D’Alo and Child Support Registrar (Child support)

[2020] AATA 5130

D’Alo and Child Support Registrar (Child support) [2020] AATA 5130 (13 October 2020)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2020/MC019838

APPLICANT:  Mr D'Alo

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                13 October 2020

APPLICATION:

An extension application made on 10 September 2020 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 19 July 2019 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 lengthy delay – not devoid of merit – 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 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. This is an application by Mr D’Alo for an extension of time to apply to the Tribunal for review of an objection decision of the Child Support Agency (CSA) dated 19 July 2019 partly allowing his objection to a “change of assessment” decision.

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. Mr D’Alo was required to make his application within 28 days of receiving the decision letter of 19 July 2019 (electronically).

3. Mr D’Alo made an application for AAT first review on 10 September 2020, well outside the 28-day period. In his written application, in relation to the reason for delay, Mr D’Alo advised the following:

   I was under a lot of duress and in a period of transition and uncertainty. Work was suffering due to the separation of my family and having to maintain the matrimonial home financially and continually providing upkeep to sell the home and present for open inspections. I was blocked from reducing the price to sell the house quickly and the house was on the market for over a year. Preparation for court dates and appearances with a lot of correspondence with lawyers particularly in July 2019. Having also to change accountants I was not in a position to do my financials to reflect accurately where I was placed. I continued to lodge appeals to CSA to establish the correct financial position up to the date of writing. I respectfully request an extension so this can be reviewed.

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. In general terms, it will be circumstances beyond a person’s control that will be regarded favourably in this context.

2. Mr D’Alo was clearly advised in writing of his right to seek a review within 28 days. The CSA materials record he was advised by a CSA officer in a telephone conversation on 22 July 2019 of his further appeal rights (folio 595 of the CSA materials).

3. The factors advanced by Mr D’Alo for his delay are not particularly unusual for those involved in child support cases. Whilst some of the reasons put forward by Mr D’Alo may have explained a short delay, those reasons are not compelling give the extraordinary delay of more than 12 months.

4. Mr D’Alo has effectively elected to rest on his rights; he does not have a reasonable explanation for the delay.

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.The nature of change of assessment decisions affords decision-makers a fair degree of latitude. Whilst the CSA decision appears perfectly reasonable on the evidence available to it, it could not be said that an application, if permitted to proceed, would be devoid of prospects for a different decision.

Potential prejudice to the other party

12.Given the extraordinary delay, the Tribunal is particularly concerned about the possible prejudice to the other party who has been entitled to rely, and budget, upon the decision.

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.Mr D’Alo does not have a reasonable explanation for the extraordinary delay. The Tribunal is also particularly concerned about the possible prejudice to the other party given the time that has passed.

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

16.The Tribunal observes that if there has been a material change in Mr D’Alo’s circumstances, he is at liberty to make a fresh application for a “change of assessment”.