Cooper and Child Support Registrar (Child support)

[2019] AATA 576

Cooper and Child Support Registrar (Child support) [2019] AATA 576 (30 January 2019)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2018/MC015401

APPLICANT:  Mrs Cooper

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                30 January 2019

APPLICATION:

An extension application made on 8 November 2018 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 17 August 2018 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 - poor prospects of success - extension of time refused

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

STATEMENT OF REASONS

1. On 8 November 2018, Mrs Cooper lodged an application with the Administrative Appeals Tribunal (the Tribunal) for an extension of time for review of a child support decision made on 17 August 2018.  The matter was considered on 30 January 2019 on the papers (consistent with the Tribunal’s ‘Child Support Review Directions’).  The Tribunal had before it a bundle of papers provided by the Department of Human Services, Child Support (the Child Support Agency).

2. Mrs Cooper and Mr Cooper are the parents of [Child 1] (born [date] December 2000).  Child support was registered for assessment on 14 September 2011 and Mr Cooper is the liable parent.

3. On 12 June 2018, Mrs Cooper lodged an application to extend the child support assessment for [Child 1] past her 18th birthday until 30 November 2019.  On 23 June 2018, the Child Support Agency made the decision to accept the application and the child support assessment was extended to 30 November 2019.

4. On 29 June 2018, Mr Cooper objected to the decision and on 17 August 2018 the Child Support Agency allowed the objection in part and made the decision to extend the child support assessment past [Child 1]’s 18th birthday until 21 December 2018 (the objection decision).

5. The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (the Act) and the Child Support (Assessment) Act 1989 (the Assessment Act).

6. The issue which arises in this case is whether or not to grant Mrs Cooper’s request for an extension of time to submit an application for review of a child support decision.

7. Part VIIA Division 2 of the Act sets out the procedures for applying to the Tribunal for a review of an objection decision made by the Child Support Agency as well as applying for an extension of time for such a review in the event the application is not made within the prescribed period.

8. Subsection 29(2) of the Administrative Appeals Tribunal Act 1975 establishes that an application for review must be made within 28 days of being served with notice of the decision.

9. If the 28 day period to apply for review has ended then a written application for an extension of time can be made under section 91 of the Act. Mrs Cooper was advised about the outcome of the objection decision in a letter from the Child Support Agency dated 17 August 2018 and under provisions of the Evidence Act 1995 she was therefore taken to be served with written notice of this decision by 30 August 2018.  Given Mrs Cooper lodged her application more than 28 days after she was served with notice the Tribunal is satisfied that an extension of time was required.

10. Under subsection 92(1) of the Act, the Tribunal must consider and grant or refuse an extension application. In doing so, the Tribunal considers the guiding principles for the exercise of discretion to allow an extension of time as set out in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186. In that case, the Federal Court said that an extension of time should not be granted unless satisfied it was proper to do so, noting that, in general, applications or proceedings commenced outside of a prescribed time limit will not be considered.

11. A review of other relevant authorities establishes that when considering whether or not to allow an extension of time the Tribunal should consider and balance a range of factors.  These factors are a guide and are not exhaustive, but generally include:

    ·      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 they will experience in providing evidence as a result of the delay;

    ·      any prejudice to the general public; and

    ·      fairness in granting an extension of time.

Reasons for the delay

1. The Tribunal finds that Mrs Cooper’s application for an extension of time on 8 November 2018 in relation to the objection decision made on 17 August 2018, of which she was notified by post, is approximately 42 days out of time.

2. In seeking an extension of time, Mrs Cooper states as the reason for the delay that she was dealing with other personal issues.  Mrs Cooper also states that she is a single parent on one income having to meet all [Child 1]’s costs as well as her own.

3. The letter from the Child Support Agency dated 17 August 2018 notifying Mrs Cooper of the objection decision outlines what to do if she disagreed with the decision.  This included asking the Tribunal to undertake a review “within 28 days from the date you receive this letter.”  The words “within 28 days” are in bold which, in the view of the Tribunal, gives a clear indication of the importance of this timeframe.

4. The Tribunal notes in evidence from the Child Support Agency that during a conversation with a child support officer on 17 August 2018 Mrs Cooper was informed about the outcome of the objection decision and advised of her appeal rights.

