Costin and Child Support Registrar (Child support)

[2021] AATA 1536

Costin and Child Support Registrar (Child support) [2021] AATA 1536 (14 April 2021)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2021/SC020858

APPLICANT:  Mrs Costin

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:               14 April 2021

APPLICATION:

An extension application made on 23 February 2021 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 17 September 2020 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 – 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 Mrs Costin for extensions of time to apply to the Tribunal for review of decisions of the Child Support Agency (CSA) dated 17 September 2020. That decision concerned the interpretation of a binding child support agreement; in simple terms, there was provision in the agreement for the father’s liability for periodic child support to be reduced by non-periodic payments (predominantly school fees). Mrs Costin’ position was that the father was liable for both periodic and non-periodic payments under the agreement; the father objected. The CSA ultimately determined that the father was not liable for periodic payments.

2. 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. Mrs Costin was required to make her application within 28 days of receiving the decision letter of 17 September 2020.

3. Mrs Costin made application for AAT first review on 23 February 2021, well outside the 28‑day period. In her written application, Mrs Costin raised a recent development – namely, that the father had, in January 2021, failed to pay school fees. Mrs Costin says that if she knew the father would not make a payment in January 2021, she would have objected to the decision of 17 September 2020 within 28 days.

4. 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 …

5. 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.

2. Mrs Costin was made aware of her right to apply for review by the Tribunal at the time of the objection decision. She did not make an election to pursue the matter further at the time. It was only when the separate matter of the father not making a non-periodic payment early this year for which Mrs Costin says he is liable did Mrs Costin elect to pursue the matter further. She does not have a reasonable explanation for the delay.

Merits of the objection

1. There is no purpose to be served by granting an extension if an application is not likely to result in the outcome sought by Mrs Costin.

2. It seems to the Tribunal that the CSA has correctly interpreted the binding agreement. The terms appear quite clear on their face; the father’s liability for periodic payments is to be  discharged by his liability for non-periodic amounts. It seems to the Tribunal that the only decision the Tribunal could make would be to affirm the objection decision of 17 September 2020.

10.The subsequent alleged failure by the father to pay school fees in early 2021 is a separate matter to the decision reviewed by the objections officer and is specifically covered by  clauses in the agreement. Clause 3.5 provides that where Mrs Costin pays the entirety of expenses (including school fees), she is to forward an invoice for the father to reimburse her within 7 days (Mrs Costin suggests the father has failed to respond to her request for reimbursement). The Tribunal also observes that clause 3.3.1 requires written agreement for a change of school.

11.The Tribunal does not provide legal advice; however, two observations might be made. The CSA is not able to recover on a parent’s behalf non-periodic payments. Secondly, it is open for Mrs Costin to obtain her own legal advice concerning what she says is the father’s failure to comply with the binding agreement; the Tribunal observes that if an agreement is ultimately terminated, a parent may choose to apply to the CSA for an administrative assessment.

12.As Mrs Costin’ application to the Tribunal against the decision of the CSA of 17 September 2020 has no prospects for success, no purpose is to be served by granting an extension.

Potential prejudice to the other party

13.The Tribunal must take account of the possible prejudice to the other party who has been entitled to rely on the objection decision.

Public interest considerations

14.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

15.Mrs Costin’ application, if permitted to proceed, has no prospects for success.  The Tribunal considers the interests of justice require that the extension application be refused.