GFSG and Child Support Registrar (Child support second review)

[2020] AATA 342

GFSG and Child Support Registrar (Child support second review) [2020] AATA 342 (26 February 2020)

Division:GENERAL DIVISION

File Number:2019/8164          

Re:GFSG

APPLICANT

AndChild Support Registrar

RESPONDENT

MWKVAnd  

OTHER PARTY

DECISION

Tribunal:Member R West

Date:26 February 2020  

Place:Melbourne

Pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975, the Tribunal extends the time for making an application for review to 2 December 2019.

...................[sgd]..............................................

Member R West

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.

PRACTICE AND PROCEDURE – application for extension of time for review – appeal from Social Services & Child Support Division – extent of the delay – reasons for the delay – prospects of success – prejudice to parties – public interest – application granted.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

REASONS FOR DECISION

Member West

26 February 2020

1. This matter relates to the determination of the percentage of care to be attributed between the Applicant and her former partner (Other Party) in respect of the support of their child.

2. The matter before the Tribunal is an application for an extension of time for making an application for review of a decision made by the Social Services & Child Support Division of this Tribunal (AAT1). The AAT1 decision dated 4 October 2019, set aside the decision of the Respondent dated 4 April 2019, which made a percentage of care determination of 76 per cent to the Applicant and 24 per cent to the Other Party, for the purpose of the child support assessment for their child. The percentage of care from 2 August 2018 as determined by AAT1 was 100 per cent to the Applicant, and from 21 September 2018 was 0 per cent to both the Applicant and the Other Party.

3. An application for an extension of time to review the AAT1 decision was lodged by the Applicant on 2 December 2019.  The application was opposed by the Other Party and the Respondent neither consented to nor opposed the application.

4. Section 29(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act) stipulates that an application for review must be lodged within the period commencing on the date on which the decision is made and ending on the date 28 days after the date upon which the Applicant is notified of the decision. Section 29(7) of the AAT Act confers discretion of the Tribunal to extend the time for lodging an application, if it is satisfied that it is reasonable to grant an extension having regard to all of the circumstances of the matter.

5. The Applicant received notification of the AAT1 decision on 11 October 2019. The prescribed time for lodgement ended on 8 November 2019 and therefore the application for review was lodged 24 days out of time.

6. An interlocutory hearing was conducted by telephone on 31 January 2020 to consider the extension of time application.  The Applicant was self-represented.  The Respondent was represented by Ms Underhill from the Department of Human Services.  The Other Party was self-represented.  At the conclusion of the hearing, the Applicant was directed to file any medical evidence she sought to rely on.  The Applicant subsequently filed a medical report from Dr Adrian Di Marco dated 5 February 2020.

7. In considering whether to grant an extension of time, the Tribunal should have regard to the following factors:

   a.the extent of the delay in lodgement;

   b.the reasons for the delay;

   c.the prospects of success;

   d.the prejudice to the Applicant in not granting an extension;

   e.the prejudice to the Respondent and/or the Other Party in allowing the application to be lodged out of time; and

   f.the public interest.

8. The Applicant explained that the delay in filing her application was due to her stress and anxiety.  She stated that she forgot the date.  She also had been occupied with attaining an apprehended violence order (AVO) against the Other Party on 22 or 23 October 2019, which had “put her off” applying.  The Other Party confirmed that an AVO had been taken out against him.  Dr Di Marco’s brief report confirmed that the Applicant had a long history of anxiety and depression, which “may have caused indecisiveness and impaired her decision-making”. On the basis of this evidence, the Tribunal accepts that the Applicant’s failure to comply with the time limit prescribed in section 29(2) of the AAT Act was due to inadvertence, to which the Applicant’s mental health condition contributed.

9. The Tribunal is not satisfied that the Respondent would suffer any substantial prejudice if the extension of time were granted. 

10. While the Other Party may stand to be disadvantaged by any Tribunal decision in the Applicant’s favour, there is no indication that the Applicant’s delay in applying would itself cause him prejudice.

11. The prejudice to the Applicant if the extension were not granted is manifest.                   The Respondent conceded that apart from the application for review, the Applicant has no alternative means of redress.

12. Both the Applicant and the Other Party raised various issues regarding the care of their child, which may have relevance to the determination of the care percentages upon review.  The Tribunal is not in a position to assess the relative strength of the parties’ competing arguments, without first hearing the evidence as tested in a hearing.  The fact that the Respondent changed its assessment prior to the AAT1 hearing, which was again amended by AAT1, indicates that there is likely to be an arguable basis for the Applicant to have the decision reviewed.  Accordingly, the Tribunal is not satisfied at this preliminary stage that the Applicant’s case is without merit.  The Respondent conceded that it cannot be said that the application has no prospect of success.

13. In assessing whether to grant an extension of time, the Tribunal recognises that it is in the public interest to uphold statutory time limits and to require parties to administrative proceedings to abide by them.  The efficient functioning of the Tribunal, and the proper administration of government, are clearly advantaged by adherence to the rules.             An application made outside of the statutory time limits should not be entertained unless the Tribunal can be satisfied that it is reasonable in all of the circumstances to do so.        In this case however, the delay in lodging the application is fairly short and the public interest does not attract substantial weight.

14. Having regard to each of these factors, the Tribunal is satisfied that, in all the circumstances, it is reasonable to grant the Applicant the extension she seeks.

    DECISION

15. Pursuant to section 29(7) of the AAT Act, the Tribunal extends the time for the making of the Applicant’s application for review to 2 December 2019, the date upon which her application was received by the Tribunal.

I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Member R West.

.................[sgd]....................................................

Associate

Dated: 26 February 2020

Date of interlocutory hearing:	31 January 2020
Applicant:	By telephone
Solicitors for the Respondent:	Ms Maleah Underhill
Other Party:	By telephone