GZZT and Child Support Registrar (Child support second review)
[2021] AATA 1658
•2 June 2021
GZZT and Child Support Registrar (Child support second review) [2021] AATA 1658 (2 June 2021)
Division:GENERAL DIVISION
File Number: 2021/0886
Re:GZZT
APPLICANT
AndChild Support Registrar
RESPONDENT
DECISION
Tribunal:Member S Barton
Date:2 June 2021
Place:Perth
The application for an extension of time in which to lodge an application for review is refused.
...[SGD].....................................................................
Member S Barton
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
PRACTICE AND PROCEDURE – extension of time application – Child Support – percentage of care – length of delay – explanation for delay – prejudice to Respondent –prospects for success – application for an extension of time in which to lodge an application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 29, 29(2), 29(7)
Child Support (Assessment) Act 1989 (Cth) – ss 50, 54F
CASES
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344
Jamal v Secretary, Department of Social Services [2017] FCA 916
Swanton v Military Rehabilitation and Compensation Commission (2017) 73 AAR 56
SECONDARY MATERIALS
Australian Government, ‘Child Support Guide’ (3 April 2018)
REASONS FOR DECISION
Member S Barton
2 June 2021
BACKGROUND
The Application
The Applicant seeks a review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) dated 16 November 2020 which determined that the Other Party to those proceedings had 89 per cent care of the child and the Applicant had 11 per cent care of the child, with effect from 19 November 2019.
On 16 February 2021 the Applicant applied to the Tribunal for an extension of time (EOT) within which to apply for a review of the decision of the AAT1. The issue before the Tribunal is whether it is reasonable to grant this application for an extension of time.
Facts
The Applicant and the Other Party are the parents of two children, only one of whom is relevant to this determination.
On 2 December 2019 the Other Party advised the Child Support Agency (the Agency) that the child was spending less time with her father due to her equestrian commitments. On 10 June 2020 the Agency determined that the Other Party had 90% care of the child and the Applicant had 10 per cent of care of the child, from 19 November 2019.
On 24 July 2020 the Applicant objected to the Agency’s decision in relation to the percentage of care for the child and provided dates for when he said the child was in his care. The Other Party also provided dates detailing when she believed the child was in the care of the Applicant.
On 13 October 2020 an objections officer from the Agency allowed the Applicant’s objection, determining that the Other Party’s percentage of care was 77 per cent and the Applicant’s was 23 per cent from 25 October 2019.
On 15 October 2020 the Other Party applied to AAT1 for a review of the decision. On 16 November 2020, AAT1 set aside the objection officer’s determination and decided that the Other Party had 89 per cent care of the child and the Applicant had 11 per cent care of the child from 19 November 2019 (the objection decision).
In his EOT application, the Applicant said that he received the objection decision on 3 December 2020.
MATERIAL BEFORE THE TRIBUNAL
The interlocutory hearing took place on 7 May 2021. The Applicant appeared via teleconference, was self-represented and gave oral evidence. The Respondent was represented by Ms Veronica Finn who appeared via teleconference.
The Tribunal admitted the following documents into evidence at the hearing:
(a)Support letter for the application for an EOT dated 15 March 2021 (Exhibit A1);
(b)Application for an EOT, filed 16 February 2021(Exhibit A2);
(c)Application for a Second Review of the AAT1 decision dated 16 February 2021 (Exhibit A3);
(d)Letter from AAT1 – Adjustment of text of decision dated 11 January 2021(Exhibit A4);
(e)Corrected AAT1 Decision dated 16 November 2020(Exhibit A5);
(f)AAT1 Decision dated 16 November 2020 (Exhibit A6);
(g)Email from Respondent dated 2 March 2021 neither opposing nor consenting to the application for an EOT (Exhibit R1); and
(h)Submission from the Other Party opposing the application for an EOT (Exhibit OP1).
