Oakes and Child Support Registrar (Child support)

[2019] AATA 1221

Oakes and Child Support Registrar (Child support) [2019] AATA 1221 (19 March 2019)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2019/BC015772

APPLICANT:  Ms Oakes

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                19 March 2019

APPLICATION:

An extension application made on 16 January 2019 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 15 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 - no satisfactory explanation for the delay - not devoid of merit - prejudice to the other parent - 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 Oakes and [Mr A] are the parents of [Child 1]. By letter dated 15 February 2018, the Child Support Agency (“CSA”) wrote to Ms Oakes to advise her that [Mr A]’s objection to an original decision made on 24 November 2017 had been disallowed. 

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”).  Ms Oakes was required to make her application within 28 days of receiving the decision letter of the objections officer dated 15 February 2018.

3. Ms Oakes made application for AAT first review on 16 January 2019, well outside the 28 day period. In her written application to the Tribunal, Ms Oakes advised the following (unedited):

   When this decision was handed down, I had contacted Child Support and voiced my concerns regarding the inacuracies of the income used for my ex husband. I was told because he has a company, child services were only able to use some of the income and not all of the income, as companies are calculated in a different way to standard wages. Because Child Support had told me this I beleived it to be true and there would be no point wasting everyones time lodging an objection. It was only yesterday I learned, from contacting [a named] MP's Office this is not the case and it is part of the Act the WHOLE of a company income can be used as income for an individual when that individual is the sole proprietor and secretary of the company, which is the case with my ex husband. I beleive from the Ministers office the AAT has the capacity to grant an extension for up to 18 months if the reasoning for the extension is valid. I was misinformed about my rights from Child Services on 2 occasions when I enquired about the rules and regulations of individulas hiding income in Companies. My ex husbands income was set in this initial decision as $47,889, when his tax return states it is $67892, in the deductions from his business fringe benefits include personal expendature such as Rego, fuel, maintence, phone, insurance as these were all run under deductions for the buisniess.

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 P/L 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

1. The delay here is extraordinarily long. The correspondence sent to Ms Oakes notifying her of the objection decision very clearly advised her of her right to apply for review by the Tribunal within 28 days.

2. In the absence of a satisfactory explanation for the delay, an extension will not normally be granted. Ms Oakes’s explanation for not exercising her right of review is not compelling; she made her own assessment at the time that it was not worth pursuing the matter any further. She has effectively rested on her rights. The Tribunal observes the delay here is not a matter of mere days or weeks.

3. This factor weighs very heavily against granting an extension of time.

Merits of the objection

1. In the Tribunal’s assessment, the CSA decision appears entirely reasonable on the evidence available to it at the time. Nevertheless, given the width of the discretion in these sorts of cases, it cannot be said that any application would be devoid of merit. 

Potential prejudice to [Mr A]

10.The Tribunal is particularly concerned about the potential prejudice [Mr A] may suffer if an extension of time was granted given the extraordinary delay. He was entitled to rely on the decision in the absence of an objection by Ms Oakes within the 28-day period.

Public interest considerations

11.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

12.The Tribunal does not consider Ms Oakes has a compelling explanation for the very lengthy delay. This is a very material factor.  The Tribunal is also particularly concerned about prejudice to [Mr A] who has been entitled to rely on the decision as final since February 2018.

13.The Tribunal concludes that the interests of justice are clearly best served by refusing to grant an extension of time.