Zerba and Child Support Registrar (Child support)

[2023] AATA 1788

Zerba and Child Support Registrar (Child support) [2023] AATA 1788 (18 May 2023)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2023/MC025920

APPLICANT:  Ms Zerba

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                18 May 2023

APPLICATION:

An extension application made on 6 April 2023 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 31 May 2022 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

CHILD SUPPORT – application for extension of time - no satisfactory explanation for the delay - little merit - 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 so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

STATEMENT OF REASONS

1. Ms Zerba and Mr Zerba are the parents of [Child 1] and [Child 2] (the administrative assessment of child support for [Child 2] ended on 17 November 2021). There has been a child support assessment in place since 15 November 2019. [Child 1] is recorded by Services Australia (Child Support) as being in Mr Zerba’s 93% care and Ms Zerba’s 7% care. Ms Zerba is the parent liable to pay child support.

2. On 18 October 2021 Ms Zerba applied for a departure from the administrative assessment of child support in place at the time of her application.[1] This is commonly referred to as a change of assessment or CoA. On 25 February 2022 DM [A] found Reason 2 established and changed the assessment as follows:

   ·      For the period 1 August 2021 to 31 July 2023, the annual rate of child support payable by Ms Zerba is reduced by $1,325 per annum.

   [1] See pages 11 to 12 of the 93(2) statement and documents.

3. On 18 March 2022 Ms Zerba lodged an objection to this decision. On 31 May 2022 objections officer partially allowed Ms Zerba’s objection and changed the assessment as follows:

   ·      For the period 1 October 2021 until 30 September 2022, the annual rate otherwise payable by Ms Zerba is reduced by $3,340.

4. Ms Zerba lodged an application for review with the Administrative Appeals Tribunal (the tribunal) on 6 April 2023. As the request for a review of this decision was not lodged with the tribunal within 28 days of the objections officer’s decision, an application for an extension of time was also lodged. The matter was heard on the papers. The tribunal had regard to the statement and documents (pages 1–1126) supplied by Child Support under subsection 93(2) of the Child Support (Registration and Collection) Act 1988 (the Act) and the reasons for review outlined by Ms Zerba in her extension of time application.

5. The issue to be considered is whether Ms Zerba should be granted an extension of time to lodge an application for review of the Registrar’s decision.

LAW AND CONSIDERATION

1. The law relating to a person’s right to seek review of a decision of the Registrar is contained in section 29 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). Subsection 29(2) of the AAT Act 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.

2. 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 (section 91 of 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.

3. 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 an individual case, may indicate that justice is served by the general rule being overruled.

4. In making this decision, I 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 six factors to take into account when deciding whether to grant an extension of time.

5. 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.

6. The Administrative Appeals Tribunal, differently constituted, applied the principles set out in Hunter Valley Developments 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.

7. The tribunal is satisfied that Ms Zerba was advised of her right to seek review with the tribunal in accordance with subsection 87(3) of the Act.

8. Ms Zerba provided the reasons for her extension of time application as follows:

   The objections to acknowledge the excessive costs I have had to simply access my own children, due to the children's father not contributing to 1km to get them to a train station of even 5km closer to me, has been ongoing with objection after objection from Child Support over 3.5 years.

   I have spent hours submitting calendars, reports and ODO readings of my mileage and car usage several times a week 180km each trip x 2-3 times a week, to just see me children, as I live in a remote area of Melbourne the only area I can afford to live.

9. Ms Zerba in her application also said she is experiencing financial hardship with $14 remaining of her salary at the end of each fortnight. She also said that the cost of running her vehicle to visit her children has “accounted for at least 20% of my salary each year”.

10. Ms Zerba was electronically notified of the objections officer’s decision on 31 May 2022.

11. Ms Zerba was notified in writing on the front page of the objections officer’s decision of 31 May 2022: “If you think this decision is wrong you can ask the Administrative Appeals Tribunal (AAT) to review it. You must do this within 28 days of the date you receive this letter”.[2]

    [2] Page 11 of the 93(2) statement and documents.

12. After the date of the objections officer’s decision Ms Zerba continued to provide information to Child Support which showed some of her expenses, including that she was experiencing financial hardship and had a number of expenses which she was unable to meet. There is evidence in the documents before the tribunal that Ms Zerba phoned Child Support on 1 December 2022,[3] which was after the period in which the change of assessment applied.

    [3] Page 985 of the 93(2) statement and documents.

13. During this call Ms Zerba could have applied for another change of assessment on the basis that the administrative assessment in place at this time was not reflective of her current circumstances. On 6 January 2023[4] Ms Zerba phoned child support again to advise she was experiencing financial hardship as a result of the current administrative assessment of child support. Although, as the tribunal has highlighted, the period in which the change of assessment applied had ended and this meant that the assessment reverted back to the assessment which was in place prior to the departure determination.

    [4] Page 1000 of the 93(2) statement and documents.

14. Ms Zerba also sent several letters to Child Support via email outlining her circumstances. Finally, on 13 January 2023[5] Ms Zerba spoke with an officer from Child Support who advised her to lodge an application for review with the tribunal. The other option available to Ms Zerba was to lodge a new change of assessment application with Child Support.

    [5] Page 1000 of the 93(2) statement and documents.

15. The tribunal accepts that Ms Zerba did not understand that she was attempting to appeal the decision of the objections officer made on 31 May 2022 and she kept lodging information with Child Support with the expectation that they would review her change of assessment. However, the correct procedure for Ms Zerba after 31 May 2022 was to lodge an application for review with the tribunal. Ms Zerba did not do this until 6 April 2023. The tribunal is satisfied that Ms Zerba has rested on her rights and does not have an adequate reason for the delay in her application to the tribunal.

16. The tribunal finds that while there may be some merit to Ms Zerba’s application for review, this does not ameliorate the significant delay in lodging her application to the tribunal. Ms Zerba applied for a review of the objections officer’s decision with the tribunal on 6 April 2023, her application was 282 days late to the tribunal.

17. The tribunal also notes that the objections officer took into account the costs for orthodontic treatment for [Child 1] and reduced Ms Zerba’s child support liability accordingly (finding that Reason 2 – the special needs of the child, in this case the cost of [Child 1]’s orthodontic work, was met).

18. The objections officer determined that Reason 1 – high costs in enabling a parent to spend time with, or communicate with, a child, and Reason 5 – money, goods or property received by the child, the payee or a third person were not met. There was no further information before the tribunal which would indicate that a more favourable decision would be made by the tribunal given Ms Zerba’s income remained the same as it was at the time the departure determination had ended, as far as the tribunal could ascertain, and her travel costs were similar to those she presented in her original application to change the administrative assessment of child support.

19. The tribunal considered whether there would be prejudice to the other party because of the delay in lodging an application for review and the time that has passed since the original decision was made. The tribunal is satisfied that the delay in Ms Zerba’s application to the tribunal and the time that has passed means prejudice to the other party exists.

20. The tribunal also considered whether extending the period to apply for review in the present circumstances would prejudice community expectations in relation to the finality and certainty of administrative decision making. It is the tribunal’s view that if the application for an extension of time to seek review were granted in this matter this would create prejudice to the wider public.

21. Ms Zerba has requested a review out of time. She has not provided an adequate explanation for the delay. The tribunal is of the view that there is little to no merit in reviewing the decision and it is not fair and equitable to do so. In the circumstances, the tribunal has decided to refuse to grant an extension of time to Ms Zerba.