ISSUES
Section 29 of the Administrative Appeals Tribunal Act 1975 (Cth) details the manner of applying for a review of a decision. Section 29(2) provides a general prescribed time for making an application, which is 28 days of the Applicant receiving notice of the decision. However, s 29(7) provides that, upon application in writing by a person, this period may be extended if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
The issue before the Tribunal is whether it is satisfied, in all circumstances, that it would be reasonable to agree to an application for the EOT.
Section 29(7) is ordinarily interpreted in light of the principles set out in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment
(1984) 3 FCR 344. This decision and subsequent decisions made by the Tribunal have set out a non-exhaustive list of considerations that may guide determination of whether an EOT may be granted. These considerations include:(a)the length of delay;
(b)the explanation for the delay;
(c)any prejudice to the Respondent or the wider public arising from a delay; and
(d)merits of the application under review, that is, its prospect of success.
Length of Delay and Explanation
The Applicant received the relevant decision on 3 December 2020 and the application for review was lodged on 16 February 2021. The appeal deadline, given the 28 day time period,
was 31 December 2020. However, the Applicant submitted his request for a review some seven weeks later.In the interlocutory hearing, the Applicant said that it had been a busy time of year and that he did not pay attention to the first letter enclosing the AAT1’s decision, but was ‘triggered’ by the second letter notifying of an adjustment to the text of the AAT1 decision.
The Applicant’s explanation that he was busy can only be given very limited weight: by the Applicant’s own admission it is ‘no excuse’.
Prejudice
There is no prejudice to the Respondent if the EOT is granted. However, this is only one factor to be considered.
The Tribunal must also consider the interests of the public, the necessity of timeframes for administrative decision making and the interests of those applicants that appear before the Tribunal having complied with time limits, which the Applicant has not done.
The Tribunal must also consider any prejudice that the Other Party would face if the Tribunal were to grant the EOT. In the Other Party’s words, ‘It has been decided three months ago! This has been plenty of time (Exhibit OP1).’
Merits of the Application
With respect to the merits of the proposed review, it is not necessary for the Tribunal to undertake a complete consideration of the matter. It must, however, assess the merits in a ‘fairly rough and ready way’ as noted in Jamal v Secretary, Department of Social Services [2017] FCA 916, [12], quoted with approval in Swanton v Military Rehabilitation and Compensation Commission (2017) 73 AAR 56, [32].
The relevant legislation for the decision the Applicant has sought to review is the Child Support (Assessment) Act 1989 (Cth) (the Assessment Act) and the policy relevant to this application is titled the Child Support Guide.
Section 50 of the Assessment Act applies when the Registrar is satisfied that a person has, or is likely to have, a pattern of care during a care period. The Registrar must then determine the responsible person’s percentage of care for the child during the care period, which corresponds to the actual care the responsible person provided, or is likely to provide to the child during the care period.
Section 54F of the Assessment Act states that a percentage of care determination must be revoked if the Registrar is notified or becomes aware that the care of the child does not correspond with the existing percentage of care. On 2 December 2019, the Other Party advised the Child Support Agency that the child was spending less time with her father due to her equestrian commitments, resulting in a new determination for the percentage of care.
As detailed above (para [7]), on 16 November 2020 AAT1 determined that the Other Party had 89 per cent care of the child and the Applicant had 11 per cent care of the child from 19 November 2019.
The Applicant claims that the change of care did not happen until May 2020, not November 2019. He claims that he still had 23 per cent care of his daughter leading up to November 2019 until her birthday on 28 May 2020.
Beyond this statement there is no evidence before the Tribunal that the change of care period was incorrect. On the basis of the lack of evidence before the Tribunal, at an impressionistic level, it must conclude that the prospect of success in a review of the decision by AAT1 appears limited.
DECISION
The application for an EOT is refused.
I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Member S Barton
...[SGD]..................................................................
Associate
Dated: 2 June 2021
Date of hearing: 7 May 2021 Applicant: In person Counsel for the Respondent: Ms V Finn Solicitor for the Respondent: Services Australia
Key Legal Topics
Areas of Law
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Administrative Law
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Family Law
Legal Concepts
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Appeal
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Procedural Fairness
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