Thoene and Child Support Registrar (Child support)

[2020] AATA 1768

Thoene and Child Support Registrar (Child support) [2020] AATA 1768 (11 March 2020)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2019/PC017707

APPLICANT:  Mr Thoene

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                11 March 2020

APPLICATION:

An extension application made on 29 November 2019 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 23 August 2019 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 - little 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. Mr Thoene and [Ms A] are the parents of [Child 1] (born March 2004) and [Child 2] (born June 2008).  There has been a child support assessment in place since 6 July 2012 and Mr Thoene is the parent liable to pay child support under the assessment.

2. On 8 March 2019 the Child Support Agency made the decision to apply Mr Thoene’s 2017-18 adjusted taxable income of $23,306 from 8 March 2019 rather than the commencement of the child support period on 1 September 2018.  A 2017-18 provisional income of $133,360 was applied in the assessment from 1 September 2018 to 7 March 2019.

3. On 5 August 2019 Mr Thoene lodged an objection with the Child Support Agency to the 8 March 2019 decision and applied for an extension of time to object (the first extension of time application).

4. On 23 August 2019 the Child Support Agency refused to grant the extension of time application (the refusal decision) and Mr Thoene was notified of the refusal decision by electronic means on the same date.

5. On 28 October 2019 Mr Thoene lodged an application with the Administrative Appeals Tribunal (the Tribunal) for review of the refusal decision.  After advising Mr Thoene in writing that his application required an extension of time Mr Thoene subsequently submitted an application for an extension of time (the second extension application) on 29 November 2019.

6. The matter was considered on 11 March 2020 on the papers (consistent with the Tribunal’s ‘Child Support Review Directions’).  The Tribunal had before it a bundle of papers provided by the Child Support Agency.

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

8. The issue which arises in this case is whether or not to grant Mr Thoene’s request for an extension of time to review the refusal decision.

9. Part VIIA, Division 2 of the Act sets out the procedures for applying to the Tribunal for a review of various decisions 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.

10. Paragraph 29(1)(d) and  subsection 29(2) of the Administrative Appeals Tribunal Act 1975, establish that an application for review must be made within 28 days after being served with notice of the decision.

11. 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.  The Tribunal finds that Mr Thoene was advised by the Child Support Agency about the outcome of the refusal decision by electronic means on 23 August 2019.  Given Mr Thoene lodged his application with the Tribunal more than 28 days after he was served with notice of the refusal decision the Tribunal is satisfied that an extension of time was required.

12. 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 that 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.

13. 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 Mr Thoene’s application to the Tribunal on 29 November 2019 for an extension of time in relation to the refusal decision made on 23 August 2019, of which he was notified by electronic means, is approximately 70 days out of time.  It is noted that Mr Thoene submitted his application for review of the refusal decision to the Tribunal on 28 October 2019.  To have been within the prescribed period Mr Thoene’s application to the Tribunal should have been made no later than 20 September 2019.

2. In requesting an extension of time Mr Thoene states that he has tried several times to discuss with the Child Support Agency a course of action only to repeatedly be advised there was nothing he could do.  Mr Thoene said he then sought outside advice.

3. The 28-day period within which an application for review must be made is calculated starting on the day after the relevant notice of decision is ‘given to’ or ‘served on’ the person by the Child Support Agency. To determine when a notice is given to or served on a person by electronic communication, section 14A of the Electronic Transactions Act 1999 applies.  The notice served or given by electronic communication is received by the person when it ‘reaches’ that electronic address.  In this case the notice reached Mr Jacobs on 23 August 2019.

4. The notification of the refusal decision provided by the Child Support Agency dated 23 August 2019 outlines what to do if Mr Thoene disagreed with the decision.  This includes asking the Tribunal to undertake a review “within 28 days from the date you receive this letter.”  It also provides contact details for the Tribunal.

5. Given this correspondence and the nature of the first extension application it is unlikely Mr Thoene was unaware of the significance of failing to apply to the Tribunal for review within the prescribed 28 day period even though he may have been seeking independent advice.

