YJDX and Child Support Registrar (Child support second review) - [2021] AATA 4295

YJDX and Child Support Registrar (Child support second review) [2021] AATA 4295 (18 November 2021)
Division:GENERAL DIVISION
File Number: 2020/4306
Re:YJDX
APPLICANT

AndChild Support Registrar
RESPONDENT

AndPLZS
OTHER PARTY

DECISION
Tribunal:Deputy President Boyle
Date:18 November 2021
Place:Perth

Pursuant to s 30(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) PLZS is made a party to the proceeding.
...[SGD].....................................................................
Deputy President Boyle
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
PRACTICE AND PROCEDURE – application to be made a party to a proceeding (AAT Act s 30(1A)) – whether Applicant’s ex-wife’s interests are affected by the decision under review – substantive matter relates to an objection to child support assessment – review of decision of AAT 1 to refuse the Applicant an extension of time to seek review of a decision of the Respondent – ex-wife made a party to the proceeding
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 29AC(2), 30(1), 30(1A), 37(1AAB), 43(1)
Child Support (Registration and Collection) Act 1988 (Cth) ss 81(1), 82(1), 91, 92, 96A
CASES
Carter and Australian Securities and Investments Commission [2020] AATA 809
Control Investments Pty Ltd v Australian Broadcasting Tribunal [1980] AATA 78; (1980) 50 FLR 1
Edwards v Australian Securities Commission & Ors [1997] FCA 38
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment [1984] FCA 186; (1984) 3 FCR 344
Johnson and Commissioner of Patents [2020] AATA 3983
United States Tobacco Company v Minister for Consumer Affairs and Ors [1988] FCA 317; (1988) 20 FCR 520
REASONS FOR DECISION
Deputy President Boyle
18 November 2021
THE APPLICATION

