NQVD and Child Support Registrar (Child support second review)

[2023] AATA 1103

NQVD and Child Support Registrar (Child support second review) [2023] AATA 1103 (17 March 2023)

Division:GENERAL DIVISION

File Number(s):      2022/9715

Re:NQVD

APPLICANT

AndChild Support Registrar

RESPONDENT

AndZNQK

OTHER PARTY

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:17 March 2023

Place:Sydney

The Applicant’s application for an extension of time to lodge her application is granted.

................................[SGD]........................................

The Hon. John Pascoe AC CVO, Deputy President

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

PRACTICE AND PROCEDURE – application for an extension of time – application for review of a decision of the Social Security and Child Support Division – where the application is one day out of time – whether the is any adequate explanation for the delay – whether the grant of the extension of time would prejudice the Other Party – whether the application has prospects of success – application for extension of time granted

LEGISLATION

Administrative Appeals Tribunal Act 1978 (Cth) s 29

CASES

Hunter Valley Developments Pty Limited & Ors v Minister of Home Affairs and Environment (1984) 58 ALR 306

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

17 March 2023

BACKGROUND

1.I note the Respondent’s submissions contain a helpful factual summary of this application, much of which is replicated below.

1. On 8 August 2022, the Other Party lodged an application with the AAT1 seeking review of a decision of the Child Support Registrar.

2. On 10 October 2022, the AAT1 held a hearing by telephone and heard evidence from

   both the Other Party and the Applicant.

3. On 10 October 2022, the AAT1 set aside the reviewable decision, and in substitution

   decided, in respect of the children:

   (a)the existing percentage of care determination of 30% to the Other Party is revoked from 6 March 2022 and replaced with a new percentage of care determination of 99% applying from 7 March 2022; and

   (b)the existing percentage of care determination of 70% to the Applicant is revoked

   from 31 December 2021 and replaced with a new percentage of care

   determination of 1% applying from 1 January 2022;

   (c)There is no change to the Child Support Agency’s decision that new percentage

   of care determinations of 40% to the Other Party and 60% to the Applicant applying from 28 March 2022.

4. Notice of the AAT1 decision and written reasons was sent by the AAT1 by registered

   post to the Applicant on 17 October 2022.

5. On 26 October 2022, the Registrar notified the Applicant of the change of her

   percentage of care in accordance with the AAT1 decision dated 10 October 2022. The
   letter indicated that if the Applicant did not agree with the AAT's decision, she had 28
   days from the date she received the decision to appeal to the AAT for a second
   review.

6. On 3 November 2022, the Applicant lodged another application for review with the

   AAT1.

7. On 24 November 2022, the Applicant lodged an application for review of the AAT1

   decision with the General Division of the Administrative Appeals (AAT2). The
   application for second review was lodged more than 28 days after notice was given of
   the AAT1 decision.

   ISSUE

8. The issue before the Tribunal is whether to grant an extension of time for the lodgement of the Applicant’s application for review in the General Division of the Tribunal.

   THE LAW

9. Section 29(7) of the Administrative Appeals Tribunal Act 1978 (Cth) permits the Tribunal to extend the time for lodgement of an application for review ‘if the Tribunal is satisfied that it is reasonable in all the circumstances to do so’.

   REASONS FOR DECISION

10. The principles in relation to whether or not the Tribunal should grant an extension of time to lodge an application are well understood, and clearly outlined in Hunter Valley Developments Pty Limited & Ors v Minister of Home Affairs and Environment (1984) 58 ALR 306. In this matter, namely:

    (a)The length of delay;

    (b)The Applicant’s awareness of appeal rights and explanation for the delay;

    (c)The prospects of success if the extension of time is granted;

    (d)Any prejudice to the Respondent or the Other Party if the extension of time is granted;

    (e)Fairness between the Applicant and others in a similar position.

11. In the current application the first matter to be considered is the length of the delay. It was a period of one day. Whilst this is not of itself determinative, it is important to understand why the application was 1 day out time. The Applicant told the Tribunal that she had in fact sought to file an application prior to the relevant date, but that her ‘application’ had been rejected by the Tribunal as it was incorrect. After receiving guidance from the Tribunal, the Applicant filed her application in the correct form, but by which time it was out of date.

12. It is therefore quite clear that the Applicant understood that she had a right of appeal, that she sought to exercise that right, and that her application would have been filed within the period had it not been for her having mistaken the administrative requirements of the Tribunal.

13. Turning to the prospects of success, it is hard to make an assessment given the very limited material before the Tribunal. However, it appears that there is at least the prospect of new evidence being produced, which the Respondent has noted could result in a different decision being made.

14. The Respondent has submitted that they would not be prejudiced by the grant of an extension of time. However, in my view, there is some detriment to the Other Party, who appears to have done his best to comply with his child support obligations. Clearly it is detrimental to him to be caught up in ongoing litigation, and it is important that parties to these disputes understand that they are unlikely to be in the best interests of their children.

15. It is, in my view, likely that others in a similar position to the Applicant would be granted an extension of time, especially if they had made genuine efforts to file an application within the time period, and there was some prospect of success.

16. Having considered all of relevant factors, I am of the opinion that the Applicant should be granted an extension of time for the filing of her application. She made a genuine effort to file within the requisite period, there may be new evidence which could result in a different decision, and while there is some inconvenience to the Other Party, that is not enough to outweigh other factors. In my view, it would be generally fair to grant the application.

17. Accordingly, the Applicant’s application for an extension of time to lodge her application for review is granted.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

.............................[SGD]........................................

Associate

Dated: 17 March 2023

Date(s) of hearing:	14 March 2023
Applicant:	In person
Solicitors for the Respondent:	Margaret Gosopoulos
Other Party:	In person