Conway and Child Support Registrar (Child support) - [2024] ARTA 205

Conway and Child Support Registrar (Child support) [2024] ARTA 205 (29 November 2024)

Applicant: Mr Conway

Respondent: Child Support Registrar

Tribunal Number: 2024/BC028626
Tribunal:General Member P Noonan
Place:Melbourne

Date: 29 November 2024

Application: An extension application made on 28 September 2024 asking the Tribunal to consider the application for an eligible social services decision (first review) of the Child Support Registrar on 7 May 2024 despite the period for applying for review having ended.
Decision:The extension application is refused.

CATCHWORDS

CHILD SUPPORT – application for extension of time – no acceptable explanation for the delay – prejudice to the other parent – 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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.

Statement of Reasons

BACKGROUND

On 7 May 2024 an objections officer decided to depart from the administrative assessment of child support payable by setting the annual rate of child support payable by [Ms A] at $0 for the period 1 February 2024 to 29 June 2029. The administrative assessment in place at that time required Ms Conway to pay an annual rate of child support of $1,312.
On 28 September 2024 Mr Conway lodged a request for review, including an application for an extension of time with the Administrative Appeals Tribunal (the Tribunal). Mr Conway provided a written statement as to why he failed to request review of the decision within 28 days of receipt of the decision.
From 14 October 2024, the Administrative Appeals Tribunal (ART) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the ART that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the ART. This decision and statement of reasons is made by the Tribunal.
The issue to be considered is whether Mr Conway should be granted an extension of time to lodge an application for review of the objection decision.
CONSIDERATION
The law relating to a person’s right to seek review of a reviewable decision is contained in section 18 of the Administrative Review Tribunal Act 2024 (the ART Act). Subsection 18(3) of the ART Act requires that a person must lodge a review request with this Tribunal within 28 days of the decision having been made.
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 Child Support (Registration and Collection) Act 1988 (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, grant or refuse that application and advise the person of the decision in writing.
In this case, Mr Conway was sent a notification on 8 May 2024 advising him of the objection decision. Mr Conway lodged an application for review with the Tribunal on 28 September 2024. As this request for a review of the decision was not lodged within 28 days of the decision having been made, an application for an extension of time must now be considered.
The High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 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 the facts of an individual case, may indicate that justice is served by the general rule being overruled.
In making this decision, the Tribunal has considered the 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 the time limit. The Federal Court identified factors to take into account when deciding whether to grant an extension of time.
These principles have more recently been restated in the decision of her honour Collier J in Englezos v Secretary, Department of Social Services [2023] FCA 31. These authorities clearly set out the well settled considerations when considering whether to exercise the discretion to allow an extension of time and the factors a decision-maker should consider and balance, which the Tribunal will now consider.
Mr Conway’s written reasons for not applying within the 28 day period are as follows:
“Child support have been unfair in their decision, have not taken into account the facts and many other circumstances. Very poor communication and evidence based on false statements provided by [Ms A]”.
The Tribunal is satisfied that Mr Conway was advised of his right to seek review with the Tribunal in accordance with the requirements for notification of the decision in respect to the objection, as set out at subsection 87(3) of the Act. The decision also
included information as to further rights of review and the 28-day time limit. In the Tribunal’s view, the submissions made by Mr Conway do not provide an acceptable explanation for the delay. He did not provide any reasons as to why he was prevented from lodging a review request some 115 days past the cut off date for doing so.
The Tribunal finds that Mr Conway was properly advised of his rights of review and that he has not provided an acceptable explanation for the delay, given he was aware of his review rights and was advised of these rights to seek review with the Tribunal.
Mr Conway has not provided any submissions regarding the merits of his request for an extension of time to apply for review of the decision. The Tribunal has not conducted a substantive review of the decision. The Tribunal considers on the material before it that the application has little merit, in the absence of any evidence identifying that there is an arguable case. The Tribunal notes that if additional information is available, Mr Conway could lodge a further application with the Registrar for a departure determination and such an application could be considered retrospectively under the legislation.
The Tribunal finds that it would be unfair in the circumstances to extend the time to lodge a request for review, particularly in the absence of an acceptable explanation for the delay.
The Tribunal also finds that there would be prejudice to the other party as they have a right to rely on a decision made after a certain amount of time has passed which is a considerable amount of time in this case.
The Tribunal also finds that there is prejudice to the community. In so finding it has weighed the interest that all citizens have in effective public administration. This reflects that generally prospective applicants must adhere to statutory time limits in seeking review of administrative decisions. There is nothing in the submissions before the Tribunal which, in its view, reflects that disturbing the finality of the decision-making process would be a fair outcome in this matter.
Given the totality of the above considerations the Tribunal is not satisfied that it is reasonable to grant the extension of time requested in this case.

DECISION

The extension application is refused.

Date of hearing:	29 November 2024 (on the papers)
Representative for the Applicant:	None