Wilamovski and Child Support Registrar (Child support)
[2025] ARTA 947
•30 April 2025
Wilamovski and Child Support Registrar (Child support) [2025] ARTA 947 (30 April 2025)
Applicant/s: Mr Wilamovski
Respondent: Child Support Registrar
Tribunal Number: 2025/MC029526
Tribunal: General Member I Sheck
Place:Melbourne
Date:30 April 2025
Application: An extension application made on 19 March 2025 asking the Tribunal to consider the application for an eligible social services decision (first review) of the Child Support Registrar on 5 December 2024 despite the period for applying for review having ended.
Decision:The extension application is refused.
CATCHWORDS
CHILD SUPPORT – extension of time to apply to tribunal – objections officer’s decision affirming change of assessment – previous application withdrawn – physical and mental health – earning capacity – application may have merit – prejudice to other party – father paying less than assessed rate and now has significant arrears – any decision unlikely to result in overpayment – 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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.
Statement of Reasons
BACKGROUND
Mr Wilamowski and [Ms A] are the parents of [Child 1], born [August] 2015 and [Child 2], born [October] 2019. The case was registered with Services Australia – Child Support (Child Support) on 24 July 2020 and the liability collected by Child Support since that date.
On 28 January 2022 [Ms A] made an application to depart from the administrative assessment of child support (a process known as change of assessment) on the basis that Mr Wilamowski’s assessed income was not an accurate reflection of his ability to provide financial support for [the children]. On 24 May 2022 an officer of Child Support determined that grounds to depart from the administrative assessment had been met. The original decision maker’s decision increased Mr Wilamowski’s adjusted taxable income by $18,720 for the period 28 January 2022 to 31 December 2024. Mr Wilamowski objected to this decision. On 26 October 2022 an objections officer of Child Support varied the decision, such that Mr Wilamowski’s adjusted taxable income was increased by $20,800 for the period 28 January 2022 to 31 December 2024. On 1 November 2022 Mr Wilamowski lodged an application with the (then) Administrative Appeals Tribunal (AAT) against this decision. On 1 May 2023 Mr Wilamowski wrote to the AAT withdrawing his application.
Mr Wilamowski made applications for change of assessment in 2023 and 2024 and was notified by letters dated 10 November 2023 and 22 April 2024 that grounds for departure had not been met. [Ms A] made a further departure application on 26 April 2024 seeking an increase in the annual rate of child support, which at that point was assessed as $184. On 19 September 2024 a Child Support officer set the annual rate of child support payable by Mr Wilamowski at $2,609 (or $50 per week) for the period 26 April 2024 to 31 October 2026. On 14 October 2024 Mr Wilamowski lodged an objection to the original decision. On 5 December 2024 an objections officer of Child Support disallowed Mr Wilamowski’s objection and affirmed the decision of the original decision maker.
On 21 February 2025 Mr Wilamowski applied to the Administrative Review Tribunal (the ART) for an independent review of the objections officer’s decision. As this request for review was not lodged with the AAT within 28 days of Child Support’s decision, Mr Wilamowski was notified that he needed to make an application for an extension of time to request a review. Mr Wilamowski failed to make such an application and his application was subsequently dismissed on 13 March 2025. On 19 March 2025 Mr Wilamowski made a further application to the Tribunal for review and made an application for extension of time on the same day.
This matter was heard on 30 April 2025. The Tribunal had regard to the documents provided by Child Support as well as Mr Wilamowski’s application for extension of time. The issue to be considered is whether Mr Wilamowski should be granted an extension of time in which to lodge an application for review of Child Support’s decision.
LAW AND CONSIDERATION
The law relating to a person’s right to seek review of a decision of the Registrar is contained in section 18 of the Administrative Review Tribunal Act 2024 (the ART Act). This 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. 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 in accordance with 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.
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.
In making this decision, the Tribunal 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 6 factors to take into account when deciding whether to grant an extension of time.
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.
The 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;
the merits of the substantive application;
any prejudice to the other party including any difficulties that they will experience in providing evidence as a result of the delay;
wider prejudice to the general public;
fairness in granting an extension of time as between the applicant and other persons in a similar position; and
whether it is proper to grant the extension of time.
