WSNY and Child Support Registrar (Child support second review)

[2024] AATA 887

WSNY and Child Support Registrar (Child support second review) [2024] AATA 887 (29 April 2024)

Division:                  GENERAL DIVISION

File Number(s):      2023/1928

Re:WSNY

APPLICANT

AndChild Support Registrar

RESPONDENT

And: LXZH

OTHER PARTY

DECISION

Tribunal:Mr S Evans, Member

Date:29 April 2024

Place:    Sydney

The AAT1 decision to refuse the Applicant’s request for an extension of time for AAT review of the objection decision, is affirmed.

............................[sgd]...........................................

Mr S Evans, Member

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.

CATCHWORDS

CHILD SUPPORT - Request for extension of time to review decision – calculation of Child Support - whether application made within 28 days of notification of objection decision – whether reasonable in all circumstances to grant extension of time – extension of time refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Child Support (Assessment) Act 1989 (Cth)

Child Support (Registration and Collection) Act 1988 (Cth)

CASES

Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344

SECONDARY MATERIALS

Child Support (Registration and Collection) Regulations (2018)

REASONS FOR DECISION

Member S Evans

29 April 2024

INTRODUCTION   

1. WSNY (the Applicant) seeks review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) dated 9 March 2023.[1] The AAT1 refused the Applicant’s extension of time to seek review of a decision of a delegate of the respondent (the Registrar) dated 6 December 2022.[2]  By that decision, an objections officer varied the administrative assessment so that for the period of 31 October 2022 to 31 March 2024, the Applicant’s adjusted taxable income was set at $157,600 per annum (objection decision).[3] 

   [1] T-Documents, T1, p.2-15.

   [2] Ibid, T2, p.16-24.

   [3] Ibid, T4, p.181, 193.

   BACKGROUND

2. This matter concerns a dispute between separated parents about the Applicant’s financial resources for the purpose of calculating child support.

3. The Applicant (father) and the Other Party (mother) are separated parents of five children. The child support assessment which is the subject of this application relates to two of the children – Child C born in 2010 and Child O born in 2016.[4] 

   [4] Ibid, T4, p.201.

4. On 10 May 2022, the Applicant applied pursuant to s 98B of the Child Support (Assessment) Act 1989 (Cth) (Assessment Act) for a departure from the administrative assessment. On 28 July 2022, a delegate of the Registrar refused the Applicant’s application under s 98F of the Assessment Act on the basis that a ground for departure was not established (the original decision).[5]

   [5] Ibid, T54, p.474; T55, p.475-489.

5. On 23 August 2022, the Applicant objected to the original decision. On 6 December 2022, an objections officer allowed the objection in part, altering the assessment so that for the period of 31 October 2022 to 31 March 2024, the Applicant’s adjustable income was set at $157,600 per annum.[6] The Applicant was notified of the objection decision on 7 December 2022.[7]

   [6] Ibid, T4, p.188-189.

   [7] Ibid, T67, p.826-827.

6. Section 89 of the Child Support (Registration and Collection) Act 1988 (Collection Act) provides that certain decisions of the Registrar may be subject to review by the AAT1. Subsection 29(1)(d) and (2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provide that an application for review is required to be made within 28 days of being notified of the objection decision.

7. Subsection 29(2)(a) of the AAT Act establishes that an application must be made within 28 days of the being served with notice of the decision. The Tribunal may extend the time for lodging an application if it is ‘satisfied that it is reasonable in all circumstances to do so’ pursuant to subsection 29(7).

8. On 30 January 2023, the Applicant applied to the AAT1 for review of the objection decision.[8] As the application was made outside the prescribed timeframe of 28 days, the Applicant required an extension of time. On 9 March 2023 the AAT1 refused the application for an extension of time.[9] On 24 March 2023, the Applicant applied for review of the AAT1 decision by the General Division of the Tribunal.[10]

   [8] Ibid, T5, p.211-215.

   [9] Ibid, T2, p.16-24.

   [10] Ibid, T1, p.1-15.

   ISSUES TO BE DETERMINED

9. The issues to be determined by the Tribunal are:

   (i)whether the Applicant lodged the application for AAT first review outside the 28-day period from the date that he was notified of the objection decision; and if so,

   (ii)whether the Applicant should be granted an extension of time to lodge his application for review with the AAT1, pursuant to section 92 of the Collection Act.

   CONSIDERATION

   Was the application for AAT first review outside the prescribed timeframe?

10. The objection decision was sent by the Registrar to the Applicant via his myGov account on 7 December 2022.[11] The 28-day time limit to lodge an application for review with the AAT1 expired on 4 January 2023. The Applicant applied to the AAT1 for review of the objection decision on 30 January 2023. As such, I am satisfied that the application for review was made 26 days outside the statutory period.

