Goodway and Child Support Registrar (Child support)

[2024] AATA 2890

Goodway and Child Support Registrar (Child support) [2024] AATA 2890 (24 July 2024)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2024/SC028064

APPLICANT:  Mr Goodway

OTHER PARTY:  Child Support Registrar

TRIBUNAL:Senior Member T Hamilton-Noy

DECISION DATE:  24 July 2024

EXTENSION APPLICATION:

An extension application made on 11 June 2024, asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 14 March 2023, despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

CHILD SUPPORT – application for extension of time – non-agency payments – significant delay – family violence – extension of time refused

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted 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.

BACKGROUND

1. Mr Goodway is a separated parent of two children and is the payer in a child support case registered with Services Australia (Child Support).

2. On 15 July 2020, an employee of Child Support made a decision to refuse four payments made by Mr Goodway towards his former partner’s rent, totalling $3,070, as non-agency payments.

3. On 6 December 2022, Mr Goodway objected to that decision.  He was granted an extension of time by Child Support on 23 January 2023 to lodge the objection to the decision.

4. On 14 March 2023, an objections officer of Child Support disallowed the objection to the decision to refuse to credit the payments as non-agency payments.

5. On 11 June 2024, Mr Goodway made an application to this Tribunal for an independent review of Child Support’s decision.  As the request for review was not lodged within 28 days of the Child Support decision, an application for an extension of time was also lodged.

6. This matter has been determined on the papers.  At the time of its decision, the Tribunal had regard to the documents provided by Child Support (folios 1 to 342) and to Mr Goodway’s written reasons for the extension of time application.

CONSIDERATION

1. The legislation relevant to this decision is contained in the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act) and the Administrative Appeals Tribunal Act 1975 (the AAT Act). The issue for the Tribunal is whether Mr Goodway should be granted an extension of time to lodge an application for review of the Child Support decision dated 14 March 2023.

2. Section 89 of the Registration and Collection Act allows an application for AAT first review to be made in relation to an objections officer’s decision, by a person who objected to the original decision. Section 29 of the AAT Act allows for an application to be made to the Tribunal for review of a decision but requires, at subsection 29(2), that the application be made within 28 days of the day on which the decision was given to the applicant. The effect of the above provisions is that, while Mr Goodway is a person who is able to make an application to this Tribunal for a review of the decision dated 14 March 2023, he was required to do so within 28 days of being notified of the decision. The decision in this matter was sent by letter dated 14 March 2023 and was sent electronically (as indicated in folio 15 of the Child Support documents) and was therefore deemed to have been given to Mr Goodway on 14 March 2023. Mr Goodway was some 14 months outside of the 28-day time frame for lodging an application to this Tribunal.

3. Section 91 of the Registration and Collection Act allows a person applying for AAT first review to make an application for an extension of time for the Tribunal to consider the application, despite the ending of the 28-day period. This must be done in writing and must state the reasons for the person’s failure to apply for the review within the period. Section 92 of the Registration and Collection Act requires the Tribunal to consider the application and to grant or refuse the application within 60 days of the application having been made. Subsection 92(3) of the Registration and Collection Act requires that written notice of the decision to grant or refuse the application must be given to the person who made the extension of time application.

4. In Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176, the Federal Court noted that extension of time applications before the Federal Court had been dealt with on a number of occasions and that there were consistent principles arising from these decisions, which are that (at [18] – [23]):

   ·   While there is no onus of proof upon an applicant, an application will not be granted unless it is proper to do so.  The prima facie rule is that proceedings commenced outside the 28-day period will not be entertained.  For the discretion to be exercised, there must be an acceptable explanation of the delay that is fair and equitable in the circumstances.

   ·   Action taken by the applicant, other than the making of an application for review, is relevant to the consideration of whether an acceptable explanation for the delay has been furnished.

   ·   Any prejudice to the respondent is a material factor militating against the grant of an extension.

   ·   However, the mere absence of prejudice is not enough to justify the grant of an extension.

   ·   The merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.

   ·   Considerations of fairness as between the applicant and other persons in a like position are relevant to the exercise of the discretion.

5. The Tribunal was guided by the above principles when making a decision on the extension of time application in this matter.

6. In his written reasons to the Tribunal, Mr Goodway set out the following reasons for seeking an extension of time:

   I request the AAT please provide leave for this application for review to be accepted out of time. Since October 2022 and to date I have had 100% care of my two children due to the risk the mother poses the children and the domestic violence that the mother has subjected the children to. In December 2022 an ADVO was taken out by the police stopping the mother from having any contact with the children. The domestic violence the children suffered from the mother has caused significant trauma to them. Supporting my children and their wellbeing has required my attention and my pursuit for the non-agency payments to be accepted was overlooked. I have suffered financially by the mother constantly providing false information to child support. History of this child support matter shows that the mother has constantly provided false information to child support on multiple occasions. I have provided evidence that shows the false information provided by the mother. By granting an extension of time I will be allowed opportunity to have this unfair and unjust financial burden corrected.

7. The documents provided by Child Support indicate that Mr Goodway spoke to Child Support on 15 March 2023, the day after the objections officer’s decision was issued, and was advised he would need to apply to this Tribunal for a review of the decision.

8. The Tribunal accepts the above matters, set out by Mr Goodway, about his personal circumstances, although does not accept that they fully explain the 14-month delay in Mr Goodway’s lodgement of an application with this Tribunal.  The Tribunal has ultimately decided to place weight on the significant delay in the application to this Tribunal, within the context of Mr Goodway being advised by Child Support in March 2023 of the further appeal process.  The Tribunal places some weight on the prejudice that would be caused to the other party if an extension of time were granted, on the basis that she would be required to re-litigate payments that were made between 5 May 2020 and 15 June 2020, a significant time ago.  The Tribunal does not place any weight on any merits of the application, on the basis that it is unable to make a finding about merit in the absence of hearing from the parties about the question of mutual intention regarding the payments that were made.

9. Having weighed the above factors, the Tribunal has concluded that it is not proper to grant an extension of time in this matter.

Senior Member

T Hamilton-Noy