YJDX and Child Support Registrar (Child support second review) - [2023] AATA 2979

YJDX and Child Support Registrar (Child support second review) [2023] AATA 2979 (14 September 2023)
Division:GENERAL DIVISION
File Number(s): 2020/4306
Re:YJDX
APPLICANT

AndChild Support Registrar
RESPONDENT

AndPLZS
OTHER PARTY

DECISION
Tribunal:Deputy President Boyle
Date:14 September 2023
Place:Perth

The AAT 1 decision made on 12 June 2020 to refuse the Applicant’s request for an extension of time for AAT first review of the decision of the Child Support Registrar made on 16 March 2020 is affirmed.
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Deputy President Boyle
CATCHWORDS
PRACTICE AND PROCEDURE – child support – extension of time application – relevant considerations in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 – no prospect of success for substantive application –
AAT 1 decision not to grant extension of time affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 29AC(2), 30(1A), 37(1AAB)
Child Support (Registration and Collection) Act 1988 (Cth) s 81(1), 82(1), 91, 91(1), 92, 96A
CASES
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Brown v Federal Commissioner of Taxation [1999] FCA 563
Comcare v A’Hearn (1993) 45 FCR 441
DHLD and Executive Director, Social Security Appeals Tribunal [2010] AATA 377
Dix v Crimes Compensation Tribunal [1993] VicRp 21
Doyle v Chief of General Staff (1982) 42 ALR 283
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Lucic v Nolan (1982) 45 ALR 411
Wedesweiller v Cole [1983] FCA 94; (1983) 47 ALR 528
Windshuttle v Commissioner of Taxation [1993] FCA 553; (1993) 46 FCR 235; 93 ATC 4992; 27 ATR 88
YJDX and Child Support Registrar [2021] AATA 4295
Zizza v Federal Commissioner of Taxation [1999] FCA 848
SECONDARY MATERIALS
Pearce, Dennis, Administrative Appeals Tribunal (5th ed, LexisNexis Butterworths, 2020)
REASONS FOR DECISION
Deputy President Boyle
14 September 2023
THE APPLICATION

