Stenberg and Child Support Registrar (Child support)

[2019] AATA 1759

Stenberg and Child Support Registrar (Child support) [2019] AATA 1759 (7 May 2019)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2019/MC016014

APPLICANT:  Ms Stenberg

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                07 May 2019

APPLICATION:

An extension application made on 27 February 2019 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 22 January 2019 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

CHILD SUPPORT – application for extension of time - satisfactory explanation for the 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. On 27 February 2019 Ms Stenberg lodged an application with the Administrative Appeals Tribunal (the Tribunal) for an extension of time for review of a child support decision made on 22 January 2019.  The matter was considered on 7 May 2019 on the papers (consistent with the Tribunal’s ‘Child Support Review Directions’).  The Tribunal had before it a bundle of documents provided by the Department of Human Services, Child Support (the Child Support Agency).

2. Ms Stenberg and Mr [A] are the parents [Child 1] (born [specified]) and [Child 2] (born [specified]) and Mr [A] is the parent liable to pay child support under the assessment.  Child support was first registered on 28 November 2011.

3. On 29 August 2018 the Child Support Agency made the decision to accept an income estimate of $0 from Mr [A] to be used in the assessment from 29 August 2018 (the original decision).

4. On 25 October 2018 Ms Stenberg objected to this decision.  An extension of time was granted on 17 November 2018 and on 22 January 2019 the Child Support Agency disallowed the objection (the objection decision).

5. The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (the Act) and the Child Support (Assessment) Act 1989 (the Assessment Act).

6. The issue which arises in this case is whether or not to grant Ms Stenberg’s request for an extension of time to submit an application for review of a child support decision.

7. Part VIIA Division 2 of the Act sets out the procedures for applying to the Tribunal for a review of an objection decision made by the Child Support Agency, as well as applying for an extension of time for such a review in the event the application is not made within the prescribed period.

8. Subsection 29(2) of the Administrative Appeals Tribunal Act 1975 establishes that an application for review must be made within 28 days of being served with notice of the decision.

9. If the 28-day period to apply for review has ended, then a written application for an extension of time can be made under section 91 of the Act. Ms Stenberg was advised about the outcome of the objection decision by electronic means on 22 January 2019. Given Ms Stenberg lodged her application more than 28 days after she was served with notice, the Tribunal is satisfied that an extension of time was required.

10. Under subsection 92(1) of the Act, the Tribunal must consider and grant or refuse an extension application. In doing so, the Tribunal considers the guiding principles for the exercise of discretion to allow an extension of time as set out in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186. In that case, the Federal Court said an extension of time should not be granted unless satisfied it was proper to do so, noting that, in general, applications or proceedings commenced outside of a prescribed time limit will not be considered.

11. A review of other relevant authorities establishes that when considering whether or not to allow an extension of time, the Tribunal should consider and balance a range of factors.  These factors are a guide and are not exhaustive, but generally include:

    ·     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 they will experience in providing evidence as a result of the delay;

    ·     any prejudice to the general public; and

    ·     fairness in granting an extension of time.

Reasons for the delay

1. The Tribunal finds that Ms Stenberg’s application for an extension of time on 27 February 2019 in relation to the objection decision made on 22 January 2019 was approximately eight days out of time.

2. In seeking an extension of time Ms Stenberg states as the reasons for the delay that she was gathering evidence and waiting for the outcome of a family violence related intervention order (IVO) to be heard in court [in] February 2019.  Ms Stenberg said there was a history of family violence involving Mr [A] who also used financial control as a form of family violence.

3. Ms Stenberg added that she found it difficult to lodge her objection as she feared repercussions from Mr [A].  She told the Tribunal she did not want to provide further evidence if a copy was to be provided to Mr [A] as she thought this might provoke him.

4. The Tribunal notes that in her application to the Child Support Agency for an extension of time to object to the original decision made on 29 August 2018, Ms Stenberg also raised her fear of family violence.  The Tribunal accepts family violence has been a genuine and ongoing concern.  Ms Stenberg lodged her application for an extension of time to the Tribunal on 27 February 2019 which was less than a week after Ms Stenberg states the family violence matter was heard in court.  The Tribunal accepts Ms Stenberg acted with little delay once the IVO was granted.