6. The Tribunal finds the explanation provided by Mr Thoene for the delay in applying to the Tribunal for review of the refusal decision to be unsatisfactory.

Merits of the application

1. The Tribunal must also determine if the application for review has merit.  In doing so the Tribunal is required to consider whether or not another decision maker might believe it was proper to allow Mr Thoene an extension of time to object to the decision to apply his 2017-18 taxable income of $23,306 to the assessment from 8 March 2019 rather than the commencement of the child support period on 1 September 2018.

2. Mr Thoene told the Child Support Agency that he did not receive the letter advising him of the decision made on 8 March 2019 because he was travelling around Australia, had no access to technology and his phone was either turned off or not within range.

3. In considering this as a reason for objecting late, the Child Support Agency noted it was incumbent on Mr Thoene to provide an up-to-date address for the service of mail.  Section 35 of the Child Support (Registration and Collection) Regulations 2018 state that a person who changes address and fails to give to the Child Support Agency notice of the new address for service cannot use this as a defence in any proceedings instituted under the Act.  As a result the Child Support Agency was not satisfied with the explanation for the delay provided by Mr Thoene.

4. The Child Support Agency also considered the merits of Mr Thoene’s application for an extension of time to object.  Mr Thoene said he was objecting on the grounds that he was not working from 1 June 2018 to 7 March 2019 and hence the provisional 2017-18 income of $133,360 should not be applied to the child support assessment.

5. A parent’s adjusted taxable income is a component used to calculate their income for the purposes of child support.  For the child support period commencing 1 September 2018 the last relevant year of income (the last year of income under Australian taxation law that ended before the start of the child support period) is 2017-18.  Where a parent has not lodged their tax return the Child Support Agency may make a determination of the parent’s adjusted taxable income based on the income information available (section 58 of the Child Support (Assessment) Act 1989).  In this case, as the Child Support Agency did not receive Mr Thoene’s 2017-18 income information until 8 March 2019, a provisional income of $133,360 was used in the assessment from 1 September 2018 to 7 March 2019.

6. In certain circumstances where a parent is unable to provide income information within the required timeframe a retrospective determination of income can be made.  In considering the merits of the application the Child Support Agency also reviewed the evidence available and determined there were no such circumstances preventing Mr Thoene from providing his income information within the prescribed timeframe.  The Child Support Agency concluded that as a child support assessment had been in place since 2012 Mr Thoene would have been aware of his child support and taxation responsibilities.

7. Having considered the relevant factors the Child Support Agency determined there was no merit to Mr Thoene’s objection.

8. The Child Support Agency then considered the likelihood of any disadvantage to the other parent and found that as the objection had no prospect of success, allowing it to proceed would not cause prejudice to [Ms A].  The Child Support Agency concluded, however, that Mr Thoene’s request for an extension of time would disadvantage the general public.

9. Given the absence of merit and the fact there were no valid reasons for delay, the Child Support Agency made the decision to refuse to grant the extension of time.

10. The Tribunal is of the view that the Child Support Agency properly considered the various factors required before making the refusal decision.  Given this, even if the Tribunal did grant the second extension application and went on to hear the first extension application, it is unlikely the Tribunal would grant the first extension application, meaning there would be no need to consider Mr Thoene’s objection.

11. As it is unlikely the Tribunal would grant the first extension application if the matter was heard, the Tribunal therefore finds Mr Thoene’s application has little merit.

Potential prejudice to the other party and the wider public

1. Mr Thoene’s application to the Tribunal on 29 November 2019 is approximately 70 days late.  If the Tribunal were to hear the application there would be little prejudice to the Child Support Agency which would be the other party to the review.

2. 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 some prejudice to the general public if an extension of time was granted given the statutory timeframe which applies and the unsatisfactory reasons for the delay.

CONCLUSION

1. Mr Thoene has not provided a satisfactory reason for the delay in his second extension application and the Tribunal has found there is little merit to his argument.  In addition the Tribunal found there would be some prejudice to the wider public should the second extension application be granted.

2. In such circumstances the Tribunal is satisfied that, on balance, it is not proper to hear the application for review and the Tribunal will not grant the extension application.