5. If Mrs Cooper had wished to progress an appeal to the Tribunal, she was aware of the need to do so within a prescribed timeframe.  The Tribunal is not satisfied with her explanation for the delay in doing so.  The Tribunal finds Mrs Cooper rested on her rights.

Merits of the application

1. Mrs Cooper is seeking a review of an objection decision which extended the child support assessment for [Child 1] beyond her 18th birthday until 21 December 2018.  Mrs Cooper submits that [Child 1] completes her Year 12 schooling on 30 November 2019 and the child support assessment should be extended to that date.  Mrs Cooper told the Tribunal she had provided all the right documents requested by the Child Support Agency and believed she met the requirements for an extension of the child support assessment.

2. A child support assessment ordinarily applies until the child turns 18 years of age (section 12 of the Assessment Act). A parent entitled to child support may, however, apply for the assessment to continue “until the last day of the secondary school year in which the child turns 18’ (section 151B of the Assessment Act).

3. The Child Support Agency must accept an application if satisfied certain criteria are met (section 151C of the Assessment Act). These include:

   ·      the child has turned 17;

   ·      an administrative assessment in relation to the child either is in force, or is likely to be in force, on the day before the child’s 18^th birthday;

   ·      the child is likely to be in full-time secondary education on their 18^th birthday;

   ·      the child’s 18th birthday will occur on or before the last day of the secondary school year; and

   ·      the application is made before the child’s 18th birthday.

4. The Tribunal notes that the last day of [Child 1]’s secondary school year in 2018 was 21 December 2018.  The corresponding last day in 2019 will be 30 November 2019.

5. [Child 1] turned 18 years of age on [date] December 2018.  The last day of the secondary school year in which [Child 1] turned 18 was 21 December 2018.  The Tribunal is satisfied section 151B does not, therefore, apply for the school year ending 30 November 2019.

6. The Tribunal is of the view that the Child Support Agency has correctly assessed all the relevant legislative requirements of the Assessment Act and the decision to extend the child support assessment to 21 December 2018 was therefore the correct one.

7. The test of merit has alternatively been expressed as whether, were it to proceed, the application for review ‘would have good prospects of success’ (Smith and Commissioner of Patents [2012] AATA 60 at [29]–[31]).

8. Based on the evidence available, the Tribunal finds Mrs Cooper’s application for review would not have good prospects of success.  The Tribunal considers Mrs Cooper’s application has little merit.

Potential prejudice to Mr Cooper and the wider public

1. Mr Cooper should ordinarily be able to rely on the child support assessment once the period for objection has passed.  On the other hand the application made by Mrs Cooper to the Tribunal is approximately 42 days out of time.  The Tribunal does not consider that Mr Cooper would be significantly disadvantaged if an extension of time to lodge an objection was granted.

2. The Tribunal must also consider whether or not there would be prejudice to the general public if an extension of time was granted.  Time limits for the review of administrative decisions should be observed as strictly as possible in order to assist the proper administration of government agencies.  There is also a public expectation that there be a degree of certainty in relation to time limits, however, the law allows for extensions of time.  In this case the Tribunal does not believe there would be significant prejudice to the general public if an extension of time to lodge an objection was granted.

Fairness in granting an extension of time as between Mrs Cooper and other persons in similar positions

1. The Child Support Agency notifies parties that they can seek a review of decisions with the Tribunal and they have 28 days within which to submit a request for such a review.  Most people comply within the 28 day timeframe.  It is clear the statutory time limit is to be enforced unless there are acceptable reasons for the delay.  There is nothing in Mrs Cooper’s situation that makes her circumstances markedly different to that of other applicants in a similar position.  The Tribunal finds that it would not be fair to others to grant Mrs Cooper an extension of time.

CONCLUSION

1. Mrs Cooper has not provided a satisfactory explanation for the delay in applying for review of the objection decision.  In addition the Tribunal could find little merit to her application.  This weighs heavily against the granting of an extension of time.

2. Having carefully considered the various factors which it must take into account, the Tribunal finds it would not be proper to grant an extension of time to seek review of the objection decision made on 17 August 2018.  Accordingly, the extension application is refused.