Roth and Child Support Registrar (Child support)

[2022] AATA 642

Roth and Child Support Registrar (Child support) [2022] AATA 642 (25 February 2022)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2021/MC022872

APPLICANT:  Ms Roth

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                25 February 2022

APPLICATION:

An extension application made on 6 December 2021 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 29 October 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 of short delay – weak merit – some prejudice to the other parent and to general 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. 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 29 October 2021 Ms Roth was advised by letter of the decision to disallow her objection to an original decision made by Services Australia – Child Support (Services Australia) on 21 September 2021, to accept [Mr A]’s estimate of income for the period 21 September 2021 to 30 June 2022 (an annualised amount of $0).

4. On 6 December 2021 Ms Roth lodged an application for review with the AAT in relation to the objection decision made on 29 October 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 Ms Roth’s extension of time application 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 electronically to Ms Roth. As the notice was sent electronically, it is taken to be given on 29 October 2021. As the application was not lodged until 6 December 2021 it was about a week 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 29 October 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 Valle 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 Ms Roth stated she obtained information on 5 December 2021 which she says is relevant to the decision. This was less than a week after the 28 days for lodging a review had ended, and she lodged her application to the AAT the following day.  I was satisfied there is a reasonable explanation for the short delay in Ms Roth lodging the application for review.

11. I also considered the merit of the application. As noted above, Ms Roth is seeking review of a decision to accept [Mr A]’s estimate of his income for the 2021/22 year, annualised to an amount of $0 for the period from 21 September 2021. Ms Roth stated she became aware that [Mr A] purchased a property from his parents in May 2021, for which he took out a loan for $650,000, and the transfer of the property settled on 14 September 2021. Ms Roth said this shows that [Mr A]’s claim in September 2021 to have $0 income is false.

12. The documents from Services Australia indicate that [Mr Roth] estimated his income on 21 September 2021 after he was stood down the previous day due to a vaccine mandate affecting the [industry]. At the date of the objection officer’s decision [Mr A] had had his first vaccination.

13. 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.

14. Having regard to the information provided by Ms Roth and the documents from Services Australia, I concluded that the merit of Ms Roth’s application is weak, as evidence that [Mr A] had purchased a property and entered into a loan prior to lodging his estimate does not demonstrate that his estimate was not accurate.   

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

16. I note, also, that it is open to Ms Roth to apply for a change of assessment if she believes [Mr A] has financial resources that he has not declared. A change of assessment is 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 Ms Roth is seeking through her application in relation to [Mr A]’s estimate of his ATI is better addressed through a change of assessment process.

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 [Mr A] if Ms Roth’s application for an extension of time was granted, as he could be exposed to the possibility of a change in the child support assessment for a period for which he could reasonably have expected (the period for review of the objection decision having passed) the assessment to be final.

19.I considered there would be some prejudice to the general public if Ms Roth 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 there is a reasonable explanation for the short 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 Ms Roth objects to will be reconciled in due course and there is a more appropriate remedy, through the change of assessment process, if Ms Roth has evidence that the child support assessment is not fair due to [Mr A]’s income, property and financial resources. For the reasons discussed above, I decided to refuse the extension application.