Horne and Child Support Registrar (Child support)

[2020] AATA 6165

Horne and Child Support Registrar (Child support) [2020] AATA 6165 (2 September 2020)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2020/MC019192

APPLICANT:  Mr Horne

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:               2 September 2020

APPLICATION:

An extension application made on 4 June 2020 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 9 January 2020 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 - no merit - 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.

STATEMENT OF REASONS

1. This is an application by Mr Horne for an extension of time to apply to the Tribunal for review of an objection decision of the Child Support Agency (CSA) dated 9 January 2020 which partly allowed his 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 Horne was required to make his application within 28 days of receiving the decision letter of 9 January 2020.

3. Mr Horne made an application for AAT first review on 4 June 2020, well outside the 28‑day period. In his written application, Mr Horne advised the following:

   Mental health issues with having high level of anxiety and PTSD under treatment of

   specialists and the impact of COVID-19 pandemic on my overall health.

4. The Tribunal discussed Mr Horne’s application by conference telephone. He said he is under the very regular treatment of a psychiatrist and psychologist, and was unable to deal with his CSA-related affairs. He said he would not open CSA letters. He says the CSA decision has drastically overassessed his income as a [Occupation 1]. He feels unfairly treated by the lack of access to his children.

5. 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 (Gallo v Dawson) 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 …

6. 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. In general terms, it will be circumstances beyond a person’s control that will be regarded favourably in this context.

2. Mr Horne was clearly advised in writing of his right to apply for review to the Tribunal within 28 days.

3. The Tribunal formed the view from the discussion with Mr Horne that he is plainly affected by his mental health issues. However, the Tribunal observes that the delay here is very lengthy; whilst it is understandable that he finds dealing with the CSA troubling, it appears Mr Horne has continued to work, and ultimately Mr Horne was under an obligation to monitor and manage his CSA affairs.

10.It seems to the Tribunal that Mr Horne has effectively rested on his rights by choosing not to engage with his CSA affairs. This factor weighs very heavily against Mr Horne’s application for an extension.

Merits of the objection

11.There is no purpose to be served by granting an extension if an application is not likely to succeed.

12.Whilst the CSA decision appears entirely reasonable on the basis of the evidence available to it, the nature of “change of assessment” decisions involves the exercise of a degree of discretion. Accordingly, it could not be said that Mr Horne’s application, if permitted to proceed, would have no prospects for success.

Potential prejudice to the other party

13.The Tribunal is particularly concerned about the possible prejudice to the other party who has been entitled to rely, and budget, upon the decision. The delay here is not a matter of days but many months.

Public interest considerations

14.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

15.Mr Horne does not have a reasonable explanation for the delay. The Tribunal is particularly concerned about the possible prejudice to the other party given the lengthy delay.

16.The Tribunal considers the interests of justice require that the extension application be refused.

17.The Tribunal observes that Mr Horne is at liberty to make further applications for a change of assessment where there has been a material change in circumstances.

Member S Letch