Bourne and Child Support Registrar (Child support)

[2020] AATA 4411

Bourne and Child Support Registrar (Child support) [2020] AATA 4411 (21 September 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/BC019712

EXTENSION APPLICATION

NUMBER:2020/BC019712

APPLICANT:  Ms Bourne

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                21 September 2020

APPLICATION:

An extension application made on 23 August 2020 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 18 September 2019 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

CHILD SUPPORT – application for extension of time – credit of non-agency payments – no satisfactory explanation for the lengthy delay – no 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. This is an application by Ms Bourne for an extension of time to apply to the Tribunal for review.

2. There have been a number of objection decisions in this case. It is not the role of the Tribunal to conduct a general review of the Child Support Agency (CSA) or of the child support scheme; for the purposes of this application, the Tribunal can review only a single decision of the CSA. Ms Bourne raises a number of broad issues with the child support assessment; in her written application, she identifies a decision dated 29 March 2019 (which the Child Support Agency (CSA) advises was the subject of a disallowed objection on 18 September 2019). Ms Bourne advises she received the decision in October 2019.

3. On the basis of the decision identified by Ms Bourne as one being made on 29 March 2019, the Tribunal regards this matter as an application for an extension of time to seek review by the Tribunal of the objection decision dated 18 September 2019. In that decision, the CSA decided to disallow Ms Bourne’s objection to an earlier decision which accepted the other parent could be credited with a “non-agency payment” (NAP) in respect of school fees.

4. There is a time limit to apply for “AAT first review”: see section 90 of the Child Support (Registration and Collection) Act 1988 and paragraph 29(1)(d) of the Administrative Appeals Tribunal Act 1975. Ms Bourne was required to make her application within 28 days of receiving the decision letter of 18 September 2019.

5. Ms Bourne made an application for AAT first review on 23 August 2020, well outside the 28‑day period. In her written application to the Tribunal, she raises a number of issues concerning the underlying child support assessment; however, she provides no particular reasons as to why she did not exercise her right to apply for review of the objection decision dated 18 September 2019 within the statutory 28-day period.

6. The established cases indicate that the starting position is the prima facie rule that proceedings commenced outside a statutory period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at [416]). However, the primary concern “is to do that which will enable justice to be done between the parties” (see Martinsen v Secretary, Department of Family & Community Services [2004] FCA 297 per Spender J). Spender J quoted McHugh J in Gallo v Dawson (1990) 64 ALJR 459 (Gallo v Dawson) as follows:

   In order to determine whether the rules [imposing time limits] will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time ...

   When the application is for an extension of time … it is always necessary to consider the prospects of the applicant succeeding in the appeal …

7. In line with Wilcox J’s survey of cases in Hunter Valley Developments P/L v Cohen (1984) 3 FCR 344, the Tribunal proposes to consider the matters identified in Gallo v Dawson under the following headings:

   ·the explanation for the delay;

   ·the merits of the substantial application;

   ·any prejudice to the other party, including any prejudice in defending the proceedings occasioned by the delay; and

   ·any public interest considerations that might flow from a successful application including “the unsettling of other people … or of established practices”.

Explanation for the delay

1. The absence of a reasonable explanation for delay will ordinarily exclude the granting of an extension of time. In general terms, it will be circumstances beyond a person’s control that will be regarded favourably in this context.

2. The Tribunal observes the delay here is very lengthy. Ms  Bourne was clearly advised in writing of her right to exercise timely review. Ms Bourne has not provided an explanation for the delay; she effectively rested on her rights. This factor weighs very heavily against granting an extension.  

Merits of the objection

10.There is no purpose to be served by granting an extension if an application is not likely to succeed.

11.Here, the evidence reveals that the other parent had made payments towards school fees in accordance with the binding child support agreement which were required to be credited as NAPs in accordance with that agreement. The substantive application appears to have no prospects of success.

Potential prejudice to the other party

12.The Tribunal is concerned about the possible prejudice to the other party who has been entitled to rely upon the objection decision. The Tribunal observed the delay here is particularly lengthy.

Public interest considerations

13.Parliament has seen fit to set a 28-day time limit for the lodgement of objections so that parents (and the CSA) can act with certainty as to the outcome when the objection period has elapsed. The public has an interest in reviews of decisions made by the CSA being performed in a timely fashion and in a manner that ensures all applicants are treated fairly and equally. Accordingly, an extension of the time for objection is not to be automatically granted.

Conclusion

14.Ms Bourne has not presented a satisfactory explanation for the very lengthy delay.   

15.The Tribunal considers the interests of justice clearly require that the extension application be refused.