The Applicant’s substantive application 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.
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 Applicant’s former wife (the Other Party), who is the mother of the children the subject of the child support assessment has applied to become a party to these proceedings.
The Respondent (Registrar) considers it appropriate for the Other Party to be made a party to the proceedings.
THE ISSUE
The only issue to be determined at present is whether the Tribunal should order, pursuant to section 30(1A) of the Administrative Appeals Tribunal Act 1975 (AAT Act), that the Other Party be made a party to these proceedings.
BACKGROUND
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.[1] 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.[2]
[1] T34/271.
[2] 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.[3] No estimate was lodged by the Applicant. A child support assessment was re-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.[4]
[3] T33/236.
[4] 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.[5] 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.
[5] 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.[6]
[6] T30/218–21.
The Applicant lodged an application for review of the decision dated 16 March 2020 with AAT1 on 30 April 2020.[7] As the application to the Tribunal was made more than 28 days after notice of the decision was given, 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.[8] The Applicant was advised of the AAT 1 decision by letter dated 17 June 2020.
[7] T31/222–7.
[8] T2/7–13.
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 Registrar was notified of the application on 5 March 2021, and on 29 April 2021, pursuant to s 29AC(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (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 seeks to be made a party to these proceedings (the Other Party’s application). The Applicant opposes the Other Party’s application. As noted above, the Registrar considers it appropriate for the Tribunal to exercise its discretion and make the Other Party a party to these proceedings.
On 12 August 2021, I made directions for the Applicant, the Other Party and the Registrar to file written submissions, and for the Other Party’s application to be determined on the written submissions and evidence (primarily the T documents), without the need for a hearing.
LEGISLATION
Section 30(1) of the AAT Act provides:
(1)Subject to paragraph 42A(2)(b), the parties to a proceeding before the Tribunal for a review of a decision are:
(a) any person who, being entitled to do so, has duly applied to the Tribunal for a review of the decision;
(b) the person who made the decision;
(c) if the Attorney-General intervenes in the proceeding under section 30A—the Attorney-General; and
(d) any other person who has been made a party to the proceeding by the Tribunal on application by the person in accordance with subsection (1A).
Section 30(1A) of the AAT Act provides:
(1A)Where an application has been made by a person to the Tribunal for a review of a decision, any other person whose interests are affected by the decision may apply, in writing, to the Tribunal to be made a party to the proceeding, and the Tribunal may, in its discretion, by order, make that person a party to the proceeding.
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;
(c)…
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;
(b)…
(Original emphasis.)
THE PARTIES’ SUBMISSIONS
As noted above, the Applicant opposes the Other Party, his ex-wife, being made a party to the proceeding. By written submissions dated 26 August 2021, the Applicant submits:
·The present stage of the Tribunal process is an appeal against the AAT 1 decision not to extend the time for the AAT 1 review.
·He lodged the application on 9 May 2020.
·Having his ex-wife involved at this stage of proceeding is only going to slow the process of the AAT.
·The case currently deals with his reasons for not submitting documents in a “timely manner”, the documents that he is submitting have no relevance to his ex-wife. They are communications from his employer, relate to financial matters, and concern communications between his ex-wife and him.
·At the time the decision was made (on 16 March 2020), the Applicant was working at a mine site on nightshift, and his access to personal email on his personal computer was not as frequent as when he was on break.
·By the time his break came around he was engaged in an “ultimately futile” discussion via the app Our Family Wizard with his ex-wife related to the start date of the April school holidays and arrangements for those children that “choose” to spend time with him.
·The stress of dealing with his ex-wife’s inability to be reasonable about the split of spend-time arrangements combined with his work commitments, spending time with his children during the school holidays of April 2020 and his not wanting to overload the Australian Government’s MyGov website while people directly affected by COVID-19 accessed services, all led to him not checking for correspondence from the Child Support Agency (CSA) until he opened the correspondence from CSA on 30 April 2020 and downloaded it from the MyGov webmail facility, at or about 15:30 on that day.
·As this is the date that he “received” the decision, he contends that the application for review in the AAT 1 was made within the 28 days prescribed in the letter from the CSA.
·He insists that the work-related emails, notes, messages, or other communications related to his employer be kept strictly confidential, and that information related to his mental health treatments, financial matters, relationship matters, tax matters, “etc.” also be kept in strict confidence.
·Once this matter of “timely submission” is resolved, and the Applicant is arguing the actual case of “Robo-Debt on steroids”, it would be appropriate for the Other Party to join the matter, because the AAT needs to understand the disparity of treatment between the Applicant and the Other Party by CSA as it deals with information that the Other Party submitted to CSA.
The Registrar’s written submissions dated 16 September 2021 were to the following effect:
·In determining the joinder application, the Tribunal is required to consider:
owhether the Other Party is a person whose interests are affected by the decision; and
oif so, whether it is appropriate for the Tribunal to exercise its discretion to make the Other Party a party to this proceeding.
·The substantive decision[9] will only be reviewed if the matter is remitted back to the AAT 1 (i.e. if the Tribunal sets aside the decision under review and decides to grant an extension of time for the Applicant to apply to the AAT 1) and then remitted back to an objections officer (i.e. if the AAT 1 sets aside the decision under review and decides to grant an extension of time to lodge an objection).
·If this were to transpire, it may lead to a re-assessment of child support payable by the Applicant to the Other Party for the period 30 January 2015 to 30 September 2015 (annualised child support liability for this period is $36,454).
