Pertwee and Child Support Registrar (Child support)

[2021] AATA 698

Pertwee and Child Support Registrar (Child support) [2021] AATA 698 (8 February 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2020/BC020168; 2020/BC020190; 2020/BC020191; 2020/BC0020192; 2020/BC020193; 2020/BC020194; 2020/BC020195; 2020/BC020196

APPLICANT:  Mr Pertwee

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member S Letch

DECISION DATE:  8 February 2021

APPLICATIONS:

Extension applications made on 3 November 2020 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 20 August 2020 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

CHILD SUPPORT – application for extension of time – short delay – no 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. This is an application by Mr Pertwee for extensions of time to apply to the Tribunal for review of decisions of the Child Support Agency (CSA) dated 19 and 20 August 2020 which refused his applications for extensions to object to earlier decisions between 2013 and early 2020 to apply various adjusted taxable incomes for various child support periods in the child support assessment.

2. There is a time limit to apply for “AAT first review”: see section 90 of the Child Support (Registration and Collection) Act 1988 and paragraph 29(1)(d) of the Administrative Appeals Tribunal Act 1975. Mr Pertwee was required to make his application within 28 days of receiving the decision letters of 20 August 2020.

3. Mr Pertwee made applications for AAT first review on 3 and 6 November 2020, outside the 28‑day period. In his written application, Mr Pertwee advised the following:

   From 2014 to 2019 they have just done provisional on an estimate on my taxable income which is not a true and correct reflection from the ATO that is why I’m asking you for help so that they have to have a true reflection against my taxable income from the ATO because the amount of money that they say I owe is not what I don’t and is not a true  amount owing of child-support it needs to reflect my tax for Income.

4. The established cases indicate that the starting position is the prima facie rule that proceedings commenced outside a statutory period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at [416]). However, the primary concern “is to do that which will enable justice to be done between the parties” (see Martinsen v Secretary, Department of Family & Community Services [2004] FCA 297 per Spender J). Spender J quoted McHugh J in Gallo v Dawson (1990) 64 ALJR 459 (Gallo v Dawson) as follows:

   In order to determine whether the rules [imposing time limits] will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time ...

   When the application is for an extension of time … it is always necessary to consider the prospects of the applicant succeeding in the appeal …

5. In line with Wilcox J’s survey of cases in Hunter Valley Developments P/L v Cohen (1984) 3 FCR 344, the Tribunal proposes to consider the matters identified in Gallo v Dawson under the following headings:

   ·the explanation for the delay;

   ·the merits of the substantial application;

   ·any prejudice to the other party, including any prejudice in defending the proceedings occasioned by the delay; and

   ·any public interest considerations that might flow from a successful application including “the unsettling of other people … or of established practices”.

Explanation for the delay

1. The absence of a reasonable explanation for delay will ordinarily exclude the granting of an extension of time. In general terms, it will be circumstances beyond a person’s control that will be regarded favourably in this context.

2. Mr Pertwee made an application in another matter (Tribunal reference 2020/BC020160) on 3 November 2020 in respect of a decision of the CSA on 9 October 2020 to refuse to change an original decision made on 15 August 2018 to set his 2017/18 adjusted taxable income at some $186,000. Curiously, the CSA granted Mr Pertwee an extension to object to that original decision on 29 July 2020, despite refusing extensions in all the other matters the subject of this application.

3. The delay here is not lengthy. Following the decisions of 20 August 2020, he was awaiting the objection decision ultimately made on 9 October 2020; he then applied to the Tribunal on 3 November 2020 (within time). It appears Mr Pertwee was not “sitting on his hands”. This factor does not weigh heavily against Mr Pertwee’s application for extensions.

Merits of the objection

1. There is no purpose to be served by granting an extension if an application is not likely to succeed.

10.This is the biggest hurdle to Mr Pertwee’s applications. There are very limited circumstances where a person seeks to have lower adjusted taxable incomes retrospectively substituted into the child support assessment.