    [11] Ibid, T67, p.826-827; T69, p.842; T71, p.844-846.

    Should an extension of time be granted?

11. If the period for applying for AAT first review has ended, section 91 of the Collection Act provides a person may apply for an extension of time to apply for AAT first review. Subsection 92(1) of the Collection Act provides that, the AAT1 must consider the extension application and generally, within 60 days, give reasons for granting or refusing to grant an extension of time application.

12. Section 96A of the Collection Act provides that an application can be made to the General Division of the Tribunal if a decision has been made under s 92 to refuse an extension of time.

13. When considering applications for an extension of time, the Tribunal has generally applied the principles outlined by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (Hunter Valley) which include:

    (a) It is a prima facie rule that proceedings commenced outside of the prescribed period will not be entertained, and the application for extension of time must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend the time;                   

    (b) a distinction is to be made between an applicant who has ‘rested on his rights’, and allowed the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;                   

    (c) any prejudice caused by the delay is a material factor militating against granting an extension;                   

    (d) the mere absence of prejudice is not enough to justify an extension; the ‘unsettling of other people’ or of established practices is ‘likely to prove fatal to the application’;                   

    (e) the merits of the substantial application are properly to be taken into account; and                   

    (f) ‘considerations of fairness as between the applicant and other persons’ in a similar position.

14. These principles are not intended to be applied mechanically and no one factor carries primacy over others. All of the circumstances of the case must be considered with the overriding consideration being whether it is ‘reasonable in all the circumstances’ to grant the extension.

    Reasons for the delay

15. The Applicant submits he first received notice of the objection decision on 7 January 2023 ‘under cover’ of a letter sent by the Registrar dated 5 January 2023 which he received via registered post. In a written submission dated 13 October 2023, the Applicant maintains that as he did not receive the objection decision until ‘at least 9 January 2023,’ his application for review dated 27 January 2023 and lodged on 30 January 2023 was within 28 days.[12]  

    [12] Applicant’s Written Submissions, 12 October 2023, p.1-6; Applicant’s AAT Second Review Arguments, undated, [21].

16. Regulation 31(a)(a)(iii) of the Child Support (Registration and Collection) Regulations (2018) provides that any notice or other communication by, or on behalf of the Registrar, may be served on a person by delivering it through means of electronic communication, if the person consented to receiving such notices or communications by way of electronic communication. On 23 March 2022, the Applicant contacted the Child Support Agency and linked his child support account to myGov.[13] The Registrar sent the objection decision to the Applicant via his myGov account on 7 December 2022.[14]

    [13] Respondent’s Statement of Facts, Issues and Contentions, 18 January 2024, Attachment A.

    [14] T-Documents, T67, p.826-827; T69, p.842.

17. Although he contends he lodged his application within 28 days, the Applicant has provided reasons for the delay in lodging his application in a document setting out the grounds for grant of an extension of time.[15] Notably he was required to raise five children after he and the Other Party separated. He was also required to attend to his financial affairs and other pressing demands on his time including the sale of his family home and then moving house.

    [15] Ibid, T1, p.4-9.

18. In November 2022, the Applicant was diagnosed with ‘dangerously high blood pressure,’ which required medication. He was advised by doctors that he was on the verge of requiring hospitalisation if his blood pressure did not normalise.  

19. The Applicant experienced connectivity and technical issues relating to his computer. He also claims to have been ‘bombarded’ by the Other Party with emails and text messages which he found stressful and upsetting. He maintains he was advised by the Registrar ‘on numerous historical occasions that the matter was being considered,’ and he would be notified should further information be required.

20. The Applicant states that the communication he had received from the Registrar  and the AAT has proven ‘highly conflicting and contradictory’. ‘Such uncertainty, misinformation and contradiction,’ has made it difficult for the Applicant to formulate responses and submit applications, which has resulted in delays.

21. The application was made 26 days outside the prescribed period, which is not insignificant. I accept that the Applicant was under some pressure and required to manage competing priorities. In circumstances where he disputes having received the decision before 7 January, it is unclear the extent to which he contends these factors contributed to the delay.

22. In any event, the factors he has cited are neither individually, or in combination, a compelling explanation for the delay and this factor weighs against granting an extension of time.

    Prejudice to other parties

23. The representative for the Registrar acknowledged there is no prejudice to the Registrar should the Applicant’s extension of time be granted.

