Thacker and Child Support Registrar (Child support)

[2021] AATA 1696

Thacker and Child Support Registrar (Child support) [2021] AATA 1696 (2 March 2021)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2020/SC020189 2020/SC020189

APPLICANT:  Mr Thacker

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                2 March 2021

APPLICATION:

An extension application made on 6 November 2020 asking the Administrative Appeals Tribunal (the AAT) to consider the application for AAT first review of a decision of the Child Support Registrar on 28 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 - no reasonable explanation for the delay – little merit – prejudice to the other parent due to delay – not in public interest – 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 Thacker and [Ms A] are the parents of [Child 1] born 2002, and [Child 2], born 2005. [Child 1] is in the primary care of Mr Thacker and [Child 2] is in the primary care of Mr Thacker and the regular care of [Ms A].

2. Mr Thacker seeks an extension of time to apply for review of an objection decision made by the Child Support Agency (the Agency) on 28 August 2020. This decision partially allowed his objection to an Agency decision dated 1 June 2020 determining Mr Thacker’s adjusted taxable income (ATI) as follows:

   ·From 20 February 2020 to 19 May 2021 at $85,795;

   ·From 20 May 2021 to 19 August 2022 at $87,819;

   ·From 20 August 2022 until a terminating event occurs for [Child 2] at $89,925; and

   ·From 20 February 2020 until a terminating event occurs for [Child 1] the costs of [Child 1] are to be reduced to $nil in the child support formula.

3. The objection decision set aside the Agency decision of 1 June 2020, and, in substitution, decided as follows:

   ·For the period 20 February 2020 to 4 June 2020, the annual rate of child support is reduced by half in recognition that [Child 1] is working full-time; and

   ·For the period 20 February 2020 until [Child 2] ceases to be an eligible child of the assessment, Mr Thacker’s income is set at $90,592.

4. The Tribunal considered Mr Thacker’s application on 2 March 2021. Mr Thacker attended the hearing via conference telephone and gave affirmed evidence. The Tribunal had before it documents provided by the Agency (Exhibit 1), and documents provided by Mr Thacker (Exhibit A).

5. At the conclusion of the hearing, the Tribunal directed Mr Thacker to provide a copy of the Agency’s letter of 8 December 2020 notifying him of its decision dated 4 December 2020 regarding his change of assessment application lodged on 16 September 2020. Mr Thacker complied with the Tribunal’s direction, and these documents were added to Mr Thacker’s documents, Exhibit A.

6. In reaching its decision, the Tribunal has considered the affirmed evidence given by Mr Thacker at the hearing, and the documents contained in Exhibits 1 and A.

7. The legislation relating to this application is contained in the Child Support (Registration and Collection) Act 1988 (the Registration Act) and the Administrative Appeals Tribunal Act 1975 (the Act). The relevant provisions are summarised below.

8. Mr Thacker confirmed at the hearing that the decision he is seeking the extension of time to apply for AAT first review is the Agency objection decision dated 28 August 2020, which he acknowledged he received online on 28 August 2020. Mr Thacker therefore had until on or about 24 September 2020 to lodge his application for first review of the Agency’s objection decision, but did not do so because he was waiting for his accountant to complete his 2019/20 financial year statements for his business, [Company 1], and related business and personal income tax returns, which he said were not available at the time of the objection process and not before the objections officer at the time the objection decision was made on 28 August 2020. He said that this material demonstrated that the objection decision of 28 August 2020 determining his ATI at $90,592 was not an accurate reflection of his actual income.

9. Section 91 of the Registration Act provides that, if the period for applying for AAT first review has ended, a person may make application for AAT first review that includes a written application (the extension application) requesting the AAT to consider the application for AAT first review despite the ending of the period for applying for review. The extension application must state the reasons for the person’s failure to apply for the review within the period.

