MJNT and Child Support Registrar (Child support second review) - [2024] ARTA 413

MJNT and Child Support Registrar (Child support second review) [2024] ARTA 413 (29 October 2024)
Applicant/s:  MJNT
Respondent:  Child Support Registrar
Other Parties:  SZFJ

Tribunal Numbers: 2024/5406
2024/5358

Tribunal:General Member Gallagher
Place:Perth
Date:29 October 2024
Date of written reasons: 30 October 2024

Decision:2024/5406
The Applicant’s application for an extension of time lodged on 30 July 2024 to review the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 18 October 2023, is refused.

2024/5358
The Applicant’s application for an extension of time lodged on 30 July 2024 to review the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 24 April 2024, is refused.

..............[SGD].................
General Member Gallagher
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.
Catchwords
CHILD SUPPORT – extension of time refused.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s 29
Administrative Review Tribunal Act 2024 (Cth) ss 19, 19(2)
Cases
Re Hewson and Australian Postal Corporation (1998) 50 ALD 994
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Knight v Commonwealth Ombudsman [2023] FCA 868
Hazelwood v Telstra Corporation [2012] AATA 901
Statement of Reasons
ISSUE FOR DETERMINATION

At the time of the Applicant’s application, the Tribunal was known as the Administrative Appeals Tribunal. On 14 October 2024, a new federal administrative body called the Administrative Review Tribunal commenced, replacing the Administrative Appeals Tribunal. The Administrative Appeals Tribunal has ceased operations, with all current matters now transferred to the Administrative Review Tribunal. References to ‘the Tribunal’ in this decision refer to whichever of the Administrative Appeals Tribunal or the Administrative Review Tribunal was in operation at the relevant time.
The issue before the Tribunal is whether the Applicant should be granted an extension of time to lodge his applications for review of two decisions of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1), as it was then known, dated:
· 18 October 2023, relating to application 2024/5406; and
· 24 April 2024, relating to application 2024/5358,
(together, the Reviewable Decisions).
This in turn begs the question of whether, it is reasonable in all the circumstances to do so.
As it is not in dispute that the Applicant’s applications for review were out of time, the sole issue for the Tribunal in each application is whether it should exercise the discretion made available to it under the then s 29 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), essentially being the now s 19 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act).
THE APPLICATIONS AND BACKGROUND FACTS
The Applicant and the Other Party are the parents of two children, K and A:
·Application 2024/5406 is an application for an extension of time relating to K.
·Application 2024/5358 is an application for an extension of time relating to A.
Application 2024/5406
In relation to Application 2024/5406, the Tribunal notes the background facts to this matter as set out in paragraphs 9 to 18 (inclusive) of the Respondent’s Outline of Submissions of the Extension of Time Application dated 11 October 2024 and filed with the Tribunal on the same day (Respondent’s Outline of Submissions).
Application 2024/5358
In relation to Application 2024/5358, the Tribunal notes the background facts to this matter as set out in paragraphs 19 to 28 (inclusive) of the Respondent’s Outline of Submissions.
RELEVANT LEGISLATION AND GENERAL PRINCIPLES
As to relevant legislation and general principles, the Tribunal notes those provisions and principles set out in paragraphs 29 to 33, (inclusive) of the Respondent’s Outline of Submissions, including ss 18 and 19 of the ART Act.
In Re Hewson and Australian Postal Corporation (1998) 50 ALD 994,[1] (Re Hewson) Senior Member Allen stressed the desirability of finality in these matters:[2]
In my opinion the major factor in this matter is that prima facie proceedings commenced outside the limitation period ought not to be entertained. The respondent is entitled to pursue its business on the assumption that claims not pursued within the time limits laid down in the legislation can be regarded as finalised. This principle must give way if an applicant is shown on the materials adduced by either party to have a good case of succeeding in the action and there is little prejudice to the respondent.
[1] At 998.
[2] At [23].
A similar view was expressed by Judge Wilcox in the Federal Court decision of Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348, a decision which also set out the principles commonly referred to (as they were in Re Hewson and numerous other decisions) in considering whether an extension of time should be granted in these matters. Those principles are well-known and have been referred to in more recent cases such as Knight v Commonwealth Ombudsman [2023] FCA 868[3] and can succinctly be put as:
(a)Delay – The length of the delay, awareness of appeal rights and whether the Applicant seeking an extension of time can demonstrate an acceptable explanation for the delay;
(b)Prejudice – Any prejudice to the parties or to the general public that might be suffered were an extension to be granted;
(c)Merits – The merits of the substantive application; and
(d)Fairness – Alternative avenues of relief and considerations of fairness between the Applicant and other persons in a similar position.
[3] At [10].
EVIDENCE
The matter was listed for hearing in Perth on 29 October 2024. The Applicant was self-represented. The Respondent was represented by Ms Tamara Economou, Lawyer, from Services Australia. All parties appeared by telephone. No witnesses were called.
The Respondent filed an Outline of Submissions, with Attachments A to C.
The Tribunal is satisfied that all the relevant evidence was before the Tribunal and that the parties were provided an opportunity to address it.
CONSIDERATION
The Applicant, in effect, seeks orders which would have the effect of extending the time for lodging his applications for review of the Reviewable Decisions.
Before considering matters relating to each of the relevant principles, the Tribunal makes the following preliminary comments and findings:
(a)The discretion to allow further time to request reconsideration is unfettered, the exercise of which is informed by the statutory time limit in subsection 18(3) of the ART Act as well as the power granted by subsection 19(2) of the ART Act to extend that time limit.
(b)The Applicant has not put any arguments forward to the effect that his applications for review were lodged within time.
Therefore, the Tribunal proceeds on the basis that it is not in dispute that the Applicant’s requests were filed out of time and hence the issue for review is as previously stated.
(c)The Applicant lodged both his applications for an extension of time on 30 July 2024:
(i)In relation to application 2024/5406 – being, 242 days after the 28-day time frame prescribed by subsection 18(3) of the ART Act; and
(ii)In relation to application 2024/5358 – being 49 days after the 28-day time frame prescribed by subsection 18(3) of the ART Act.
(d)The Applicant has not taken any issue with having received the Reviewable Decisions:
(i)In relation to application 2024/5406 – on 27 October 2023; and
(ii)In relation to application 2024/5358 – on 7 May 2024.
or the related notice which refers to his appeal rights to this Tribunal and to the 28-day time limit for doing so.
The Tribunal notes that rather, in his applications for an extension of time for each application, the Applicant does not state the date he received the relevant reviewable decision.
Delay
In relation to the Applicant’s delay in lodging his applications for review of the Reviewable Decisions, in his application forms the Applicant states the reason for his delay was that he has new evidence, which he claims the Respondent has.
At the hearing, the Applicant gave evidence that at the time he received the Reviewable Decisions, he was unable to contact his children given the VRO in place at the time and hence couldn’t access any evidence. The Applicant also said he was unaware he could lodge his application for review forms on their own and without the accompanying evidence.
The Tribunal notes the letters sent by the AAT1 on 27 October 2023 and 7 May 2024 with the delegate’s decision refers to the Applicant’s appeal rights and the 28-day time limit for lodging the appeal. In the context of the substantive decisions, the length of the delay of 242 days is excessive and the delay of 49 days is well beyond what is prescribed by statute.
The Applicant’s explanation for the delay does not reveal a reason for the delay and does not provide a basis for granting an extension of time. The Tribunal also considers the lack of any other explanation being offered weighs against the Applicant.
The Applicant did not make any submissions to the effect that he did not receive the letter setting out his appeal rights. There are several authorities in which the Tribunal declined to grant an extension of time where it was satisfied that the Applicant was fully aware of the right to seek review of the decision in question.
Prejudice and fairness
As to prejudice and fairness, the Respondent submitted that it would not be prejudiced by an extension of time being granted. The Respondent submitted that however, the Tribunal should consider any relevant submissions by the Other Party in this regard. [4] The Tribunal notes that no such submissions were made.
[4] Respondent’s Outline of Submissions [53].
Additionally, the Respondent submitted that while the Tribunal should assess for itself what the public interest dictates in any given matter, it is unlikely to be determinative in a case such as this where it can fairly be said that the reviewable decisions concern the immediate interests of the parents and is not a matter of broader public importance.[5]
[5] Respondent’s Outline of Submissions [54].
The Applicant made no submissions as to prejudice and fairness.
In the Tribunal’s view, on the current available evidence the Respondent is not prejudiced by the Applicants’ applications other than incurring the costs of defending the applications.
As to fairness, the Tribunal notes that to refuse the extensions of time in the Applicant’s case would not have the effect of denying the Applicant any relief.
Merits
The Tribunal understands that the Applicant’s substantive applications concern decisions regarding the Applicant’s and the Other Party’s respective percentages of care in relation to their two children, K & A.
The Applicant made no written submission regarding the merits of his substantive applications. At hearing, the Applicant stated that his application have a good chance of succeeding now that he is better placed to obtain evidence, as the VRO against him has expired and he can now physically approach his children.
Regarding merit, the Respondent made a number of submissions regarding the issues that would arise in the proposed appeals of the Reviewable Decisions, including related date of effect issues,[6] again noting that the Respondent neither consents to, nor opposes, the Applicant’s applications for an extension of time.[7]
[6] Respondent’s Outline of Submissions [55] to [68].
[7] Respondent’s Outline of Submissions [69].
The Tribunal finds that the Applicant would face significant hurdles given the matters raised by the Respondent. The Tribunal considers that while the Applicant’s substantive claim clearly presents with a number of issues, it is neither necessary nor appropriate for the Tribunal to attempt to do anything other than gauge the apparent merit of the proposed case.[8]
[8] Hazelwood v Telstra Corporation [2012] AATA 901, Deputy President Hack at [30].
CONCLUSION
Having considered the relevant principles and related submissions and evidence, the Tribunal has found that only the matter of prejudice and fairness is made out in favour of the Applicant. Therefore, the Tribunal finds the extension of time is not warranted under subsection 19(2) of the ART Act.
DECISIONS
Application 2024/5406 - The Applicant’s application for an extension of time lodged on 30 July 2024 to review the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 18 October 2023, is refused.
Application 2024/5358 - The Applicant’s application for an extension of time lodged on 30 July 2024 to review the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 24 April 2024, is refused.