Zaffino and Child Support Registrar (Child support)

[2024] AATA 3587

Zaffino and Child Support Registrar (Child support) [2024] AATA 3587 (14 August 2024)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2024/BC028144

APPLICANT:  Dr Zaffino

OTHER PARTY:  Child Support Registrar

TRIBUNAL:Senior Member T Hamilton-Noy

DECISION DATE:  14 August 2024

EXTENSION APPLICATION:

An application made on 27 June 2024, asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 3 January 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 – application made significantly more than 28 days after objection decision – acceptable explanation for delay – overseas at time of decision, and returned soon after – contact with Child Support before and after travel – prejudice to mother and public – application refused

BACKGROUND

1. Dr Zaffino is a separated parent of two children and is the payer in a child support case registered with Services Australia (Child Support).

2. On 13 April 2023, Dr Zaffino’s former partner applied to Child Support for a departure determination on the basis of the special needs of the children (called “Reason 2” by Child Support), the schooling of the children (called “Reason 3” by Child Support), the child care costs for one of the children (called “Reason 6” by Child Support), her necessary expenses for self-support (called “Reason 7” by Child Support), the parents’ levels of income, property and financial resources (called “Reason 8A” by Child Support) and Dr Zaffino’s earning capacity (called “Reason 8B” by Child Support).  At the time of the departure application, the administrative assessment of child support provided for Dr Zaffino to pay $14,226 per annum, based on his 2021/22 adjusted taxable income of $88,567 and his former partner’s 2021/22 adjusted taxable income of $6,160.

3. On 9 August 2023, an employee of Child Support found that there were grounds to depart from the administrative assessment of child support and decided to make a departure determination that:

   ·For the period 1 May 2023 to 30 April 2024, Dr Zaffino’s adjusted taxable income is varied to $142,400;

   ·For the period 1 May 2023 to 30 June 2023, the annual rate of child support payable by Dr Zaffino is reduced by $1,757; and

   ·For the period 1 July 2023 to 30 April 2024, the annual rate of child support payable by Dr Zaffino is increased by $2,017.

4. Dr Zaffino lodged an objection to that decision on 1 September 2023.

5. On 3 January 2024, an objections officer of Child Support allowed the objection and decided to make a departure determination that:

   ·For the period 1 May 2023 to 8 August 2023, Dr Zaffino’s adjusted taxable income is varied to $185,700;

   ·For the period 1 May 2023 to 8 August 2023, the annual rate of child support payable by Dr Zaffino is increased by $1,990;

   ·For the period 9 August 2023 to 31 December 2023, the annual rate of child support payable by Dr Zaffino is varied to $5,254;

   ·For the period 1 January 2024 to 31 December 2024, Dr Zaffino’s adjusted taxable income is varied to $185,700; and

   ·For the period 1 January 2024 to 31 December 2024, the annual rate of child support payable by Dr Zaffino is increased by $5,248.

6. Dr Zaffino was notified of the objections officer’s decision by letter dated 4 January 2024.  The letter notified Dr Zaffino that, if he thought the decision was wrong, he could ask the AAT to review the decision, but must do so within 28 days from the date he received the letter.

7. On 27 June 2024, Dr Zaffino made an application to the Administrative Appeals Tribunal for an independent review of Child Support’s decision.  As the request for review was not lodged within 28 days of the Child Support decision, an application for an extension of time was also lodged.

8. This matter has been determined on the papers.  At the time of its decision, the Tribunal had regard to the documents provided by Child Support (folios 1 to 333) and to Dr Zaffino’s written reasons for the extension of time application.

CONSIDERATION

1. The legislation relevant to this decision is contained in the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act) and the Administrative Appeals Tribunal Act 1975 (the AAT Act). The issue for the Tribunal is whether Dr Zaffino should be granted an extension of time to lodge an application for review of the Child Support decision dated 3 January 2024.

2. Section 89 of the Registration and Collection Act allows an application for AAT first review to be made to an objections decision, by a person who objected to the original decision. Section 29 of the AAT Act allows for an application to be made to the Tribunal for review of a decision but requires, at subsection 29(2), that the application must be made within 28 days of the day on which the decision was given to the applicant. The effect of the above provisions is that, while Dr Zaffino is a person who is able to make an application to this Tribunal for a review of the decision dated 3 January 2024, he was required to do so within 28 days of being notified of the decision.