·In light of this, the Registrar considers that the Other Party is a person whose interests are affected by the AAT 1 decision. The Registrar notes the AAT 1 found that the Other Party would be prejudiced if the extension of time were granted.[10]
·The Registrar understands that it is the Applicant’s position that it is not appropriate for the Other Party to be made a party at this stage given the limited scope of the Tribunal’s consideration. The Applicant has conceded that it would be appropriate for the Other Party to be joined once the issue of “timely submission” is resolved, but suggests that while this is the only issue under consideration, it is not necessary or appropriate for the Other Party to be made a party to the proceedings.
·The Registrar submits that any decision made in relation to the child support assessment is likely to affect the Other Party’s interests. As the Other Party is a person whose interests are affected by the AAT 1 decision, the Registrar considers it is appropriate for the Tribunal in this matter to exercise its discretion and make an order, pursuant to s 30(1A) of the AAT Act.
[9] Which I assume is a reference to the decision of 16 March 2020 not to grant an extension of time to lodge an objection (see [10] above).
[10] T2/13.
By the Other Party’s application lodged with the Tribunal on 29 April 2021 (see [15] above), she submitted:
I have not received any other information, so I am unable to provide any specific reasons to become a party to the proceedings, only that the decision may affect my interests as indicated by the letter received.
Currently [YJDX] pays child support to me, along with additional payments for an outstanding debt accrued (all Child Support Collect). To the best of my knowledge, I would presume that the proceeding are in regards to either the current child support, or the outstanding debt which impacts me hugely.
The Other Party’s written submissions dated 9 September 2021 were to the following effect:
·The first assessment for Child Support (and Child Support collect) was in February 2015 and included all seven children of the marriage. Currently four children are still under 18 years of age and reside with the Other Party.
·The Applicant is assessed to pay child support to the Other Party, along with additional payments for an outstanding child support debt accrued over several years.
·Any proceedings which impact the Child Support Assessment, including options to review decisions, will ultimately impact the Other Party and the children of the marriage.
·In his submissions the Applicant states “… the documents that I am submitting have no relevance to [the Other Party], in that they are communications from my employer [omitted] to me, financial matters, and communications between [the Other Party] and myself.” Any communications between the Other Party and the Applicant would be relevant to the Other Party as they are being used to deal the Applicant’s failure to submit documents in a timely manner. Both parties involved in the communications should be able to put their case forward to provide a complete picture and validate any of the communications used as evidence.
·In various other submissions the Applicant refers to the Other Party’s conduct. Both parties should be able to provide information for the review.
·The Other Party being made a party would not delay the proceedings.
·By his submissions and his repeated reference to the Other Party, the Applicant has brought the Other Party directly into the matter and it would be appropriate for the Other Party to join the matter for the review.
CONSIDERATION
The first issue to consider is whether the Other Party comes within the scope of s 30(1A) of the AAT Act; is she a “person whose interests are affected by the decision” (see [18] above). The decision referred to in s 30(1A) is the decision of which the Applicant seeks review. In the present case, contrary to the Registrar’s submission (see [25] above, second bullet point), the Tribunal on review under s 96A will not, if the Applicant is successful, remit the matter back to AAT 1. Firstly, AAT 1 is not a decision-maker, it is a process or a decision level. Secondly, the Registrar’s contention misunderstands the role of the Tribunal in reviewing a decision. In Carter and Australian Securities and Investments Commission,[11] having referred to various authorities, I described the role of the Tribunal as follows (at [51]):
The above authorities make it clear that the role of the Tribunal is to do over again that which the original decision maker did and, on the evidence before the Tribunal at the time that it makes its decision, exercising the same discretions that the original decision maker had, make what it considers to be the correct or preferable decision.
(See also Johnson and Commissioner of Patents.[12])
[11] [2020] AATA 809.
[12] [2020] AATA 3983.
In the present case, the decision I am reviewing[13] is the AAT 1 decision not to grant an extension of time to make the application for review by the Tribunal. If the Tribunal at AAT 2, doing “over again that which the original decision maker did” (i.e. AAT 1), decides that an extension of time should be given for the Applicant to seek review by the Tribunal, then the Tribunal will set the AAT 1 decision aside and make a decision in substitution granting the extension of time.[14]
[13] Being the Tribunal at the AAT 2 level.
[14] AAT Act s 43(1).
The question therefore is whether the Other Party is a person whose interests are affected by the AAT 1 decision. That decision was not to grant an extension of time to have the Tribunal review the 16 March 2020 decision of the objections officer of SA to refuse the Applicant’s request for an extension of time to lodge an objection to child support assessment issued on 20 March 2015. The Other Party benefited from that assessment of 20 March 2015. The Applicant is seeking to overturn that assessment. His request in 2020 to lodge an objection to that assessment out of time, his application to the Tribunal for review of the refusal of that request to extend time, and this application to the AAT 2 level are all for the ultimate purpose of overturning that assessment. If the child support assessment of 2015 is overturned, obviously the Other Party’s interests would be affected. The proceedings in the Tribunal are steps along the way to the Applicant being able to overturn the child support assessment which will affect the Other Party’s interests.
The Full Court in Edwards v Australian Securities Commission & Ors,[15] in considering whether a person’s interests were affected, referred to its decision in United States Tobacco Company v Minister for Consumer Affairs and Ors[16] (at 527) and in particular to the following passage:
The term “interest” has long been an expression used in the law with respect to parties so as to require an involvement with a case greater than the concern of a person who is a mere intermeddler or busybody. Nevertheless, the criterion for standing prescribed by the Act is not a restrictive one. The broadest of technical terms has been selected. The necessary interest need not be a legal, proprietary, financial or other tangible interest. Neither need it be peculiar to the particular person.
[15] [1997] FCA 38.
[16] [1988] FCA 317; (1988) 20 FCR 520.

