Mabbitt and Child Support Registrar (Child support)

[2020] AATA 3666

Mabbitt and Child Support Registrar (Child support) [2020] AATA 3666 (18 June 2020)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2020/SC018671

APPLICANT:  Ms Mabbitt

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                18 June 2020

APPLICATION:

An extension application made on 17 April 2020 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 16 August 2018 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

CHILD SUPPORT – application for extension of time – date of effect of a care percentage decision because of a late objection - no satisfactory explanation for the delay – little merit – considering all the factors 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. On 17 April 2020 Ms Mabbitt lodged an application with the Administrative Appeals Tribunal (the Tribunal) for an extension of time for review of a child support decision made on 16 August 2018. The matter was considered on 18 June 2020 on the papers (consistent with the Tribunal’s ‘Child Support Review Directions’).  The Tribunal had before it a bundle of documents provided by the Child Support Agency.

2. Ms Mabbitt and [Mr A] are the parents of [Child A] (born August 2013) and [Child B] (born March 2015).  The case commenced on 18 September 2016 and [Mr A] is the parent liable to pay child support under the assessment.

3. From 14 August 2016 the child support assessment reflected Ms Mabbitt as having 63 per cent care of [Child B] and [Child A] and [Mr A] as having 37 per cent care but effective in the assessment from 18 September 2016.

4. On 1 November 2017 [Mr A] notified the Child Support Agency of a change in care stating he had 42 per cent care of the children from 23 June 2017 as per court orders.

5. On 5 December 2017 the Child Support Agency made the decision to reflect that Ms Mabbitt provides 58 per cent care and [Mr A] provides 42 per cent care of [Child B] and [Child A] from 23 June 2017 but effective in the assessment from 1 November 2017.

6. On 27 February 2018 Ms Mabbitt objected to this decision and on 16 August 2018 the Child Support Agency allowed the objection in part and made the decision to reflect that Ms Mabbitt provides 57 per cent care and [Mr A] provides 43 per cent care from 23 June 2017 (the objection decision).

7. As special circumstances were not met the objection decision was applied to the assessment from 27 February 2018.  The application made by Ms Mabbitt to the Tribunal for an extension of time relates to this date of effect decision only and not the care decision.

8. The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (the Act).

9. The issue which arises in this case is whether or not to grant Ms Mabbitt’s request for an extension of time to submit an application for review of a child support decision.

10. Part VIIA, Division 2 of the Act sets out the procedures for applying to the Tribunal for a review of an objection decision made by the Child Support Agency, as well as applying for an extension of time for such a review in the event the application is not made within the prescribed period.

11. Subsection 29(2) of the Administrative Appeals Tribunal Act 1975 establishes that an application for review must be made within 28 days of being served with notice of the decision.

12. If the 28-day period to apply for review has ended, then a written application for an extension of time can be made under section 91 of the Act.  The Tribunal finds Ms Mabbitt was advised about the outcome of the objection decision by electronic means in a letter from the Child Support Agency dated 17 August 2018.  Given Ms Mabbitt lodged her application more than 28 days after she was served with notice, the Tribunal is satisfied that an extension of time was required.

13. Under subsection 92(1) of the Act, the Tribunal must consider and grant or refuse an extension application.  In doing so, the Tribunal considers the guiding principles for the exercise of discretion to allow an extension of time as set out in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186. In that case, the Federal Court said an extension of time should not be granted unless satisfied it was proper to do so, noting that, in general, applications or proceedings commenced outside of a prescribed time limit will not be considered.

14. A review of other relevant authorities establishes that when considering whether or not to allow an extension of time, the Tribunal should consider and balance a range of factors.  These factors are a guide and are not exhaustive, but generally include:

    ·     the reasons for the delay and whether the applicant rested on their rights;

    ·     the merits of the substantive application;

    ·     any prejudice to the other party including any difficulties they will experience in providing evidence as a result of the delay;

    ·     any prejudice to the general public; and

    ·     fairness in granting an extension of time.

Reasons for the delay

1. The Tribunal finds that Ms Mabbitt’s application for an extension of time on 17 April 2020 in relation to the objection decision made on 16 August 2018, of which she was notified by electronic means on 17 August 2018, is approximately 581 days out of time.  It is noted that Ms Mabbitt submitted her application for review of the objection decision as it related to both the care matter and the date of effect matter on 12 March 2020. To have been within the prescribed period her application for review of the date of effect matter should have been made no later than 14 September 2018.

2. In seeking an extension of time Ms Mabbitt cites several reasons for the delay in her application. Ms Mabbitt states she did not know she was able to review the objection decision and initially attempted to have it reviewed by an authorised review officer within the Appeals Branch of Services Australia. She was then informed she should instead request a review by the Tribunal. Ms Mabbitt states the Child Support Agency did not advise her she could seek a review by the Tribunal. Ms Mabbitt also states she was unclear about the process and has experienced extreme ongoing stress due to domestic violence.

3. The notification of the objection decision provided by the Child Support Agency dated 17 August 2018 outlines what to do if Ms Mabbitt disagreed with the decision.  This included asking the Tribunal to undertake a review “within 28 days from the date you receive this letter”.  The words “within 28 days” are in bold which, in the view of the Tribunal, gives a clear indication of the importance of this timeframe.

4. The Tribunal also notes in evidence from the Child Support Agency that when first discussing her objection with a child support officer on 27 October 2018 Ms Mabbitt was verbally advised of her appeal rights to the Tribunal.

