Farnworth and Child Support Registrar (Child support)

[2020] AATA 589

Farnworth and Child Support Registrar (Child support) [2020] AATA 589 (20 January 2020)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2019/MC017933

APPLICANT:  Mr Farnworth

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:               20 January 2020

APPLICATION:

An extension application made on 28 November 2019 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 2 September 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 delay – arguable merit – 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 Farnworth for an extension of time to apply to the Tribunal for review of a decision of the Child Support Agency (CSA) dated 2 September 2019. The CSA decided to disallow Mr Farnworth’s 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 Farnworth was required to make his application within 28 days of receiving the decision of 2 September 2019 by post.

3. Mr Farnworth made an application for AAT first review on 28 November 2019, outside the 28-day period. In his written application to the Tribunal, Mr Farnworth advised that “I sent my response back to child support instead of the AAT”.

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 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. An examination of the CSA materials reveals Mr Farnworth was clearly advised in writing of his right to apply to the Tribunal, and supplied with an AAT “1800 number”. He was advised verbally of his right to apply to the Tribunal on 2 September 2019 (folio 312 of the CSA materials).

3. The next contact revealed in the CSA materials was a fax sent by Mr Farnworth to the CSA on 13 November 2019 in which he advises he had closed his business and started as an employee.

4. The Tribunal does not accept Mr Farnworth has a reasonable explanation for not exercising his right of review within the statutory 28-day period. This weighs heavily against granting an extension.

Merits of the objection

10.There is no point to granting an extension of time if an application is unlikely to succeed. Given the discretion available to decision-makers in this context, it cannot be said Mr Farnworth’s substantive application would be devoid of merit.

11.However, the Tribunal observes that where there is a material change in circumstances (such as the type identified by Mr Farnworth), a fresh “change of assessment” application can be made. This would seem to be the appropriate course for Mr Farnworth to pursue with the CSA.

Potential prejudice to the other party

12.The Tribunal is concerned about potential prejudice to the other party. She has been entitled to rely upon the original decision. This factor weighs against an extension being granted.  

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 Farnworth does not have a reasonable explanation for the delay. The Tribunal is concerned about possible prejudice to the other party. As discussed above, Mr Farnworth may choose to make a fresh application for a “change of assessment” on the basis of what he says are his materially changed circumstances.   

15.In weighing up all of the above, the Tribunal considers the interests of justice are best served by refusing to grant an extension of time.