September 2020. As Mr Penning applied more than 28 days after the decision of 10 September 2020 an application for an extension of time was also lodged.

4. On 22 November 2021 Child Support refused to grant Mr Penning an extension of time.

5. On 20 March 2023 Mr Penning lodged an application for review with the Administrative Appeals Tribunal (the tribunal). As Mr Penning’s application to the tribunal was also more than 28 days after the objections officer’s decision of 22 November 2021 the tribunal must now consider whether to grant an extension of time to Mr Penning. The matter was heard on the papers. The tribunal had regard to the subsection 93(2) statement and documents supplied by the Agency (pages 1–158) and the reasons outlined by Mr Penning in his extension of time application.

6. The issue to be considered is whether Mr Penning should be granted an extension of time to lodge an application of the tribunal’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 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 (the AAT) 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 Penning was advised of his right to seek review with the tribunal in accordance with subsection 87(3) of the Act.

8. Mr Penning provided the reason for his extension of time application was due to the following:

   I am not claiming the decision was wrong.

   Child support filed my issue as "Refusal of an extension of time to raise an objection".

   It is the fact that my issue was processed under this category that I feel warrants a review by the AAT. Because I was not in fact making an "Objection". I'm not saying that Child support made an error. The issue comes down to my inability to communicate with child support to explain the situation. They did reach out to me. I was not capable of answering.

   So I accept full responsibility for this. I'm hoping that my documented history of mental illness and family violence serve as extenuating circumstances.

   So as I wasn't able to communicate regarding the issue, my issue fell into this category because it is the closest applicable category. But because of this miscategorisation the situation was misunderstood. You see the problem when you look at the letters from child support to me.

   "We have received news that the other party paid you $50,000 as a non-agency payment. We have made the decision to accept that. If you have an objection, please do so within 2 weeks.

   "We have received news" in this context, means that someone from the other person's party informed  child support of the non-agency payment. But that is incorrect as it was in fact myself that made the call.

   The letter would be more accurate if it said "You called us regarding the $50,000 owed to you by the other party. You explained that this case involved family violence. That the other party had involved your daughter in the situation, she forced our daughter into thinking she (emotionally abusive). And hurting our daughter to force me to remove the money she owed is clearly financial abuse. It's taken me a long time to realize that her actions are not in line with the Family Law.  

9. Mr Penning also states in his application to the tribunal the following:

   …the reason I did not apply within the time limit is because i wasn’t of sound mind. I have a long history of suffering from major panic disorder and major depression. These mental problems I’ve had off and on since primary school. There were periods when I couldn’t leave the house. I’ve had years of being unable to answer the phone. And I can see looking back that I have been subject to family violence since 2013. It’s been 10 years and I only recently turned the corner. I experienced six years of isolation before Covid started. I lost the ability to talk sensically. I was suicidally depressed. I’m not sure how I survived. I know that this isn’t a fun thing to read, but I’m ok now. In the last few days I’ve noticed that I’m thinking [a] lot more clearly.

10. On 9 November 2021 Mr Penning in his objection application to Child Support wrote “I was manipulated by [Ms A] into lying about these payments. The staff member I spoke to was aware that I was being coerced and tried to convince me not to proceed”. Mr Penning outlines he made the decision to say he had received $50,000 from [Ms A] as a non-agency payment to be credited to his child support liability because [Ms A] was threatening him in relation to his care for [Child 1].

11. Mr Penning was advised of his right to seek review both by a letter outlining the decision and the original decision-maker verbally.

12. While the tribunal accepts Mr Penning’s reasons for the delay, the reasons outlined do not ameliorate the length of time Mr Penning has taken to lodge an application for an extension of time to the tribunal between Child Support’s refusal to grant an extension of time on 20 November 2021 and Mr Penning’s application to the tribunal on 20 March 2023. Mr Penning has requested a review of the decision by Child Support to refuse to grant an extension of time 468 days late. The tribunal is satisfied that Mr Penning has rested on his rights.

13. While there may be merit in Mr Penning’s application for review, Mr Penning accepted that the payment of $50,000 had been made by [Ms A] in lieu of child support when this had not occurred. During the discussion between Mr Penning and Child Support it was stated that both parents accepted this payment was made in lieu of child support and a decision was made on this basis by Child Support. Mr Penning indicated he was advised by the Child Support officer not to proceed with this, but contrary to this advice went ahead with his application. The tribunal considered there would be prejudice to the other party given the delay in lodging an application for review given the time that has passed since the original decision was made.

14. The tribunal also considered that extending the period in the present circumstances would prejudice community expectations in relation to the finality and certainty of administrative decision making. It is the tribunal’s view that the delay in seeking review combined with the application to the tribunal for review of the refusal to grant an extension of time outside the 28-day time limit, would create prejudice to the wider public if the application were granted in this matter.

15. Mr Penning has requested a review out of time. He has not provided an adequate explanation for the delay. The tribunal is of the view that there is little to no merit in reviewing the decision and 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 Mr Penning.