The Applicant seeks review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT 1) made on 12 June 2020.[1]
[1] T2.
By AAT1 the Tribunal refused to grant the Applicant an extension of time in which to seek review of a decision made by an objections officer of Services Australia (SA) on 16 March 2020 to refuse an extension of time to lodge an objection to a Child Support Assessment decision made on 20 March 2015.
The Other Party is the Applicant’s former wife who is the mother of the children the subject of the Child Support Assessment the subject of these proceedings. She was joined as a party pursuant to s 30(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) by order made on 18 November 2021.[2]
[2] YJDX and Child Support Registrar [2021] AATA 4295 (YJDX No.1).
BACKGROUND
The background to this application was set out in YJDX No.1 as follows.
The Applicant and the Other Party are the separated parents of seven children born between 1999 and 2009.
A Child Support Assessment was first registered with respect to the children on 30 January 2015.[3] The Child Support Assessment for the period from 30 January 2015 to 14 October 2015, which required the Applicant to pay $36,454 per annum, was calculated with reference to the Applicant’s 2014 taxable income of $257,682.[4]
[3] T34/271.
[4] T34/272.
In March 2015, SA spoke to the Applicant about lodging an estimate of income as he had advised that he was not earning an income and was about to receive a redundancy payment.[5] No estimate was lodged by the Applicant. A Child Support Assessment was issued on 20 March 2015 for the period 16 March 2015 to 14 October 2015 which used the same adjusted taxable income amount of $257,682 for the Applicant.[6]
[5] T33/236.
[6] T5/43–5.
On 17 February 2020, the Applicant sought to object to the use of the adjusted taxable income amount of $257,682 in the Child Support Assessment issued on 20 March 2015.[7] As this was more than 28 days after the decision dated 20 March 2015, the Applicant was required to seek an extension of time to lodge an objection.
[7] T29/212–14.
By a decision dated 16 March 2020, an objections officer of SA refused the Applicant’s request for an extension of time to lodge an objection.[8]
[8] T30/218–21.
The Applicant lodged an application for review of the objections officer’s decision dated 16 March 2020 with AAT 1 on 30 April 2020.[9] As the application to the Tribunal was made more than 28 days after notice of the decision was given to the Applicant, the Applicant required an extension of time under s 91 of the Child Support (Registration and Collection) Act 1988 (Cth) (Collection Act). On 12 June 2020, AAT 1 refused the Applicant’s request for an extension of time.[10] The Applicant was advised of the AAT 1 decision by letter dated 17 June 2020.[11]
[9] T31/222–7.
[10] T2/7.
[11] T1/2.
By application lodged with the Tribunal on 15 July 2020, the Applicant seeks review of the AAT 1 decision under s 96A of the Collection Act. The Applicant did not pay the Tribunal lodgement fee for the application until 27 January 2021, at which time the application could proceed.
The Respondent (Registrar) was notified of the application on 5 March 2021, and on 29 April 2021, pursuant to s 29AC(2) of the AAT Act, the Tribunal provided written notice to the Other Party regarding her right to be made a party to the proceedings.
On 29 March 2021, pursuant to s 37(1AAB) of the AAT Act, the Registrar lodged with the Tribunal the documents in the Registrar’s possession which are relevant to the decision before the Tribunal (T documents).
By application lodged with the Tribunal on 29 April 2021, the Other Party sought to be made a party to these proceedings and by order made on 18 November 2021, she was made a party to these proceedings (see [3] above).
THE ISSUE
The issue for determination is whether the Applicant should be granted an extension of time pursuant to s 91(1) of the Collection Act to make an application to the Tribunal for the review of the decision of the review officer of SA dated 16 March 2020 to refuse the Applicant’s request for an extension of time to lodge an objection (see [9] and [10] above).
LEGISLATION
Section 81(1) of the Collection Act relevantly provides:
(1) An objection to a decision ... must be lodged by a person within 28 days after a notice of the decision is served on the person.
Section 82(1) of the Collection Act provides:
(1) A person may lodge an objection under this Part after the period for lodging such an objection has ended if, at the time of lodging the objection or a later time, the person applies to the Registrar to consider the objection despite the period ending.
Section 91 of the Collection Act provides:
(1) If the period for applying for AAT first review has ended, a person may make an application for AAT first review that includes a written application (the extension application) requesting the AAT to consider the application for AAT first review despite the ending of the period.
(2) The extension application must state the reasons for the person's failure to apply for the review within the period.
(3) Subsections 29(7) to (10) of the AAT Act do not apply in relation to extensions of time for the making of applications for AAT first review.
(Original emphasis.)
Section 92 of the Collection Act relevantly provides:
(1) If a person makes an extension application under section 91 in relation to an application for AAT first review, the AAT must:
(a) consider the extension application; and
(b) within 60 days after the extension application is received by the AAT, grant or refuse the extension application;
...
Section 96A of the Collection Act relevantly provides:
An application may be made to the AAT for review (AAT second review) of the following decisions of the AAT:
(a) a decision under section 92 to refuse an extension application;
...
(Original emphasis.)
