Davidson and Child Support Registrar (Child support)

[2018] AATA 3070

Davidson and Child Support Registrar (Child support) [2018] AATA 3070 (9 July 2018)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2018/MC014116

APPLICANT:  Mr Davidson

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                9 July 2018

APPLICATION:

An extension application made on 17 May 2018 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 5 September 2017 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS
Child support – Application for extension of time to apply for review – No adequate explanation for delay – No reasonable prospect that the Tribunal would set aside the Registrar’s decision - Application 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. All statutory references below are to the Child Support (Registration and Collection) Act 1988.

2. In its child support jurisdiction, the Tribunal can review decisions of the Child Support Registrar if:

   ·The decision is of a type specified in section 89; and

   ·A valid application for its review is lodged with the Tribunal.

3. On 17 May 2018, Mr Davidson lodged an application with the Tribunal seeking a review of a decision made by the Registrar on 5 September 2017.  The decision in question was a decision of the Registrar under section 83 not to allow Mr Davidson an extension of time in which to object to a decision about his child support assessment made in 2014.  I shall refer to that decision as “the Registrar’s refusal decision”.

4. A decision of that type is reviewable by the Tribunal: see item 1 in the Table in section 89.  However, in Mr Davidson’s circumstances, under section 90 an application to the Tribunal must be made within 28 days of the day on which the notice of the Registrar’s decision was served on him.  I am satisfied that the Registrar served that notice by posting Mr Davidson a letter dated 5 September 2017.  There is no suggestion that that letter was not sent to the correct address (strictly, the last address known to the Registrar).  Applying statutory presumptions as to posting and delivery times, notice would be deemed to have been given on 18 September 2017.  I note that Mr Davidson has not suggested that notice was not given to him in a timely way.  I find that Mr Davidson’s application to the Tribunal was not made within the period prescribed in section 90.

5. That fact means that Mr Davidson’s application to the Tribunal is only validly made if:

   ·he applies to the Tribunal for an extension of time, as per section 91; and

   ·the Tribunal grants that extension of time.

6. Mr Davidson indicated in his application that he sought an extension of time and later provided written reasons for his failure to apply for the review within the prescribed period (as required by subsection 91(2)).  I must consider whether or not to grant him an extension of time.

Relevant principles

1. The child support law offers neither direction nor guidance on how the decision on the extension of time application should be made.  I have had regard to general case law, including Ingram-Nader v Brinks Australia Pty Ltd [2006] FCA 624, Hunter Valley Developments Pty Ltd  v Cohen [1984] FCA 176 and Brisbane Regional Health Authority v Taylor [1996] HCA 25. The first two judgments cited set out a number of factors which are potentially relevant in determining such applications, such as the reason for the delay and the merits of the objection. In the third judgment, McHugh J gives a clear explanation of the public policy considerations attaching to statutory time limits.

2. The starting point is a presumption that applications lodged out of time are not allowed to proceed.  The power to extend the time for lodgement should not be exercised in a way which frustrates the intent behind prescribing a time limit.

3. The paramount (although not prerequisite) consideration is whether there is an adequate explanation for delay.  If there is a good reason why the person did not lodge within time, then the person should be able to explain it.  If there is no good reason, then allowing the extension would tend to frustrate the purpose of having a time limit in the first place. 

Reason for delay

1. In Mr Davidson’s email of 26 June 2018, he explains that he had been engaged in proceedings regarding parenting orders for his children and describes the impacts of the situation on him, including on his mental state.  He writes that when the court orders were signed in December 2017, as he puts it, “it all hit me at once”.  Essentially he writes that he was, by reason of his mental state, incapable of dealing with the Child Support Agency at this time.

2. Both child support cases and parenting order litigation almost invariably involve separated parents, so the latter is not at all an unusual feature of the former.  In my view, the stress and trouble of being a participant in such litigation cannot of itself provide a reason for an extension of time.  I do not reject the possibility that such stress could have produced a temporary incapacity to function, but I note that Mr Davidson has not provided any corroborative evidence of such an incapacity and, on his account, the point at which that occurred was in December 2017.  That is well after the ordinary deadline for the application to the Tribunal; notice of the decision was served in September, so his application was required to be made by a date in October.

3. I do not consider that his explanation for delay is adequate.

Merits of the case

1. Another relevant factor is the merit of the case of the applicant.  Obviously, it is undesirable to allow an application to proceed if the review cannot reasonably produce any favourable result for the applicant.  To do so would simply be expenditure of the Commonwealth’s and the applicant’s time and resources for no purpose.

2. The decision that Mr Davidson wants the Tribunal to review is a decision to refuse him an extension of time in which to object to a decision made in 2014.  That decision was of a type commonly known as a “change of assessment”; this particular decision brought about a significant increase in the rate at which Mr Davidson was liable to pay child support.  As part of the decision, Mr Davidson’s income was varied to a particular figure to be indexed each year until the end of the child support case.  Typically, the event which ends a child support case is the youngest of the children turning 18 years of age, which in this case would occur in 2024.

3. Notably, the Registrar’s records indicate that notice of that decision was served on Mr Davidson by a letter bearing the date 16 July 2014.  Mr Davidson did not suggest to the Registrar that this notice was not served on him in or around late July 2014.  In Mr Davidson’s circumstances, section 81 prescribes that an objection to such a decision must be lodged with the Registrar within 28 days of notice being served on him.  Mr Davidson lodged his objection on 21 July 2017, roughly three years after the service of the notice.

4. The existence of a time limit in the ordinary law and the general undesirability of retrospectively changing people’s financial positions combine to suggest that the longer the delay in applying, the less desirable it is to allow an extension of time.  Where the ordinary time limit is 28 days, three years is a very long delay.

5. Furthermore, Mr Davidson’s reasons for delaying are less than compelling.  I quote the notice setting out the reasons for the Registrar’s refusal decision:

   Mr Davidson stated that he had not lodged his objection earlier as he was able to pay the assessed amount of child support.  His circumstances have changed and he states that he is no longer able to pay the assessed amount.  He does not want to lodge a new Change of Assessment application as he feels [Ms A] will use this against him.  He stated he has lost care of his daughter and he doesn’t want to lose his son as well.

6. Those reasons do not suggest any disagreement or dissatisfaction with the original decision at the time at which it was made.  They suggest that, because of a much later change of circumstances, the assessment became, in Mr Davidson’s view, an unjust and inequitable one.  The law provides an appropriate remedy: a new change of assessment application based on the changed circumstances.  A review of the original decision, focussed on whether that decision was the correct or preferable decision, is not the appropriate remedy.  Nor does it become an appropriate remedy simply because of the possibility that the other party might react adversely to the making of a fresh change of assessment application.

7. If I were to allow Mr Davidson’s application to proceed, I do not consider that there is any reasonable prospect that a Tribunal would set aside the Registrar’s refusal to grant Mr Davidson an extension of time in which to object.  In other words, I consider that there is no reasonable prospect that allowing Mr Davidson’s application to proceed will bring about any change to the child support assessment.

Conclusion

1. My consideration above of the two most influential factors suggests strongly that I should not permit Mr Davidson’s application to the Tribunal to proceed.  The other things generally considered in extension of time matters include prejudice, either to the other party or the broader community, and, if present, would tend to disfavour rather than favour the grant of an extension.  I see no need to consider any of those in detail, but note in passing that after a delay of what is now four years, [Ms A] may well be prejudiced in obtaining evidence relevant to the original decision. 

2. For the reasons above, I decline to grant Mr Davidson’s application for an extension of time in which to apply to this Tribunal.

DECISION

The extension application is refused.