BCNW and Child Support Registrar (Child support second review)

[2023] AATA 3091

BCNW and Child Support Registrar (Child support second review) [2023] AATA 3091 (29 September 2023)

Division:GENERAL DIVISION

File Number(s):      2023/0108

Re:BCNW

APPLICANT

AndChild Support Registrar

RESPONDENT

AndZTHC

OTHER PARTY

DECISION

Tribunal:Member Lee Benjamin

Date:29 September 2023

Place:Brisbane

The extension of time application is granted.

..............................[SGD]..........................................

Member Lee Benjamin

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

PRACTICES AND PROCEDURES – Extension of time to lodge review application – whether prejudice to Respondent and Other Party exists – reasonable explanation for delay found – extension of time application granted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Cases

Hunter Valley Developments Pty Limited & Ors v Minister of Home Affairs and Environment (1984) 58 ALR 306

REASONS FOR DECISION

Member Lee Benjamin

29 September 2023

WHAT IS THIS DECISION ABOUT?

1. BCNW seeks review of a decision made by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) on 7 November 2022. BCNW was required to, but did not, file her review application within 28 days of that decision. BCNW contends that her application was three days out of time. BCNW now seeks an extension of time for making her review application.[1] The issue for the Tribunal is whether it is reasonable in all the circumstances to grant the extension. I find that it is.

   [1] The Child Support Registrar does not oppose the application. ZTHC opposes the application.

   WHAT QUESTION NEEDS TO BE ANSWERED?

2. Subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) permits the Tribunal to extend the time for lodgement of an application for review if the Tribunal is satisfied that it is reasonable in all the circumstances to do so. Accordingly, the question for the Tribunal is whether, in the instant case, it is so reasonable.

   WHAT IS THE ANSWER TO THE QUESTION?

3. On the materials before me, I am of the view, and find, that it is reasonable to grant BCNW an extension of time to file her application. Accordingly, I extend the time for the making of BCNW’s review application to 6 January 2023.  

   WHY IS THIS THE ANSWER TO THE QUESTION?

4. The principles governing whether the Tribunal should grant an extension of time to lodge an application are succinctly outlined in Hunter Valley Developments Pty Limited & Ors v Minister of Home Affairs and Environment (1984) 58 ALR 306. These are, relevantly:

   (a)The length of delay;

   (b)The Applicant’s awareness of appeal rights and explanation for the delay;

   (c)The prospects of success if the extension of time is granted;

   (d)Any prejudice to the Respondent or the Other Party if the extension of time is granted; and

   (e)Fairness between the Applicant and others in a similar position.

5. In the instant application the first matter to be considered is the length of the delay. BCNW contends that her application is three days out of time. Whilst this is not of itself determinative, it is important to understand the reason for the delay.

6. The AAT1 decision was pronounced on 7 November 2022.[2] BCNW claims that she received the AAT1 decision by post on 6 December 2022. BCNW says that she completed and posted her application for review to the Administrative Appeals Tribunal Registry on 2 January 2023. The Administrative Appeals Tribunal Registry received the application on 6 January 2023. BCNW says that the conflagration of delays in (i) receiving postal delivery of the AAT1 decision, (ii) her ability to access public library computers and printers over the Christmas/New Year public holidays and (iii) postal delivery of the review application to the Tribunal, prevented her from meeting the 28-day statutory deadline.       

   [2] BCNW’s extension of time application erroneously claims that the decision was made on 21 November 2022.The Child Support Registrar also appears to be under the same misapprehension.

7. It is therefore quite clear that the Applicant understood that she had a right of appeal, that she sought to exercise that right, and that her application would have been filed within the statutory time limit had it not been the above conflagration of delays.

8. Turning to the prospects of success, it is hard to make an assessment given the very limited material before the Tribunal. However, based on the Tribunal’s recent approach to similar matters, it appears that there is at least the prospect of new evidence being produced, which could result in a different decision being made.

9. In relation to prejudice, in my view, there is some detriment to the Other Party, who appears to have done his best to comply with his child support obligations. Clearly it is detrimental to him to be caught up in ongoing litigation, and it is important that parties in these disputes understand that they are unlikely to be in the best interests of their children.

10. It is, in my view, likely that others in a similar position to BCNW would be granted an extension of time, especially if they had made genuine efforts to file an application within the time period, and there was some prospect of success.

11. Having considered all of relevant factors, I am of the opinion that BCNW should be granted an extension of time for the filing of her application. She appears to have made some effort to file within the requisite period, there may be new evidence which could result in a different decision, and while there is some inconvenience to the Other Party, that is not enough to outweigh other factors. In my view, it would be generally fair to grant the application.

12. Accordingly, BCNW’s application for an extension of time to lodge her application for review is granted until 6 January 2023.

    I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Member Lee Benjamin.

    ..............................[SGD].......................................

    Associate

    Dated:   29 September 2023

    Date of hearing:   28 September 2023

    Applicant:  Self-represented

    Solicitor for the Respondent:            Donna Smith, Services Australia

    Other Party:  Self-represented