3. The decision in this matter was sent by post by letter dated 4 January 2024 (as indicated in folio 25 of the Child Support documents). Section 163 of the Evidence Act 1995 (the Evidence Act) provides that a letter from a Commonwealth agency addressed to a person at a specified address is presumed to have been sent on the fifth business date after the date of the letter. Section 160 of the Evidence Act then provides that the letter sent by post is presumed to have been received on the seventh working day after having been posted. Based on these sections, the letter sent to Dr Zaffino is presumed to have been received 12 business days after the date of the letter, or on 22 January 2024. Dr Zaffino was 157 days out of time for lodging an application to this Tribunal.

4. Section 91 of the Registration and Collection Act allows a person applying for AAT first review to make an application for an extension of time for the Tribunal to consider the application, despite the ending of the 28-day period. This must be done in writing and must state the reasons for the person’s failure to apply for the review within the period. Section 92 of the Registration and Collection Act requires the Tribunal to consider the application and to grant or refuse the application within 60 days of the application having been made. Subsection 92(3) of the Registration and Collection Act requires that written notice of the decision to grant or refuse the application must be given to the person who made the extension of time application.

5. In Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176, the Federal Court noted that extension of time applications before the Federal Court had been dealt with on a number of occasions and that there were consistent principles arising from these decisions, which are that (at [18] – [23]):

   ·   While there is no onus of proof upon an applicant, an application will not be granted unless it is proper to do so.  The prima facie rule is that proceedings commenced outside the 28-day period will not be entertained.  For the discretion to be exercised, there must be an acceptable explanation of the delay that is fair and equitable in the circumstances.

   ·   Action taken by the applicant, other than the making of an application for review, is relevant to the consideration of whether an acceptable explanation for the delay has been furnished.

   ·   Any prejudice to the respondent is a material factor militating against the grant of an extension.

   ·   However, the mere absence of prejudice is not enough to justify the grant of an extension.

   ·   The merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.

   ·   Considerations of fairness as between the applicant and other persons in a like position are relevant to the exercise of the discretion.

6. The Tribunal was guided by the above principles when making a decision on the extension of time application in this matter.

7. In his written reasons to the Tribunal, Dr Zaffino set out the following reasons for seeking an extension of time:

   I did not get copy of the decision so was unable to apply for it. Also was

   unaware of this platform that i can challenge the decision here.

8. The documents provided by Child Support indicate that Dr Zaffino was overseas as of late 2023.  He had contact with Child Support on 20 December 2023, at which time he advised his return flights were booked for 2 January 2024 (incorrectly recorded by Child Support as 2 January 2023 at folio 264).  Dr Zaffino had further contact with Child Support on 3 January 2024 where he was verbally advised of the decision the objections officer intended to make.  Dr Zaffino lodged a further departure application with Child Support on 16 January 2024. 

9. Given Dr Zaffino was aware of the decision that was about to be issued by Child Support, and given the papers indicate he was returning to Australia in January 2024, being the same month in which the objections officer’s decision was issued, the Tribunal found that Dr Zaffino has not provided an acceptable explanation for the delay. 

10. The Tribunal accepts that Dr Zaffino lodged a further departure application within Child Support and that Child Support were therefore made aware that Dr Zaffino did not agree with the decision that had been made.  The Tribunal does not make any finding about the merits of the substantive application, on the basis that it is difficult to ascertain any merit in the absence of detailed evidence about each party’s circumstances and noting the range of factors to be considered under section 117 of the Assessment Act when a departure determination is considered.

11. The Tribunal finds that there would be some prejudice to the other parent in requiring her to provide further evidence about her circumstances, for a matter that was determined some eight months ago.  The Tribunal finds there would be some prejudice to the wider public, through the use of public funds to further hear this matter.

12. Having regard in particular to the significant delay in this matter, the lack of an acceptable reason for the delay and to the prejudice to the other parent, the Tribunal has concluded that it is not proper to grant an extension of time in this matter.