Thornill and Child Support Registrar (Child support)

[2022] AATA 3096

Thornill and Child Support Registrar (Child support) [2022] AATA 3096 (15 July 2022)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2022/MC024061

APPLICANT:  Miss Thornill

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                15 July 2022

APPLICATION:

An extension application made on 10 June 2022 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 18 February 2022 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 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. On 24 January 2022, a delegate of the Child Support Registrar (the Registrar) accepted Ms Thornill request to opt out of Child Support collection from 11 January 2022 and to discharge arrears of $3,517.86.

1. On 11 February 2022 Ms Thornill lodged an objection to this decision on the basis that [Mr A] did not comply with their private agreement about child support and the arrears. On 18 February 2022 the objections officer disallowed Ms Thornill’s objection.

2. On 10 June 2022 Ms Thornill lodged a request for review, including an application for an extension of time with the Administrative Appeals Tribunal (the tribunal). Ms Thornill did not provide a written submission as to why she failed to request review of the decision within 28 days of receipt of the decision.

1. The issue to be considered is whether Ms Thornill should be granted an extension of time to lodge an application for review of the Registrar’s decision with the tribunal.

LAW AND CONSIDERATION

1. The law relating to a person’s right to seek review of a decision of the Registrar is contained in section 29 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). Subsection 29(2) of the AAT Act requires that a person must lodge a review request with this tribunal within 28 days after a notice of the decision of the Registrar is given to them.

1. Where the period for lodgement has ended, the person may send the application to the tribunal along with a request that the review be treated as if it was duly lodged, that is, that it was lodged within the allowed time (section 91 of the Child Support (Registration and Collection Act 1988 (the Act)). This is commonly referred to as an extension of time request. Section 92 of the Act then provides that the tribunal must consider the application for an extension of time, and grant or refuse that application in writing.

2. In this case, Ms Thornill was sent an electronic notification of the objections officer’s decision on 21 February 2022.  Ms Thornill lodged an application for review with the tribunal on 10 June 2022. As this request for a review of the decision was not lodged within 28 days with the tribunal, an application for an extension of time must now be considered.

3. In Brisbane South Regional Health Authority v Taylor [1996] HCA 25, the High Court, in dealing with an extension of time case and the general concept of time limitation periods, noted that while an extension of time is the exception to the general rule, there are legislative provisions which in the circumstances of the facts of an individual case may indicate that justice is served by the general rule being overruled.

1. In making this decision, I considered the guiding principles for the exercise of a discretion to allow an extension of time as set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (Hunter Valley Developments). In that case the Federal Court said that an extension of time should not be granted unless it was proper to do so, noting that in general, applications or proceedings commenced outside of a prescribed time limit will not be considered. The court also said that there must be an acceptable explanation for the delay and that it must be fair and equitable in the circumstances to extend time. The Federal Court identified six factors to take into account when deciding whether to grant an extension of time.

10.  In Brown v Commissioner of Taxation [1999] FCA 563, Hill J reviewed the principles set out in the Hunter Valley Developments case in the context of a person seeking an extension of time to lodge an objection against an assessment of income tax. In that case, Hill J commented that Wilcox J in Hunter Valley Developments never suggested he was laying down a series of principles to be applied in every case, and that the factors would serve as a guide and were not exhaustive. Further he commented that “Too slavish an adherence to them should, in my view, be avoided.” Hill J then sought to reshape the factors to be considered in the context of objecting to a tax assessment.

11.  The Administrative Appeals Tribunal has applied the principles set out in the Hunter Valley Developments case in Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42 (Mulheron). The authorities, Hunter Valley Developments and Mulheron, 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.

12.  Ms Thornill wrote in her submission for an extension of time she would provide further information about the reason for the delay. Ms Thornill did not provide further information about the reason for the delay, only that she wanted to continue with her application for review of the decision of the objections officer with the tribunal.

13.  The tribunal is satisfied that Ms Thornill was advised of her right to seek review with the tribunal in accordance with subsection 87(3) of the Act. The tribunal has determined that Ms Thornill was advised of her rights of review and has not provided an acceptable explanation for the delay, given she was aware of her review rights and was advised both in writing and verbally by the Department, of these rights to seek review with the tribunal. The tribunal finds that she has rested on these rights and actively did not seek review. The tribunal is unclear of the reason for this.

14.  The tribunal notes that there is a ‘cooling off’ period when a person opts out of child support collection and discharges arrears. On 12 January 2022 a pre-discharge letter was sent to Ms Thornill by the Department advising her she had 7 days to contact Child Support if “changed her mind”. This letter was recorded as ‘read’ by Ms Thornill on-line. As Ms Thornill made no further contact with the Department a decision was made to accept the opt out and discharge arrears request from her.

15.  The letter sent to Ms Thornill on 12 January 2022 advises her to “please consider this option carefully. Once we have processed your request to stop collecting any outstanding child support, you cannot later change your mind. However, you may still collect these outstanding amounts privately”.

16.  The tribunal is not satisfied that it would be fair and equitable in the circumstances to extend the time to lodge a request for review, in the absence of an acceptable explanation for the delay.

17.  The tribunal also notes that there is no merit to Ms Thornill’s application for review. This is because the application to the tribunal has been made after the child support assessment for [the child] has ended on 10 June 2022. Ms Thornill made an election under subsection 38A(1) of the Act that child support would no longer collect the payments, as she elected to opt out of the child support collect. Subsection 38A(3) the Act applies:

(3)  Within 28 days after receiving the election, the Registrar must:

(a)vary the particulars relating to the liability in the Child Support Register by specifying a day (not later than 60 days after the day on which the Registrar received the election) as the day on which the liability ceases to be enforceable under this Act (the terminating day); and

(b) if the payee, or the payee and payer jointly, have elected to have amounts payable under the liability in relation to the child support enforcement period that are unpaid on the terminating day also no longer enforced under this Act—vary the particulars so as to ensure that, in spite of section 30, those amounts cease to be debts due by the payer to the Commonwealth.

18.  The exists no administrative remedy for Ms Thornill and it is not proper given the circumstances for the tribunal to extend the application for review.