THE HEARING
The application was heard by telephone on 20 April 2023. The Applicant appeared on his own behalf, as did the Other Party. The Registrar was represented by Ms Hinwood.
CONSIDERATION
The case most often cited as setting out the relevant considerations for an extension of time to make an application for review is Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment.[12] As noted by Dennis Pearce in Administrative Appeals Tribunal (LexisNexis, 5th ed, 2020) at [6.19]:
The factors enunciated by Wilcox J in [Hunter Valley] form the basis for consideration of most applications and ... will almost certainly continue to be the starting point of most decisions.
[12] (1984) 3 FCR 344.
The Tribunal considers the principles set out in Hunter Valley and the cases that have followed that approach to be applicable to this matter (see also: Brown v Federal Commissioner of Taxation[13]).
[13] [1999] FCA 563.
In Hunter Valley, Wilcox J at [348] pointed out that “[t]he prescribed period of twenty-eight days is not to be ignored... Indeed, it is the prima facie rule that proceedings commenced outside the period will not be entertained...”. In Brown, Hill J stated, at [59], that in the taxation context, the Tribunal should be “... guided by what the justice of the case requires”. In determining the question of whether an extension of time should be granted, the Tribunal should weigh together all relevant factors.[14]
[14] Zizza v Federal Commissioner of Taxation [1999] FCA 848 (per Katz J).
The authorities establish that a range of considerations must be taken into account when exercising the discretion to extend time for an application to be made. Those considerations include:
(a)It is a prima facie rule that proceedings commenced outside the prescribed period will not be entertained.[15]
(b)It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is, however, to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition.[16]
(c)Action taken by the applicant other than by making an application to the court (Tribunal) is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised.[17]
(d)Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension.[18]
(e)The mere absence of prejudice is not enough to justify the grant of an extension.[19]
(f)The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted.[20]
(g)Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s (or tribunal’s) discretion.[21]
[15] Lucic v Nolan (1982) 45 ALR 411 at 416.
[16] Comcare v A’Hearn (1993) 45 FCR 441; Dix v Crimes Compensation Tribunal [1993] VicRp 21.
[17] Doyle v Chief of General Staff (1982) 42 ALR 283 at 287.
[18] Doyle at 287; Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541.
[19] Lucic at 416.
[20] Ibid at 417.
[21] Wedesweiller v Cole [1983] FCA 94; (1983) 47 ALR 528.
There is a thorough and helpful review of the relevant authorities by Deputy President Forgie in DHLD and Executive Director, Social Security Appeals Tribunal.[22]
[22] [2010] AATA 377 at paras [11] and [37] to [49].
Von Doussa J in Windshuttle v Commissioner of Taxation held that:[23]
The issue which the AAT was required to consider was whether, for the purposes of the exercise of the discretion under s 188A [of the Income Tax Assessment Act 1936], the applicant’s case had prospects of success, and what those prospects were. It is sufficient for that purpose, if the parties chose to so argue their case, to merely identify the factual assertions which the applicant made in the objection, and then to consider whether the application of the law to those assertions would bring about the result for which the applicant contends.
[23] [1993] FCA 553; (1993) 46 FCR 235; 93 ATC 4992; 27 ATR 88.
The Court in Brown adopted Von Doussa J’s comments and held:[24]
I do not wish to be taken as saying that the merits of the objection are totally irrelevant. For present purposes I am prepared to accept the view of von Doussa J in Windshuttle [v Deputy Federal Commissioner of Taxation (1993) 93 ATC 4992] that an applicant should show that he or she has an arguable case. No doubt if the objection on the face of it is one which is frivolous or bound to fail as a matter of law it would be a futility to permit an extension of time to enable it to be considered. But this points to quite a low threshold. What is involved is whether the objection on its face discloses a case which is arguable, …
[24] Brown at [56].
Normally in considering an application for an extension of time within which to make an application, the Tribunal would consider each of the factors identified by Wilcox J in Hunter Valley as set out in [25] above, however, a finding that that substantive application sought to be brought before the Tribunal has no prospects of success would be determinative of the application for an extension of time. As noted by the Court in Brown, it would be futile to permit an extension of time if the substantive application is bound to fail. For reasons that emerged at the hearing, that is the case in the present application.
The Applicant’s case, as set out in his Statement of Facts, Issues and Contentions (Applicant’s SFIC) is, relevantly:
3.5… On 16 February 2015, a child support assessment notice was issued for the period 30 January 2015 to 14 October 2015 which shows an adjusted taxable income (ATI) for the Applicant of $257,682. The notice shows that the ATI was based on the Applicant’s 2014 taxable income (T34/272).
3.6On 20 March 2015, the Agency spoke to the Applicant about lodging an estimate of income as he had advised that he was not earning an income and was about to receive a redundancy payment (T33/236). No estimate was lodged by the Applicant. A child support assessment notice was re-issued on 20 March 2015 for the period 30 January 2015 to 14 October 2015. The same particulars as entered in the 16 February 2015 notice were included in the 20 March 2015 notice (T5/43 - 45). …
