Madden and Child Support Registrar (Child support)

[2018] AATA 3068

Madden and Child Support Registrar (Child support) [2018] AATA 3068 (6 July 2018)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2018/MC014000

APPLICANT:  Dr Madden

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:               06 July 2018

APPLICATION:

An extension application made on 7 May 2018 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 16 February 2018 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS
Child support – Application for extension of time to apply for review – Application 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.    Dr Madden and Ms Madden are the parents of [Child 1] and [Child 2]. By letter dated 16 February 2018, the Child Support Agency (CSA) wrote to Dr Madden to advise him that the objection made by Ms Madden on 6 December 2017 in respect of a “change of assessment” decision made on 4 October 2017 had been allowed in part.

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).  Dr Madden was required to make his application within 28 days of receiving the decision letter of the objections officer dated 16 February 2018, which was delivered electronically and deemed delivered to him on that date.

3.     Dr Madden made application for AAT first review on 7 May 2018, outside the 28-day period. In short, Dr Madden told the Tribunal that he had been experiencing a very difficult time dealing with family-related matters and the care of the children. His focus was on dealing with those matters, and not on challenging the decision of the CSA. He did not consider that he had the mental capacity to bring an application in a timely way, despite his strong disagreement with the substance of the decision.

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 Pty Ltd 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

6.    Dr Madden advised the Tribunal that he was preoccupied with other matters, and did not feel he had been in an appropriate frame of mind to bring his application at an earlier time.

7.    Whilst the Tribunal understood Dr Madden’s submission, it is not unusual for matters in this jurisdiction to involve family law and other related issues. Dr Madden essentially rested on his rights; the Tribunal did not find his explanation for the delay compelling. However, the Tribunal observes the length of the delay, whilst not trivial, is not particularly excessive.

Merits of the objection

8.    Dr Madden disagrees with the substance of the decision. At face value, the decision of the CSA appears reasonable; however, departure matters involve the exercise of a relatively high degree of discretion. The Tribunal did not consider any application, if permitted to proceed, would be devoid of possible merit.

Potential prejudice to Ms Madden

9.    Ms Madden may suffer prejudice if an extension of time was granted. She was entitled to rely on the assessment in the absence of an application by Dr Madden within the 28-day period. The delay, although relatively short, is material.

Public interest considerations

10.  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

11.  The Tribunal does not consider Dr Madden has presented a reasonable explanation for the delay. The Tribunal is also concerned about the possible prejudice to Ms Madden who was entitled to rely on the objection decision.  

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

13.  The Tribunal observes that it is open for a party to a child support assessment to make an application for a fresh departure at any time for consideration of any material changes in circumstances.