5. The Tribunal finds Ms Stenberg’s reasons for the delay in applying for review to be reasonable in the circumstances of this case.

Merits of the application

1. Ms Stenberg is seeking review of an objection decision which affirmed a decision to accept a $0 estimate of income for Mr [A] from 29 August 2018.

2. Section 60 of the Assessment Act allows a parent to elect to use an estimate of their adjusted taxable income to apply from the day of the election to the end of the financial year (estimate period). The first estimate in the financial year must be no more than 85 per cent of the adjusted taxable income that applies when the parent makes the election. The parent making the estimate election must also estimate their adjusted taxable income from the start of the financial year to the beginning of the estimate period (year-to-date income). This allows the Child Support Agency to reconcile the estimate when information is available from the Australian Taxation Office for the relevant financial year.

3. An estimate election can be refused under certain circumstances. The Child Support Agency can refuse to accept an estimate election if satisfied the amount estimated for the partial year is less than the actual income for the partial year or the estimated year-to-date income amount is more than the actual income (section 63AA of the Assessment Act).

4. The Tribunal notes in evidence from the Child Support Agency that the estimate of income submitted by Mr [A] was the first in the financial year.  Mr [A]’s 2017-18 taxable income was $85,802.  Mr [A] also provided his year-to-date income of $6,692 for the period 1 July 2018 to 28 August 2018.

5. The Tribunal also notes that when making his estimate of income Mr [A] told the Child Support Agency he was not working due to an injury and subsequently provided a medical discharge summary from [an organisation] dated 18 August 2018 confirming this injury.   On 21 January 2019, as part of the objection decision process, the Child Support Agency also received confirmation from Mr [A]’s previous employer that he had not worked for them or received any income from them since 5 August 2018.

6. The Tribunal is satisfied that Mr [A]’s estimate of income of $0 was accurate at the time it was submitted and meets the relevant legislative requirements.

7. In her application to the Tribunal Ms Stenberg also pointed out that Mr [A] did not attend court [in] October 2018 and [in] November 2018 because he was working. Any later changes to Mr [A]’s income can be considered under the Assessment Act as an amended estimate. The Tribunal notes in evidence that Mr [A] has lodged further estimates.

8. The test of merit has alternatively been expressed as whether, were it to proceed, the application for review “would have good prospects of success” (Smith and Commissioner of Patents [2012] AATA 60 at [29]–[31]).

9. The Tribunal finds that Ms Stenberg’s application for review would not have good prospects of success as the decision to accept the $0 estimate from income from 29 August 2018 is correct.  The Tribunal therefore considers Ms Stenberg’s application has little merit.

Potential prejudice to Mr [A] and the wider public

1. Mr [A] should ordinarily be able to rely on the child support assessment once the period for objection has passed.  On the other hand the application made by Ms Stenberg to the Tribunal is only a few days out of time.  The Tribunal does not consider that Mr [A] would be disadvantaged if an extension of time to lodge an objection was granted.

2. Similarly, in this case, the Tribunal does not believe there would be significant prejudice to the general public if an extension of time to lodge an objection was granted.

Fairness in granting an extension of time as between Ms Stenberg and other persons in similar positions

1. The Child Support Agency notifies parties that they can seek a review of decisions with the Tribunal and they have 28 days within which to submit a request for such a review.  Most people comply within the 28-day timeframe.  The Tribunal finds that it would not be fair to others to grant Ms Stenberg an extension of time in view of the statutory time frame which applies and the lack of merit to her application.

CONCLUSION

1. Ms Stenberg has provided a satisfactory explanation for the short delay in applying for review of the objection decision.  While there would be little prejudice to Mr [A] or the wider public should an extension of time to lodge an extension be granted, the Tribunal could find no merit to her application.  This weighs heavily against the granting of an extension of time.

2. With little prospect of success should an extension of time be granted, the Tribunal finds it would not be proper to grant an extension of time to seek review of the objection decision made on 22 January 2019.  Accordingly the extension application is refused.