Nalder and Child Support Registrar (Child support)

[2019] AATA 5518

Nalder and Child Support Registrar (Child support) [2019] AATA 5518 (18 July 2019)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2019/SC016364

APPLICANT:  Ms Nalder

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                18 July 2019

APPLICATION:

An extension application made on 1 May 2019 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 11 February 2019 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

CHILD SUPPORT – application for extension of time – no satisfactory explanation for the delay – 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. Ms Nalder and Mr [A] are the parents of [Child 1] (born February 2001).  There has been a child support assessment in place since 4 July 2018 with collection by the Department of Human Services, Child Support (the Child Support Agency) since 7 December 2018.  Ms Nalder is the parent liable to pay child support under the assessment.

2. On 7 December 2018 Mr [A]made an application to the Child Support Agency to extend the child support assessment for [Child 1] past her 18^th birthday. 

3. On 11 December 2018 the Child Support Agency made the decision to extend the child support assessment for [Child 1] past her 18^th birthday until 27 September 2019.

4. On 30 January 2019 Ms Nalder objected to this decision and as her objection was not made within the prescribed period she applied for an extension of time on 4 February 2019 (the first extension of time application).

5. On 11 February 2019 the Child Support Agency refused to grant the extension of time application (the refusal decision) and Ms Nalder was notified of the refusal decision by post in correspondence dated 11 February 2019.

6. On 1 May 2019 Ms Nalder lodged an application with the Administrative Appeals Tribunal (the Tribunal) for an extension of time for review of the refusal decision (the second extension of time application).

7. The matter was considered on 18 July 2019 on the papers (consistent with the Tribunal’s ‘Child Support Review Directions’).  The Tribunal had before it a bundle of papers provided by the Child Support Agency.

8. The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (the Act) and the Child Support (Assessment) Act 1989 (the Assessment Act).

9. The issue which arises in this case is whether or not to grant Ms Nalder’s request for an extension of time to review the refusal decision.

10. Part VIIA, Division 2 of the Act sets out the procedures for applying to the Tribunal for a review of a 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 that Ms Nalder was advised about the outcome of the refusal decision by post in correspondence from the Child Support Agency dated 11 February 2019. In her application to the Tribunal for an extension of time Ms Nalder advised she received the refusal decision on 18 February 2019. Given Ms Nalder lodged her application with the Tribunal more than 28 days after she was served with notice of the refusal decision, the Tribunal is satisfied that an extension of time is 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 that 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 Nalder’s application for an extension of time on 1 May 2019 in relation to the refusal decision made on 11 February 2019, of which she was notified by post, is approximately 44 days late.  It is noted that Ms Nalder submitted her application for review of the refusal decision to the Tribunal on 18 April 2019.  To have been within the prescribed period Ms Nalder’s application should have been made no later than 18 March 2019.

2. In seeking an extension of time, Ms Nalder states as the reasons for the delay that she was waiting for her daughter’s attendance record from the school in order to demonstrate that [Child 1] was no longer in full-time education.  Ms Nalder also states that she now has the attendance record and the school has advised her that [Child 1] will be formally unenrolled.  Ms Nalder says she has yet to receive confirmation of this action from the school.

3. The notification of the refusal decision provided by the Child Support Agency dated 11 February 2019 outlines what to do if Ms Nalder disagrees with the decision.  The refusal decision makes it clear Ms Nalder can ask the Tribunal to undertake a review “within 28 days from the date you receive this letter”.  It also provides contact details for the Tribunal.

4. Given this correspondence and the nature of the first extension application it is unlikely Ms Nalder was unaware of the significance of failing to apply to the Tribunal for review within the prescribed 28 day period even though she may have been waiting for further evidence.

5. The Tribunal also notes that in correspondence to the Child Support Agency dated 19 February 2019 in relation to the refusal decision Ms Nalder states:

   I myself called [High School 1] on the 13^th of February and was informed that as from Monday the 18^th of February they were asking [Child 1] to sign herself out of school as she had failed year 12 and she was 18 so they had no reason to keep her enrolled.