3.7On 17 February 2020, the Applicant objected to the use of the adjusted taxable income amount of $257,682 in the child support assessment issued on 20 March 2015 (T29/212). As this was more than 28 days after the decision dated 20 March 2015, the Applicant was required to seek an extension of time to lodge an objection.
The essence of the Applicant’s objection is to the use of the adjusted taxable income amount of $257,682, taken from the Applicant’s 2014 tax return, used in the Child Support Assessment issued on 20 March 2015 for the periods 16 March 2015 to 14 October 2015[25] and 15 October 2015 to 29 April 2016.[26] The Applicant’s evidence was that:[27]
… I’m objecting to everything post-March 2015, any income until - essentially, I started reworking in 2017 is hypothetical at best…
[25] T5/43-5.
[26] T5/46-8.
[27] Transcript at 11.
It is important to note that the objection that the Applicant lodged (out of time) was only to the Child Support Assessment issued on 20 March 2015 for the several periods identified in [30] above.
At the hearing I took the Applicant through that Child Support Assessments[28] and to the several Child Support Assessments issued for subsequent periods, and a partial adjustment for the period 1 October 2015 to 31 December 2016.[29] The later assessments were also based on a taxable income of $257,682, taken from the Applicant’s 2014 tax return, or, for some of the later periods, $260,774, taken from that tax return amount adjusted.[30] The Child Support Assessments issued up until the assessment issued on 19 November 2016, which was for the period from 1 January 2017 to 31 March 2018,[31] used either $257,682 or $260,774 as the Applicant’s taxable income. The Child Support Assessment issued on 19 November 2016 for the period from 1 January 2017 to 31 March 2018 was based on the Applicant having a taxable income of $418,359 for the period 15 October 2015 to 31 December 2016 and a provisional taxable income of $424,634 for the period 1 January 2017 to 31 March 2018.[32] The Applicant has not sought to lodge any objection to those assessments.
[28] T5.
[29] T8.
[30] T9.
[31] T15.
[32] T15/92-93.
I asked the Applicant at the hearing why there had been an increase in his taxable income in those later Child Support Assessments and his evidence was:[33]
APPLICANT:   Sir, I didn’t lodge my 2014/15 tax return until – and I – it’s a stretch to recollect exactly when, but that would’ve been the 14/15 taxable – that would include that amount of – that made my total $418,000 was my taxable income.
…
DEPUTY PRESIDENT:         It’s a very specific figure?
APPLICANT:   Yes. Yes. That would’ve been from my 2014/15 tax return, and I think I must have only lodged that in or about – I must have lodged it in – in or about July 2016.
[33] Transcript at 13-4.
As I pointed out to the Applicant, the obvious problem with his substantive application objecting to the 20 March 2015 Child Support Assessment, is that rather than being based on too high a taxable income, it was, as it turned out, based on a lower taxable income figure than declared in his 2015 tax return.
As noted above, the objection that the Applicant lodged, which is the subject of the substantive application, related only to the 20 March 2015 assessment. The Applicant’s own tax return shows that that assessment was based on a lower taxable income than his actual taxable income as subsequently declared.
I also note that, as the Applicant conceded, he was contacted by SA before the Child Support Assessment was issued on 20 March 2015 about providing an estimate of income for the purposes of the assessments. He failed to do so (Applicant’s SFIC at 3.6 see [30] above). In the absence of him doing so, the SA had little option but to carry forward the estimate of his income based on his then most recent tax return, the 2014 return. The relevant statutory regime and the Applicant’s dealings with SA are set out at [27] to [33] of the AAT 1 decision.[34] The Applicant made no objection to that assessment for some five years. He was, accordingly, largely the author of his own misfortune by, firstly, failing to provide an estimate of his income for the relevant period prior to the issue of the Child Support Assessment in March 2015 and, secondly, by not raising any objection for five years. In any event, as his belatedly lodged tax return for the period relevant to the Child Support Assessment in issue demonstrated, the assessment was not based on an excessive taxable income estimate.
[34] T2.
Given the above, there is no reasonable prospect that the Applicant would succeed in the objection that he makes to the Child Support Assessment issued on 20 March 2015.
The substantive application that the Applicant seeks to make to the Tribunal is for the review of the decision dated 16 March 2020 of the objections officer of SA refusing the Applicant’s request for an extension of time to lodge an objection. Given that the objection which the Applicant seeks to make to the assessment issued on 20 March 2015 has no prospects of success, it would be futile to review the objection officer’s decision to refuse the application for an extension of time to lodge the objection. In those circumstances, it would be equally futile to grant an extension of time for the Applicant to lodge an application to this Tribunal to review the objection officer’s decision.
DECISION

The AAT 1 decision made on 12 June 2020 to refuse the Applicant’s request for an extension of time for AAT first review of the decision of the Child Support Registrar made on 16 March 2020 is affirmed.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

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Associate
Dated: 14 September 2023

Date of hearing: 20 April 2023

Applicant:
Self-represented

Respondent:
Joined Party:

Ms L Hinwood, Sparke Helmore Lawyers

Self-represented