Rolt and Child Support Registrar (Child support)

[2022] AATA 742

Rolt and Child Support Registrar (Child support) [2022] AATA 742 (25 February 2022)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2021/SC022924

APPLICANT:  Mr Rolt

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                25 February 2022

APPLICATION:

An extension application made on 10 December 2021 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 30 September 2021 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

CHILD SUPPORT – application for extension of time - reasonable explanation for the delay - weak merit - 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. A person is generally required to lodge an application for review of a decision of the Registrar with this tribunal within 28 days after a notice of the decision is given to them (section 90 of the Child Support (Registration and Collection) Act 1988 (the Act) and paragraph 29(1)(d) of the Administrative Appeals Tribunal Act 1975).

2. Where the period for lodgement has ended, the person may send the application for review to the tribunal along with an application requesting that the review be treated as if it was lodged within the allowed time (section 91 of the Act). The AAT must consider the application for extension of time, grant or refuse that application and advise the person of the decision in writing.

3. On 30 September 2021 Mr Rolt was advised by letter of the decision to disallow his objection to an original decision made by Services Australia – Child Support (Services Australia) on 8 July 2021, to accept [Ms A’s] estimate of income for the period 8 July 2021 to 30 June 2022 (an annualised amount of $16,164).

4. On 10 December 2021 Mr Rolt lodged an application for review with the AAT in relation to the objection decision made on 30 September 2021, together with an application for an extension of time, setting out why the application was not lodged within the 28-day time limit.

5. On 25 February 2022 I determined the application for an extension of time to lodge the application. I had regard to the information in Mr Rolt’s extension of time application and to documents given to the AAT by him on 23 February 2022, and to the subsection 37(1) statement and documents provided by Services Australia.

6. The documents from Services Australia confirm the objections officer’s decision was sent to Mr Rolt on 30 September 2021, and that it was sent electronically. As the notice was sent electronically, it is taken to be given on 30 September 2021. As the application was not lodged until 10 December 2021 it was about six weeks out of time.

7. I considered whether to grant the application for an extension of time to lodge the application for review of the decision of 10 December 2021.

8. In making my decision I must apply the law and I am guided by decisions made by courts or tribunals, including in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186 (Hunter Valley Developments); and Brown v Commissioner of Taxation [1999] FCA 563.

9. The AAT (second review) applied the principles set out in Hunter Valley Developments in Mulheron and Australian Telecommunications Corporation [1991] AATA 673 (Mulheron). They 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 or took action to make the decision-maker aware that the decision was being contested;

   ·Any prejudice to the other party including any difficulties that they will experience in providing evidence as a result of the delay;

   ·Any wider prejudice to the general public;

   ·Fairness in granting an extension of time as between the applicant and other persons in a similar position;

   ·The merits of the substantive application;

   ·Whether it is proper to grant the extension of time.

10. In the application for an extension of time Mr Rolt stated he had applied for review within 28 days of the decision (application 2021/SC022555) but withdrew the application as there was “an unacceptable risk of family violence”.  Mr Rolt supplied a copy of an Apprehended Domestic Violence Order (ADVO) which was to expire in October 2021, and documents showing he has applied for the ADVO to be extended. He stated he is prepared to proceed, so long as there is one hearing only, or if the matter is dealt with on the papers. I was satisfied, on balance, there is a reasonable explanation for the delay in Mr Rolt lodging the application for review.

11. I also considered the merit of the application. As noted above, Mr Rolt is seeking review of a decision to accept [Ms A’s] estimate of her income for the 2021/22 year, annualised to an amount of $16,164 for the period from 8 July 2021. Mr Rolt stated that [Ms A] is receiving income from a family company, paid directly or indirectly by her parents. He noted a similar finding by the AAT in October 2020 (2020/HC019470 in relation to whether the fixed annual rate should apply). Mr Rolt also stated that [Ms A] has expenditure, including for legal fees, that could not be sustained on her declared income. He also submitted information which he said indicates [Ms A] is no longer receiving Centrelink payments and, by implication, is likely to be working.

12. I note that a decision in relation to whether an estimate of a person’s adjusted taxable income (ATI), as defined, for a year of income should be accepted directs attention to whether the Registrar is satisfied the estimate was likely to be an accurate estimate of the person’s ATI (including taxable income, reportable fringe benefits, target foreign income, net investment loss, tax free pension and benefits and reportable superannuation contributions). It does not include assessment of other non-taxable resources available to the person.

13. In this case Services Australia confirmed that [Ms A] is no longer employed with [Employer 1] and initiated searches of ATO databases to confirm there is no other evidence of income from undeclared sources. Having regard to the information provided by Mr Rolt and the documents from Services Australia, I concluded that the merit of Mr Rolt’s application is weak, in it is unclear that the financial resources he states [Ms A] has access to (from her family for example) would, in any case, be assessed as ATI.   

14. I also took into account that [Ms A’s] estimate will be reconciled when she completes her income tax return for 2021/22 and if it is higher than her estimate the child support assessment will be amended on the basis of her actual ATI.

15. I note, also, that in his application Mr Rolt alleges that [Ms A] has access to resources greater than she has declared, which he argues is apparent in her expenditure. As Mr Rolt was advised in the written reasons for the AAT decision in October 2020, it is open to either party to apply for a change of assessment; a process that is capable of considering the income, property and financial resources of the parents, and is not limited to considering the person’s ATI. I was of the view that what Mr Rolt is seeking through his application in relation to [Ms A’s] estimate of her ATI is better addressed through a change of assessment process.

16. While I was satisfied there is arguable merit in the application, Mr Rolt has not provided any information to suggest the merit of the application is compelling.

17.I also considered the prejudice to the other party to the child support case, to Services Australia and to the general public, should the extension of time be granted.

18.I was satisfied there would be some prejudice to [Ms A] if Mr Rolt’s application for an extension of time was granted, as she could be exposed to the possibility of a change in the child support assessment for a period for which she could reasonably have expected (the period for review of the objection decision having passed and Mr Rolt having withdrawn his earlier application) the assessment to be final.

19.I considered there would be some prejudice to the general public if Mr Rolt was granted an extension of time as a departure from the timeframe that applies to others in like situations, without any manifest error to be corrected, would not be equitable.

Conclusion

20.I carefully weighed the factors I had to consider. While I was satisfied, on balance, there is a reasonable explanation for the delay in this case, I was not persuaded the merit of the application is so compelling that it is appropriate to grant the application, particularly as the estimate Mr Rolt objects to will be reconciled in due course and there is a more appropriate remedy, through the change of assessment process, for the issues Mr Rolt has raised. For the reasons discussed above, I decided to refuse the extension application.

Member F Hewson