Thirlwall and Child Support Registrar (Child support)

[2019] AATA 1200

Thirlwall and Child Support Registrar (Child support) [2019] AATA 1200 (14 March 2019)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2018/SC015246

APPLICANT:  Ms Thirlwall

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                14 March 2019

APPLICATION:

An extension application made on 29 October 2018 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 20 October 2017 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

CHILD SUPPORT – application for extension of time - no satisfactory explanation for the 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 29 October 2018 Ms Thirlwall lodged an application with the Administrative Appeals Tribunal (the Tribunal) for an extension of time for review of a child support decision made on 20 October 2017.  The matter was considered on 14 March 2019 on the papers (consistent with the Tribunal’s ‘Child Support Review Directions’).  The Tribunal had before it a bundle of papers provided by the Department of Human Services, Child Support (the Child Support Agency).

2. Ms Thirlwall and [Mr A] are the parents of [Child 1] (born June 2013) and [Mr A] is the parent liable to pay child support under the assessment.  Child support was first registered on 8 December 2016.

3. On 21 March 2017 [Mr A] applied for a change to the administrative assessment on the basis of the income, property and financial resources of Ms Thirlwall.  As a ground was not established, the Child Support Agency refused to change the assessment (the original decision). 

4. On 17 August 2017 [Mr A] objected to the original decision and on 20 October 2017 the Child Support Agency allowed the objection.  The original decision was set aside and the Child Support Agency made the decision to change the assessment so that for the period 1 October 2017 to 31 December 2018, the adjusted taxable income for Ms Thirlwall was set at $79,715 (the objection decision).  This was done to reflect the income, property and financial resources of Ms Thirlwall (the ground commonly known as Reason 8A).

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 Thirlwall’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 Thirlwall was advised about the outcome of the objection decision in a letter from the Child Support Agency dated 21 October 2017[1] and under provisions of the Evidence Act 1995, she was therefore taken to be served with written notice of this decision by 2 November 2017.  Given Ms Thirlwall lodged her application more than 28 days after she was served with notice, the Tribunal is satisfied that an extension of time was required.

   [1] The objection decision was dated 20 October 2017 and the letter notifying Ms Thirlwall of the objection decision was dated 21 October 2017.

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 Thirlwall’s application for an extension of time on 29 October 2018 in relation to the objection decision made on 20 October 2017 was approximately 333 days out of time.  It is noted that Ms Thirlwall submitted her application for review of the objection decision to the Tribunal on 17 October 2018.  To have been within the prescribed period, Ms Thirlwall’s application should have been made no later than 30 November 2017.

2. In seeking an extension of time, Ms Thirlwall states as the reasons for the delay that after receiving the objection decision from the Child Support Agency she was confused and devastated.  Ms Thirlwall said she heard about the Tribunal six to seven months later but this was the first opportunity she had to complete the application form and apply for a review.  Ms Thirlwall also said she did not know about the time restrictions.

3. The notification of the objection decision provided by the Child Support Agency dated 21 October 2017 outlines what to do if Ms Thirlwall disagreed with the decision.  This includes asking the Tribunal to undertake a review “within 28 days from the date you receive this letter”.  The words “within 28 days” are in bold which, in the view of the Tribunal, gives a clear indication of the importance of this time frame.

4. The Tribunal notes in evidence that on 1 November 2017, Ms Thirlwall contacted the Child Support Agency to discuss the outcome of the objection decision.  She was advised by a child support officer to get in touch with the Tribunal and the record of this discussion notes that Ms Thirlwall was going to make an online application.  During further conversations with the Child Support Agency on 21 June 2018 and 13 August 2018, Ms Thirlwall was again advised to contact the Tribunal if she wished to appeal the objection decision.  On the second of these occasions, the record of the discussion notes that Ms Thirlwall was unhappy with the objection decision but said she had not had time to pursue the matter further.

5. The Tribunal is not satisfied with the explanation provided by Ms Thirlwall for the lengthy delay in submitting her application for review of the objection decision.  As Ms Thirlwall was made aware she could appeal the objection decision but approximately 11 months elapsed before she chose to do so, the Tribunal finds she rested on her rights.

Merits of the application

1. Ms Thirlwall is seeking review of an objection decision which set her adjusted taxable income for the purposes of child support at $79,715.  The Child Support Agency determined that Ms Thirlwall received “substantial monetary support from various sources” which was not reflected in the child support assessment.

2. In making this decision the objections officer analysed Ms Thirlwall’s bank statements for the 12-month period from 1 March 2016 to 28 February 2017 which showed deposits supplementing her income in the vicinity of $34,057.  The objections officer calculated this would equate to a gross amount of $38,450 and added superannuation Ms Thirlwall had drawn on of $22,900 (gross) as well as Centrelink benefits of $17,365 to arrive at a total income for child support purposes of $79,715.

3. In her application to the Tribunal, Ms Thirlwall argues that her income was based on a document provided to the Child Support Agency by [Mr A] which, according to Ms Thirlwall, had previously been dismissed during court proceedings as an “inaccurate and inadmissible piece of evidence.”

4. Having reviewed the evidence available, the Tribunal finds the assumptions made by the Child Support Agency in relation to the income and financial resources available to Ms Thirlwall to be reasonable.

5. 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]).

6. The Tribunal finds that Ms Thirlwall’s application for review would not have good prospects of success on the ground of her income, property and financial resources.  The Tribunal therefore considers Ms Thirlwall’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.  Given Ms Thirlwall is approximately 333 days late in making her application, it would be reasonable for [Mr A] to consider the objection decision was final.  The Tribunal finds [Mr A] would be significantly disadvantaged if an extension of time to lodge an objection was granted.

2. The Tribunal must also consider whether or not there would be prejudice to the general public if an extension of time was granted.  Time limits for the review of administrative decisions should be observed as strictly as possible in order to assist the proper administration of government agencies.  There is a public expectation that there be a degree of certainty in relation to time limits, however, the law also allows for extensions of time.  In this case, the Tribunal believes there would be 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 Thirlwall 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 time frame.  It is clear the statutory time limit is to be enforced unless there are acceptable reasons for the delay.  The Tribunal finds that it would not be fair to others to grant Ms Thirlwall an extension of time to seek review of a decision in view of the statutory time frame which applies and the lack of merit to her application.

CONCLUSION

1. Ms Thirlwall has not provided a satisfactory explanation for the lengthy delay in applying for a review of the objection decision.  The Tribunal could also find little merit to her application based on the evidence available.  This weighs heavily against the granting of an extension of time.

1. Having carefully considered the various factors which it must take into account, the Tribunal finds it would not be proper to grant an extension of time to seek review of the objection decision made on 20 October 2017 in the circumstances of this case.  Accordingly, the extension application is refused.