Irving and Child Support Registrar (Child support)

[2019] AATA 5519

Irving and Child Support Registrar (Child support) [2019] AATA 5519 (28 October 2019)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2019/MC016941

APPLICANT:  Mr Irving

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                28 October 2019

APPLICATION:

An extension application made on 13 July 2019 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 15 September 2017 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

CHILD SUPPORT – application for extension of time – no compelling 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 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.

STATEMENT OF REASONS

1. This is an application by Mr Irving for an extension of time to apply to the Tribunal against a decision of the Child Support Agency (CSA). The CSA decided not to accept Mr Irving’ claims for “non-agency payments”; an objections officer disallowed Mr Irving’ objection on 15 September 2017.  

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 Irving was required to make his application within 28 days of receiving the decision of 15 September 2017 electronically; he is deemed to have received the decision on that day.

3. Mr Irving made an application for AAT first review on 13 July 2019, well outside the 28-day period. In his written application to the Tribunal, he advised the following (unedited):

   I was travelling interstate from WA to VIC in 2017 for work, as I had been alienated
   from my children by ex-partner, so no reason to stay in WA. I hadn’t stayed in the
   same place for long as had been travelling in between air-bnb places to stay since
   coming to VIC. I had undiagnosed [Medical condition 1] for over 10 years and was always
   too tired to do any work after hours as I was always exhausted. I only received
   treatment for the [Medical condition 1] about 6 months ago and have once since then been
   able to try and get on top of personal paperwork after work [hours]. A friend [in] Victoria
   recognised I had [Medical condition 1], as he is a [doctor]. He gave me a
   prescription for a machine. Since I have been treated for the [Medical condition 1], I
   concentrated on getting another mistake made by the child support department
   overturned through the Supreme Court of Western Australia. That took a long time to
   do and I was only able to commence that after I got the treatment for my[Medical condition 1]. I started that case in November last year, and that only finalised in September
   this year. I would have commenced this action earlier, but I had the Supreme Court
   case, and I can only focus on one large after-hours case at a time. I didn’t realise any of the details of the decision made against me, until I read the letter which was saved
   in my MyGov account. I did not about the decision and the reasons for it until I
   downloaded the letter from the Department on 13-July 2019. I have never had a
   chance to have this decision reviewed at all properly and not been available until now.

   I’m not able to do multiple complicated things at once.

4. 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 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 …

5. 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.

2. In the Tribunal’s assessment, Mr Irving’ explanation for the delay is not strong. The CSA materials (at folio 311) record that, on 22 September 2017, he was advised verbally that his objection had been disallowed.

3. Notwithstanding the issues raised by Mr Irving, it appears he elected not to pursue the non-agency payment matter further; however, CSA materials record he actively pursued issues surrounding his 2007/08 adjusted taxable income. Mr Irving effectively rested on his rights.

4. The absence of a compelling explanation for what is a very lengthy delay weighs very heavily against granting an extension.

Merits of the objection

10.There is no point to granting an extension of time if an application is unlikely to succeed.

11.Even in the event the source of the payments could be attributed to Mr Irving, it is clear that there is no evidence that the other parent intended such payments to be in lieu of child support.

12.The application, if permitted to proceed, would not succeed. There is simply no utility in granting an extension, in the Tribunal’s assessment.

Potential prejudice to the other party

13.The Tribunal is particularly concerned about potential prejudice to the other party. Ms [A] was entitled to rely upon the decision in the absence of an objection within the 28-day period. The Tribunal observes the delay here is very lengthy.

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 Irving does not have a reasonable explanation for what is a lengthy delay; his application has no substantive merit. Ms [A] would suffer prejudice if the matter were permitted to proceed.

16.The Tribunal considers the interests of justice are clearly best served by refusing to grant an extension of time.