24. The Other Party objects to the application. In a submission filed 14 December 2023, the Other Party sets out the prejudice that would be caused to her by the delay. She expressed her concern that a decision to allow the application will have a “detrimental impact” on her and the Applicant’s ability to parent their children.[16]

    [16] Written Submissions of Other Party, Undated, filed 14 December 2023.

25. The Other Party also stated there would be significant prejudice to her due to the cost and time associated with having the objection decision reviewed. She has found the review process immensely stressful, and she does not want the matter hanging over her head as it takes time away from her and the children. She considers that the matter ‘has been dealt with comprehensively’.[17]

    [17] Ibid.

26. I accept that granting an extension of time would significantly disadvantage the Other Party and that this factor weighs heavily against the application.

    Merits of the substantive application

27. The rate of child support payable by a liable parent is usually based on an administrative assessment calculated in accordance with the relevant formula under Part 5 of the Assessment Act.

28. Part 6A of the Assessment Act allows for a departure from the administrative assessment, a process commonly known as a ‘change of assessment’. Before making a change of assessment, the Registrar  must first find a ground for departure. These grounds are listed in the Assessment Act and the Applicant sought to establish a ground for departure focussing on his income, property, and financial resources or earning capacity (Reasons 8A and 8B). To establish ground for departure under Reasons 8A and 8B, the Applicant must satisfy the Tribunal that in the special circumstances of the case, the assessment of child support results unfair level of child support paid by him because of either parent’s income, property and financial resources.  

29. The Applicant argues that his income and financial resources were incorrectly calculated for the purposes of child support in the objection decision that varied his income to $157,600 per annum for the period 31 October 2022 to 31 March 2024. He has provided a detailed ‘grounds for review of financial assessment’ in which he sets out his reasons.[18]

    [18] T-Documents, T1, p.9-10.

30. The Applicant held, or holds an interest in 3 companies – Company A, Company C and Company J. The Applicant submits that Company A had only ‘nominal sales revenue’ and ‘almost negligible’ profit.[19] He has provided Profit and Loss Balance Sheets and company tax returns to support his assertions, which he states had been previously provided to the CSA and made available to the parties.[20]

    [19] Ibid.

    [20] Ibid; Applicant’s AAT Tender Bundle, T14 – T18, Filed 16 October 2023.

31. The Applicant sold his shareholding in Company A in June 2022. In addition to providing little to no income, he says the company had ‘enormous debts.’ He acknowledges having conducted some initial part-time transitional work to assist with the migration of operations, for which the company was paying him $1000 on a month-by-month basis with no fixed term.[21]

    [21]T-Documents, T1, p.9-10.

32. Regarding Company C, the Applicant contends that no revenue funds were received as of 5 October 2021, and from 31 January 2022 the company account had a zero or negative balance until it was closed. Consequently, the Applicant argues he could not have derived any funds or benefitted in any way from the company since 31 January 2022.[22] 

    [22] Ibid, p.10-11.

33. The Applicant states that Company J was never permitted to conduct business, never traded, and never received any funds. He states that personal income has been ‘nominal for many years as illustrated by [his] Tax Returns’ for the fiscal years 2019 to 2022. He writes that he has been in receipt of government benefits including Jobseeker Allowance since 2022. He has resided in rental accommodation since the sale of his family home with his sons covering most of his expenses.[23] 

    [23] Ibid, p.11; T4, p.425-426.

34. In the objection decision of 6 December 2022, the delegate sets out the evidence available to the decision maker. It is apparent that the delegate closely considered the claims that the Applicant made in relation to the ownership and profitability of the companies, bank statements and his income. The delegate was also aware that the Applicant was in receipt of income support. The delegate also considered the Other Party’s earning capacity, income, property, and financial resources.[24]

    [24] Ibid, T68, p.830-841.

35. Having reviewed the objection decision, the evidence considered and the Applicant’s submissions regarding a change of assessment, I am of the opinion that the application has limited prospects of success.

    CONCLUSION

36. The Applicant has not provided a satisfactory explanation for the delay in lodging his application. The prospects of the substantive application being successful appear slim given the information currently before the Tribunal, and the prejudice to the Other Party would be significant. Taking into account and weighing the relevant factors, I find it is not reasonable to extend the time to lodge the application for review.

    DECISION

37. The AAT1 decision to refuse the Applicant’s request for an extension of time for AAT review of the objection decision is affirmed.

I certify that the preceding (thirty - seven) paragraphs are a true copy of the reasons for the decision herein of

...............................[sgd].........................................

Associate

Dated: 29 April 2024  

Date(s) of hearing:	21 February 2024
Applicant:	In-person
Solicitor for the Respondent:	Mr A Taverniti, Sparke Helmore
Third Party:	In-person