11.Simply put, section 58A of the Child Support (Assessment) Act 1989 provides that where adjusted taxable income is later determined to be higher, it is given retrospective effect in the child support assessment. However, when it is lower, the starting position is that it is not applied retrospectively.

12.Lower adjusted taxable incomes are only applied if certain limited circumstances are prescribed by the regulations. Regulation 11 of the Child Support (Assessment) Regulations 2018 provides the following:

11  Adjusted taxable income—prescribed circumstances

(1) For the purposes of section 58A of the Act, the following circumstances are prescribed in relation to a parent who was unable to provide information about the parent’s adjusted taxable income to the Registrar at the time the relevant administrative assessment was made:

(a)  one or more of the following applied in relation to the parent at that time:

(i)  the parent did not know that an application for the assessment had been made and accepted;

(ii)  the parent had a serious illness or injury;

(iii)  the parent was under detention or imprisonment;

(iv)  the parent resided in a remote location which made it difficult to contact the Registrar;

(v)  a natural disaster prevented the parent from being able to contact the Registrar;

(vi)  there was some other exceptional circumstance that prevented the parent from providing the information;

(b)  the Registrar confirms that the parent was unable to provide the information at that time because of a circumstance mentioned in paragraph (a);

(c)  the parent later provides the information to the Registrar as soon as is practicable in the circumstances.

(2) For the purposes of section 58A of the Act, the following circumstances are prescribed in relation to a parent who resided overseas during the last relevant year of income for the child support period for which the Registrar made the relevant administrative assessment:

(a)  the parent was not required to lodge a tax return under the Tax Act;

(b)  the parent provides the information about the parent’s adjusted taxable income to the Registrar within a reasonable time in the circumstances.

13.The summary of Mr Pertwee’s evidence was that he was suffering a variety of medical conditions, including depression, diabetes and high blood pressure. He said he was prevented from being able to see his children. He had an unsatisfactory conversation with a CSA officer years ago, and felt he was being unfairly treated. He effectively told the CSA he would have no further no dealings with them; for some years, he refused to engage with them. He was not in a position to challenge the variety of assessments the CSA (in the Tribunal’s view, properly and legally made) in the absence of information about Mr Pertwee’s adjusted taxable incomes.

14.Mr Pertwee has not presented any medical evidence which would explain why he was unable to engage with the CSA for so many years. It appears he became frustrated with the CSA and its assessments, and essentially “put his head in the sand”. In a vacuum, the CSA appropriately applied its most recent information about Mr Pertwee’s adjusted taxable income over the years following his election to not engage with CSA. In that sense, he is the author of his own misfortune.

15.The Tribunal does not consider that Mr Pertwee can satisfy any of the requirements of Regulation 11. There are no exceptional circumstances. Accordingly, there is no proper legislative basis to give retrospective effect to Mr Pertwee’s actual (reduced) adjusted taxable incomes. Granting an extension of time would ultimately serve no purpose as, in the Tribunal’s perspective, he cannot succeed on the underlying substantive issue.

16.This factor weighs very heavily against granting an extension of time in respect of any of Mr Pertwee’s applications.

Potential prejudice to the other party

17.The Tribunal is concerned about the possible prejudice to the other party who has been entitled to rely, and budget, upon the historical child support assessment.

Public interest considerations

18.Parliament has seen fit to set a 28-day time limit for the lodgement of objections so that parents (and the CSA) can act with certainty as to the outcome when the objection period has elapsed. The public has an interest in reviews of decisions made by the CSA being performed in a timely fashion and in a manner that ensures all applicants are treated fairly and equally. Accordingly, an extension of the time for objection is not to be automatically granted.

Conclusion

19.Mr Pertwee’s applications, if permitted to proceed, have no prospects for success.  The Tribunal considers the interests of justice require that the extension applications be refused.

Member S Letch