5. The Tribunal nonetheless accepts that Ms Mabbitt may have been confused about her appeal rights to the Tribunal in relation to the date of effect decision.  The notification of the objection decision provided by the Child Support Agency dated 17 August 2018 only mentions the care decision and does not specifically refer to the date of effect decision even though this decision has separate appeal rights.

6. The Tribunal notes in evidence from Ms Mabbitt a copy of the letter she received from the authorised review officer at Services Australia explaining the objection decision had already been reviewed by the Child Support Agency. The letter is dated 12 March 2020, however, it refers to Ms Mabbitt contacting Services Australia on 7 March 2019 to request the review.

7. Even if Ms Mabbitt was unaware of the need to seek a review by the Tribunal this would not explain why she waited until 7 March 2019 to approach Services Australia and request a review through that agency. The objection decision was made on 16 August 2018 and her delay in approaching Services Australia strongly suggests that Ms Mabbitt rested on her rights.

8. Ms Mabbitt has also stated she was experiencing extreme ongoing stress due to domestic violence. While the Tribunal has considerable sympathy for Ms Mabbitt in this regard it is unclear, based on the evidence provided, how this may have prevented her from submitting her application for review in a timely fashion.

Merits of the application

1. Ms Mabbitt is seeking a review of an objection decision which set new care determinations for [Child A] and [Child B] effective from 27 February 2018.  The date of effect was established after the Child Support Agency found there were no special circumstances which prevented Ms Mabbitt from objecting to the original decision within the relevant 28-day period.

2. An objection to a care percentage decision does not have to be lodged within 28 days, however, if it is lodged outside this period and the objection is either allowed in full or in part, the effective date of the objection decision is the date on which the objection was lodged (subsection 87AA(1) of the Act).

3. The Child Support Agency may, if special circumstances exist that prevented the person from lodging the objection within the relevant period, make a determination under subsection 87AA(2) of the Act that subsection 87AA(1) applies as if the reference to 28 days were a reference to such longer period as determined to be appropriate.

4. The Act does not define the term special circumstances, but the Family Court in Gyselman & Gyselman [1991] FamCA 93 has held, “as a generality it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary”.

5. Although not bound by the Child Support Guide issued by the Child Support Agency, the Tribunal is able to take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation.  Relevantly, the Child Support Guide states at 4.1.8 that:

   Special circumstances

   In considering special circumstances the Registrar will look at the particular circumstances of the applicant. The applicant must show that their particular circumstances prevented them from lodging an objection within the required timeframe. They must explain why there was a delay in lodging the objection and that the circumstances are sufficiently special for the applicant to receive the benefit of an extension to the period in which to lodge an objection, in order for the objection decision to have effect from an earlier date. Some examples of special circumstances may include:

   ·     the parent was seriously ill or had an accident that stopped them from lodging an objection

   ·     the parent suffered a personal trauma such as a death in the family or a natural disaster that caused damage to the parent’s property

   ·     the parent had communication difficulties, including isolation, illiteracy or poor English-language skills

   ·     the parent reasonably relied upon inaccurate or misleading information.

6. In this case Ms Mabbitt told the Child Support Agency that she was unaware of the effect the care decision would have on her family tax benefit.

7. On the basis of this evidence the Tribunal is satisfied the Child Support Agency properly considered the test of special circumstances before making the decision not to apply the care percentage decision from an earlier date.

8. The test of merit has alternatively been expressed as whether, were it to proceed, the application for review “would have good prospects of success” (Smith and Commissioner of Patents [2012] AATA 60 at [29]–[31]).

9. The Tribunal finds Ms Mabbitt’s application for review would not have good prospects of success and therefore considers her application has little merit.

Potential prejudice to [Mr A] and the wider public

1. [Mr A] should ordinarily be able to rely on the child support assessment once the time for objection has passed.  Given Ms Mabbitt is approximately 581 days late in making her application, it would be reasonable for [Mr A] to consider the objection decision was final.  The Tribunal finds [Mr A] would be significantly disadvantaged if an extension of time to lodge an objection was granted.

2. Time limits for the review of administrative decisions should be observed as strictly as possible in order to assist the proper administration of government agencies.  There is also a public expectation that there be a degree of certainty in relation to time limits, however, the law also allows for extensions of time.  In this case the Tribunal believes there would be prejudice to the general public if an extension of time to lodge an objection was granted.

Fairness in granting an extension of time as between Ms Mabbitt and other persons in similar positions

1. The Child Support Agency notifies parties that they can seek a review of decisions with the Tribunal and they have 28 days within which to submit a request for such a review.  Most people comply within the 28-day timeframe.  It is clear the statutory time limit is to be enforced unless there are acceptable reasons for the delay.  The Tribunal is not satisfied Ms Mabbitt’s circumstances are sufficiently different to that of other applicants in a similar position that an extension of time is warranted.  The Tribunal finds that it would be unfair to others to grant Ms Mabbitt an extension of time in view of the statutory timeframe which applies.

CONCLUSION

1. Ms Mabbitt has not provided a satisfactory explanation for the lengthy delay in applying for a review of the objection decision.  The Tribunal could also find little merit to her application based on the evidence available.  This weighs heavily against the granting of an extension of time.  There would also be prejudice to [Mr A] should an extension of time be granted.

2. Having carefully considered the various factors which it must take into account, the Tribunal finds it would not be proper to grant an extension of time to seek review of the objection decision made on 16 August 2018.  Accordingly, the extension application is refused.