FDNR and Child Support Registrar (Child support second review)

[2023] AATA 4068

FDNR and Child Support Registrar (Child support second review) [2023] AATA 4068 (1 December 2023)

Division:GENERAL DIVISION

File Number(s):      2023/5809

Re:FDNR

APPLICANT

AndChild Support Registrar

RESPONDENT

AndDCMY

OTHER PARTY

DECISION

Tribunal:Senior Member A Poljak

Date:1 December 2023

Place:Sydney

The applicant’s extension of time request is refused.

...........................[SGD].............................................

Senior Member A Poljak

NOTATION

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.

Catchwords

SOCIAL SECURITY – child support – extension of time – whether there was a reasonable explanation for the delay – prospects of success of the substantial application - whether the applicant has exercised alternative avenues of relief

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Cases

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

REASONS FOR DECISION

Senior Member A Poljak

1 December 2023

1. The applicant seeks an extension of time to apply for review of a decision of the Social Services and Child Support Division of this Tribunal (SSCSD) made on 24 November 2022 that refused him an extension of time to seek review of a change of assessment objection decision made on 7 September 2019 (objection decision).

2. These interlocutory proceedings concern the applicant’s request for an extension of time within which to make the applications for review pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). The respondent opposes the application.

   Principles To Be Applied

3. The Tribunal may extend the time for lodging an application if it “is satisfied that it is reasonable in all the circumstances to do so” pursuant to subsection 29(7) of the AAT Act.

4. The principles generally applied in determining an application for an extension of time are well-known.  In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, Wilcox J said, at [348] and [349], that the principles guiding the exercise of the discretion could be distilled from the authorities as including, “although not in any exhaustive manner”:

   (a)it is the prima facie rule that proceedings commenced outside the prescribed period will not be entertained, and an applicant must show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time;

   (b)a distinction is to be made between an applicant who has “rested on his rights”, allowing the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;

   (c)any prejudice to the respondent caused by the delay is a material factor militating against granting an extension;

   (d)the mere absence of prejudice is not enough to justify an extension; the “unsettling of other people” or of established practices is “likely to prove fatal to the application”;

   (e)the merits of the substantial application are properly to be taken into account;

   (f)“Considerations of fairness as between the applicant and other persons” in a similar position are relevant.

5. These principles are not to be applied mechanically.

6. The factors relevant for consideration in these proceedings are:

   (g)Whether the applicant has an acceptable explanation for the delay;

   (h)Prospects of success; and

   (i)Whether the applicant has exercised alternative avenues of relief

   Consideration

7. A comprehensive background to this matter is set out in the respondent’s written submissions. I do not think it is appropriate to set out the background in detail in these reasons but will highlight salient aspects.

8. On the basis that the applicant received the SSCSD decision on 6 December 2022, the deadline to seek review, being 28 days after receiving the decision, would have been 3 January 2023. The applicant applied to this Tribunal for review on 31 January 2023. The application was 28 days out of time.

9. The applicant has provided little evidence as to why he delayed in applying for review other than submitting that he suffered from a medical condition and struggled to function in all walks of life. The applicant has filed evidence about his medical condition with the Tribunal to substantiate these claims. However, I do note that the evidence focuses on the applicant’s condition and symptoms as they were in 2019. The evidence does not detail with any specificity how the medical condition impacted on the applicant and his ability to make an application within time nor provides clarity around the applicant’s condition as it is today.

10. It does appear that since 2019, the applicant was able to carry on his business, participate in Federal Court proceedings and file further claims with the respondent.  

11. Although it is neither necessary nor appropriate for me to determine the substantive matter in these interlocutory proceedings, it is relevant for me to form a preliminary view as to the prospects of the application under review. In this case, the prospects of whether the SSCSD would grant an extension of time to review the objection decision. The merits of the objection decision can only be considered by the SSCSD if this Tribunal decides to grant the applicant an extension of time.

12. I do not consider the applicant’s prospects of success in setting set aside the SSCSD refusal decision are strong, if an extension of time to apply for review was granted.

13. The objection decision was made on 7 September 2019. The applicant sought review by the SSCSD on 8 July 2022. This is a delay of 916 days outside of the 28-day period. In the tribunal’s view, this is a considerable delay.

14. The applicant claims that he was instructed by a child support representative that he was unable to do anything in relation to the decision for 3 years. There does not appear to be any record of this conversation or advice provided to the applicant before the Tribunal. File notes from 29 June 2020 and 22 February 2021 reveal conversations between the applicant and the respondent about his matter and that the applicant was told by the respondent on several occasions that he needed to lodge a new change of assessment if his circumstances had changed, and he said he knew the process.

15. The applicant did in fact apply for a change of assessment on 31 August 2021 (2^nd change of assessment). Had the applicant lodged his application on 29 June 2020 or shortly thereafter, he could have asked the decision maker to consider making a determination for periods from 1 August 2019, if the decision maker considered there were grounds to depart from the assessment and it was just and equitable and otherwise proper to make a decision to apply from a date from or after 1 August 2019, pursuant to section 98S(3B)(a) of the Child Support (Assessment) Act 1989 (Cth). The applicant has had three levels of merits review of the 2^nd change of assessment application that he lodged based on his change in circumstances. Accordingly, the applicant did avail himself of alternative avenues of relief.

16. As for the applicant’s medical condition, it appears that the applicant’s business was most profitable in the 2019-2020 financial year, the period of time that is specifically addressed in his evidence about his condition and its impacts. He was plainly able to conduct his business successfully and suggests that he did not suffer from a significant impairment in his capacity to work or function.

    Decision

17. I am not satisfied that the applicant has provided a reasonable explanation for the delay in applying to this Tribunal to review. Additionally, the applicant’s prospects of success in setting set aside the decision of the SSCSD are not strong given the lack of sufficient explanation to justify the extensive delay of 916 days. The applicant has also availed himself of other options by submitting the 2^nd change of assessment and participating in additional merits review.

18. For these reasons, I find that it is not reasonable in all the circumstances of the case to grant the extension of time. The application is refused.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

.............................[SGD]...........................................

Associate

Dated: 1 December 2023

Date of interlocutory hearing:        27 November 2023

Solicitor for the Applicant:           Mr H Weller

Solicitor for the Respondent:         Ms L James, Services Australia