10. The established cases indicate that the starting point 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 and Community Services [2004] FCA 297 per Spender J). Spender J quoted McHugh J in Gallo v Dawson (1990) 64 ALJR 459 (Gallo) as follows:

    In order to determine whether the rule [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…

11. In line with Wilcox J’s summary of cases in Hunter Valley Developments P/L v Cohen (1984) 3 FCR 344, the Tribunal proposes to consider the matters identified in Gallo 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 may flow from a successful application, including “the unsettling of other people… or of established practices”.

Explanation for the delay

1. During the course of the hearing, Mr Thacker gave evidence that he lodged an application for a change of assessment with the Agency on 16 September 2020. In October 2020, his accountant completed the 2019/20 financial year reports for his business and his income tax return for that financial year. Mr Thacker said he forwarded that material to the Agency in support of his change of assessment application lodged on 16 September 2020.

2. In the course of discussions with the Tribunal at the hearing, Mr Thacker mentioned that he had received a letter dated 8 December 2020 from the Agency, attaching a copy of its decision dated 4 December 2020 in response to his change of assessment application lodged on 16 September 2020. These documents were not included in the papers provided to the Tribunal by the Agency, or Mr Thacker, prior to the hearing. The Tribunal directed him to provide copies of those documents. Mr Thacker promptly complied with the Tribunal’s directions and copies of the Agency’s letter and its decision dated 4 December 2020 have been added to Mr Thacker’s documents, Exhibit A.

3. In its decision of 4 December 2020, the Agency’s decision-maker, DM Chandler refused Mr Thacker’s change of assessment application because no reason for a change had been established.

4. In her decision, DM Chandler analysed the additional financial information provided by Mr Thacker in relation to his [Company 1] business in considering his ground for objection to the determination of his ATI at $90,592 in the objection decision of 28 August 2020, and concluded, on the basis of Mr Thacker’s statement on his application that his net income was $72,432 per annum, that he had a gross income equating to $95,000, not dissimilar to the income determined in the objection decision of 28 August 2020.

5. The evidence Mr Thacker gave at the hearing suggested that, following receipt of the Agency’s objection decision of 28 August 2020, he elected to make a change of assessment application, based on the fresh evidence in his 2019/20 financial information, provided by his accountant in October 2020, which was not before the objections officer, rather than seek AAT first review of the objection decision.

6. The Tribunal is not satisfied that Mr Thacker has provided a reasonable explanation for his delay in lodging his application for AAT first review: the Tribunal considers it reasonable to conclude he would have had sufficient knowledge of his [Company 1] business and his other income resources for the 2019/20 financial year upon which to seek review of the objection decision, but instead, he elected to lodge a fresh change of assessment application.

Merits of the substantial application

1. The Tribunal is sceptical of Mr Thacker’s prospects of success in the event his application for an extension of time to seek review of the objection decision of 28 August 2020 were to be granted, particularly in light of the findings in the Agency’s decision of 4 December 2020.

2. The Tribunal also notes that Mr Thacker has objection rights with respect to the Agency’s decision of 4 December 2020, albeit he would need to apply for an extension of time to lodge an objection to that decision, and considers the interests of justice would be best served by his pursuing his objection rights arising from the Agency’s decision of 4 December 2020.

Prejudice to [Ms A]

1. The Tribunal considers that, in the circumstances outlined above, the second party, [Ms A], would be prejudiced by the granting of Mr Thacker’s application for extension of time to apply for AAT first review of the objection decision of 28 August 2020.

Public interest considerations

1. Parliament has seen fit to set a 28-day time limit for the lodgement of objections so parents (and the Agency) 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 Agency being performed in a timely fashion and in a manner that ensures all applicants are treated fairly and equally. Accordingly, the extension of time for an objection is not to be automatically granted.

2. The Tribunal has found that Mr Thacker does not have a reasonable explanation for the delay in applying to the AAT for review of the objection decision of 28 August 2020. The Tribunal has also found that his prospects of success in the substantial application are poor, and concludes that the interests of justice are best served by refusing to grant an extension of time.

Member J Thomson