The reason for the delay and whether Mr Wilamowski has rested on his rights
in his application to the Tribunal Mr Wilamowski has stated in part that “they added $25,000 to my income.” It appears from this that Mr Wilamowski may be seeking review of the decision made in 2022, which actually added $20,800 to his adjusted taxable income as used in the assessment. If this is indeed the matter that Mr Wilamowski is seeking to have reviewed, he had that opportunity in 2023, where he had lodged his application for review within the stipulated time limit however chose to withdraw his appeal the day before it was scheduled to be heard by a member of the AAT.
If Mr Wilamowski is seeking review of the most recent Child Support decision, which sets the rate of child support at $50 a week from April 2024 to October 2026, Mr Wilamowski has stated in his application for extension of time “mental health, medical issues.” Mr Wilamowski has also provided a heavily redacted medical report dated 28 July 2023, which notes in part “[c]ould you please take his mental health into consideration when addressing his situation”. This report is nearly two years old and the Tribunal was not of the view that it provided any cogent reason as to why Mr Wilamowski was unable to make an application to the Tribunal within 28 days of receiving the objections officer’s notice of 5 December 2024. The Tribunal concludes that Mr Wilamowski has rested on his rights.
The merits of the application for review
[Ms A] has applied for departure from the administrative assessment on the ground that in the special circumstances of the case, the administrative assessment of child support results in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child because of either parent’s income, property, financial resources or earning capacity, per subparagraphs 117(2)(c)(ia) and (ib) of the Child Support (Assessment) Act 1989 (the Assessment Act). These grounds for departure are commonly referred to by Child Support as change of assessment Reason 8 or Reason 8A and Reason 8B.
Mr Wilamowski is the CEO of [an organisation] and [Ms A] has asserted that he receives personal benefits from this entity that are not reflected in his adjusted taxable income. [Ms A] has also requested in her April 2024 change of assessment application that Mr Wilamowski’s ability to support [the children] be based on his earning capacity, as he has chosen not to undertake full-time work. Mr Wilamowski has denied that either of these claims are true. Further investigation of both of these issues may result in a change to the annual rate of child support from that which is currently assessed by Child Support. Mr Wilamowski’s application may have merit.
Prejudice to other party / wider public and fairness
The principal objects of the Assessment Act are to ensure that children receive the financial support that their parents are able to provide; and that the periodic amounts payable by parents towards the maintenance of their children are paid on a regular and timely basis (subsection 3(1) of the Assessment Act). To that end it is important that decisions and reviews of administrative assessments are made on a timely basis so that necessary financial support can be provided to the children of the assessment. Any delay may cause hardship for them and the parent providing care and any delay may also mean a parent is placed in a position where they are required to pay back money to the paying parent if it is determined they have paid too much. If an extension of time is allowed, this may place the parent in receipt of child support in a difficult position and cause undue hardship if much later a different determination was made after an objection to an application was lodged past the 28-day period.
Parliament has seen fit to apply a 28-day time limit so that parents can act with certainty, children are adequately supported in accordance with the objects of the legislation, and that requests for review of Child Support decisions are made in a timely fashion. This ensures that all applicants are treated fairly and equally, and an extension of time is not to be automatically granted; doing so would create prejudice to [Ms A] as well as the wider public. In this case it appears that Mr Wilamowski has been paying far less that the assessed rate of child support to [Ms A] since 2023 and now has significant arrears. This means that it would be unlikely that any decision of the Tribunal would place [Ms A] in a position of overpayment.
The Tribunal has balanced all of the factors in this matter as referenced in the authorities quoted above. The central factors, in the Tribunal’s view, were the reason for and the length of the delay. The Tribunal was also concerned that Mr Wilamowski is seeking to re-ventilate his objection to the decision made in 2022, however this matter was dismissed in 2023 following his withdrawal and is not subject to further review by the Tribunal at this time. Mr Wilamowski’s current application to the Tribunal was out of time by over 2 months and he has not provided a clear reason for this delay, particularly given that an initial application was made in February 2025 but was incomplete. The Tribunal also had regard to any possible merit to the application including the information that Mr Wilamowski has already provided to Child Support. On balance, the combination of the relevant factors leads the Tribunal to conclude it is not proper to grant Mr Wilamowski an extension of time to object to the decision of the delegate given the particular circumstances of this matter.
DECISION
The extension application is refused.
Date(s) of hearing: Wednesday, 30 April 2025
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