In Control Investments Pty Ltd v Australian Broadcasting Tribunal[17] at 8, Davies J said, in reference to s 30 of the AAT Act:
In their context in ss 27 and 30, the words "interests are affected" denote interests which a person has other than as a member of the general public and other than as a person merely holding a belief that a particular type of conduct should be prevented or a particular law observed. The interest affected need not be a legal interest nor need the person seeking joinder establish legal ownership of the interest. ...
...
However, a person seeking joinder must be able to identify a relevant interest which is his. In other contexts, dicta in cases have used the adjectives "real", "genuine" and "direct" to describe the relationship required between the decision and the interest. Sections 27(1) and 30(1) do not make use of adjectives but they do require that the applicant demonstrates genuine affection of an interest which attaches to him. The nature of the interest required in a particular case will be influenced by the subject matter and context of the decision under review.
[17] [1980] AATA 78; (1980) 50 FLR 1.
On any of the tests emerging from the above cases, the Other Party has interests that were affected by the AAT 1 decision (and the decisions that preceded that decision) and which would be affected by the AAT 2 decision by which, as explained above, the Tribunal will do over again that which was done in AAT 1. I am satisfied that the Other Party, as the Applicant’s ex-wife and a party affected by the child support assessment, comes within the operation of s 30(1A) of the AAT Act.
The next issue for determination is whether I should exercise the discretion not to grant the Other Party’s application to be joined as a party.
The first thing to note is that the Registrar considers it appropriate for the Other Party to be made a party to the proceeding. I take that into account.
As the Other Party pointed out in her submissions, the Applicant’s written submissions made multiple references to the conduct of the Other Party and correspondence with her. It is clear from the Applicant’s submissions that the Other Party’s conduct and correspondence is going to be relied on by the Applicant.
By his submission set out in the final bullet point in [24] above, the Applicant himself concedes that that it is appropriate for the Other Party to be joined to the proceedings. His contention seems to be that it is not appropriate for her to be joined at this stage where the matter in issue is whether he should be granted an extension of time. The Applicant’s own submissions setting out his reasons for not making the application within the prescribed time belie that contention.
Further, the principles which will be applied by the Tribunal in considering whether to grant an extension of time to the Applicant will be those set out in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment[18] which include consideration of prejudice that might be caused to any third party (in this case the Other Party) by the grant of any extension of time, the explanation for the delay and the merit of the substantive application. The Other Party is relevant to, and likely to be able to give evidence in relation to those issues.
[18] [1984] FCA 186; (1984) 3 FCR 344.
I am satisfied that there will be no undue delay to the resolution of the extension of time application by the Other Party being made a party to the proceedings and I find that it is appropriate to do so. There is no good reason why the discretion under s 30(1A) of the AAT Act should be exercised against the Other Party being made a party to the proceedings at this point.
DECISION
Pursuant to s 30(1A) of the AAT Act, the Other Party is made a party to the proceeding.

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: 18 November 2021