6. Had Ms Nalder been actively pursuing evidence relating to [Child 1’s] enrolment status after contacting the school on 13 February 2019, it is unlikely she would still be waiting for this evidence as at 1 May 2019 (the date she made the second extension of time application).

7. The Tribunal is not satisfied with the explanation provided by Ms Nalder for the delay in applying to the Tribunal for review of the refusal decision.

Merits of the application

1. The Tribunal must determine if the application for review has merit.  To do so the Tribunal is required to consider whether or not another decision maker might consider it was proper to allow Ms Nalder an extension of time to object to the decision to extend the child support application for [Child 1] past her 18^th birthday until her last day of school.

2. Ms Nalder told the Child Support Agency she had objected late because she had been dealing with domestic violence and after 20 years she made the break and was finding it difficult because Mr [A] was trying to control her.

3. In considering this as a ground for her late objection the Child Support Agency noted that, while a valid reason, Ms Nalder had not provided any evidence in support.  As a result the Child Support Agency was not satisfied with the explanation provided by Ms Nalder.

4. The Child Support Agency also considered the merits of Ms Nalder’s application for an extension of time to object.  Ms Nalder said she was objecting on the basis that [Child 1] had not been attending school.  While Ms Nalder did not provide any attendance records she did advise the Child Support Agency on 4 February 2019 that during a meeting with the school in June or July 2018 she was warned about [Child 1’s] poor attendance.

5. A child support assessment ordinarily applies until the child turns 18 years of age (section 12 of the Assessment Act). A parent entitled to child support may, however, apply for the assessment to continue “until the last day of the secondary school year in which the child turns 18” (section 151B of the Assessment Act).

6. The Child Support Agency must accept such an application if satisfied certain criteria are met (section 151C of the Assessment Act). These include:

   ·     the child has turned 17;

   ·     an administrative assessment in relation to the child either is in force, or is likely to be in force, on the day before the child’s 18^th birthday;

   ·     the child is likely to be in full-time secondary education on their 18^th birthday;

   ·     the child’s 18^th birthday will occur on or before the last day of the secondary school year; and

   ·     the application is made before the child’s 18^th birthday.

7. As [High School 1] confirmed [Child 1] was enrolled at the school for year 12 ending on 27 September 2019, the Child Support Agency found there was no merit to Ms Nalder’s objection.

8. The Child Support Agency then considered the likelihood of any disadvantage to Mr [A] and found the timeframe that had passed was not significant and there would be no prejudice to him.  The Child Support Agency concluded, however, that Ms Nalder’s request for an extension of time would disadvantage the general public as she had not provided a valid reason for the delay in objecting.

9. Given the absence of merit in the objection made by Ms Nalder and the fact there were no valid reasons for delay, the Child Support Agency made the decision to refuse to grant the extension of time.

10. The Tribunal is of the view that the Child Support Agency properly considered the various factors required before making the refusal decision.  Given this, even if the Tribunal did grant the second extension application and went on to hear the first extension application, it is unlikely the Tribunal would grant the first extension application, meaning there would be no need to consider Ms Nalder’s objection.

11. As it is unlikely the Tribunal would grant the first extension application if the matter was heard, the Tribunal therefore finds Ms Nalder’s application has little merit.

Potential prejudice to the other party and the wider public

1. Ms Nalder’s application to the Tribunal on 1 May 2019 is approximately 44 days late.  If the Tribunal were to hear the application there would be little prejudice to the Child Support Agency which would be the other party to the review.

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 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 some prejudice to the general public if an extension of time was granted given the statutory timeframe which applies and the unsatisfactory reasons for the delay.

CONCLUSION

1. Ms Nalder has not provided a satisfactory reason for the delay in her second extension application and the Tribunal has found there is little merit to her argument.  In addition the Tribunal found there would be some prejudice to the wider public should the second extension application be granted.

2. In such circumstances the Tribunal is satisfied that, on balance, it is not proper to hear the application for review and the Tribunal will not grant the extension application.