Kirby and Child Support Registrar (Child support)

[2018] AATA 4474

Kirby and Child Support Registrar (Child support) [2018] AATA 4474 (18 September 2018)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2018/BC014660

APPLICANT:  Mr Kirby

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                18 September 2018

APPLICATION:

An extension application made on 25 July 2018 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 22 June 2018 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS
CHILD SUPPORT – extension of time for lodgement of application for review – reasonable explanation for the delay – application has little 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. Mr Kirby and [Ms A] are the parents of [Child 1]. By letter dated 22 June 2018, the Child Support Agency (“CSA”) wrote to Mr Kirby to advise his objection to a decision refusing to make a departure determination had been disallowed. 

2. There is a time limit to apply for “AAT first review”: see section 90 of the Child Support (Registration and Collection) Act 1988 (“the Registration Act”), and paragraph 29(1)(d) of the Administrative Appeals Tribunal Act 1975 (“the Act”). Mr Kirby was required to make his application within 28 days of being deemed to receive the decision letter dated 22 June 2018 electronically.

3. Mr Kirby made application for AAT first review on 25 July 2018, outside the 28 day period. In his application to the Tribunal, Mr Kirby advised the following:

   There was a problem with viewing the Child Support correspondence dated on 22 June 2018 in relation to the Change of Assessment on the mygov.au website.

   When I phoned the Child Support Agency in mid July 2018 to find out what was happening with the decision, a Child Support Officer [I can not remember her name, but the conversation was documented] said that there must have been a computer error.

   The Child Support Officer forwarded me a copy of the letter [Objection Decision], in which it stated that I have a right of appeal to the decision and if I think the decision is wrong, I can contact the Administrative Appeals Tribunal (AAT) in order to review the decision.

   The decision maker was [name] [phone number is: 131272].

   Please be advised that I received a copy of the Child Support letter [Objection Decision] dated 22 June 2018 (in the post) on either 23 or 24 July 2018, and I completed the application for review by the AAT online on 25 July 2018 [Online Reference Number is: [number]].

   In short, the delay in my application for review by the Administrative Appeals Tribunal is outside of my control.

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. On the available materials, the Tribunal is satisfied that Mr Kirby has a reasonably satisfactory explanation for what is a relatively short delay in applying for review.

Merits of the objection

1. This factor weighs very heavily against Mr Kirby. There is no point granting an extension if it is unlikely Mr Kirby will secure the outcome he seeks.

2. Mr Kirby applied for a departure on three grounds under what the CSA refers to as reasons 3, 5 and 8A.

3. In the Tribunal’s assessment, the CSA approach to reason 3 ([Child 1’s] private education) was entirely appropriate. There is no dispute the fees are being shared equally by the parents. The CSA rightly observes that Mr Kirby’s claim he is paying a higher proportion of items such as textbooks and uniforms to be costs ordinarily incurred by parents, and are not special or particularly significant. There is no proper basis for a departure under reason 3.

10.Under reason 5, a parent can apply for a change of assessment in special circumstances if the child support assessment is unfair because the payer has paid or transferred money, goods or property to the child, the payee, or a third party for the benefit of the child. Mr Kirby claims to pay for items including swimming lessons to assist with asthma, medication and taxi fares in bad weather. Again, there is nothing special about parents incurring those types of costs when children are in their care. In recognition of his recorded care of [Child 1], Mr Kirby’s child support liability to [Ms A] is reduced under the formula. There is clearly no ground to depart under this reason.

11.The objections officer observed no argument had been put forward by Mr Kirby under reason 8A about why the assessment was unfair on the basis of the income or financial resources of the parties. There is nothing in the materials which leads the Tribunal to consider Mr Kirby would have any prospects of success under this reason. The application of the formula on the available evidence appears entirely appropriate to the circumstances of the case.

Potential prejudice to [Ms A]

12.[Ms A] may suffer prejudice if an extension of time was granted. However, the Tribunal observes the delay here is not significant.

Public interest considerations

13.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

14.The Tribunal considers allowing the matter to proceed any further would be futile; Mr Kirby’s departure application is devoid of substantive merit.   

15.In weighing all the relevant factors, the Tribunal concludes that the interests of justice are best served by refusing to grant an extension of time.

Member S Letch