PQPD and Child Support Registrar (Child support second review)

[2023] AATA 2675

PQPD and Child Support Registrar (Child support second review) [2023] AATA 2675 (23 August 2023)

Division:GENERAL DIVISION

File Number(s):      2022/3750

Re:PQPD

APPLICANT

AndChild Support Registrar

RESPONDENT

AndKJKH

OTHER PARTY

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:23 August 2023

Place:Sydney

The decision of the Social Services and Child Support Division of the Tribunal dated 7 December 2021, refusing to grant an extension of time, is affirmed.

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

Emeritus Professor P A Fairall, Senior Member

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 (Cth).

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time application – child support assessment determination – reasons for delay – prospects of success – prejudice – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Child Support (Assessment) Act 1989 (Cth)

Child Support (Registration and Collection) Act 1988

CASES

Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344

Re Johnson and Commonwealth [1990] AATA 1

REASONS FOR DECISION

Emeritus Professor P A Fairall, Senior Member

23 August 2023

1. The Applicant (father) and the Other Party (mother) are the parents of a child born in 2007. The parents are registered with the Child Support Agency. The father wishes to dispute an objection decision made by the Child Support Registrar (the Registrar) and communicated to him by ordinary post on 26 February 2020.

2. The father’s application for review of the objection decision, was received by the Administrative Appeals Tribunal (Social Services and Child Support Division) (AAT1) on 30 September 2021.[1]

   [1] T4, 89.

3. Under the relevant statutory provisions, an application for review must be lodged within 28 days of the applicant receiving notice of the decision.[2] The father’s application, which included an application for an extension of time, was therefore more than 17 months late.[3]

   [2] Child Support (Registration and Collection) Act 1988 (Cth) (R&C Act), section 90; Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), subsection 29(2).

   [3] To be precise, 1 year 5 months and 20 days (538 days).

4. If the period for applying for AAT first review has ended, a person may request consideration of the application despite the period ending.[4] The extension application must state the reasons for the person’s failure to apply for the review within the period.[5] On 7 December 2021, the AAT1 refused to grant an extension of time.

   [4] R&C Act, subsection 91(1).

   [5] R&C Act, subsection 91(2).

5. An application may be made for AAT second review of an AAT1 decision under section 92 of the Child Support (Registration and Collection) Act 1988 (Cth) (R&C Act) to refuse an extension of time.[6] On 10 May 2022, the father lodged an application to the Tribunal for second review.

   [6] R&C Act, paragraph 96A(a).

6. The matter was heard by the Tribunal on 11 August 2023. The Respondent was represented by Ms E. Smith, a solicitor employed by Services Australia. The Respondent filed documents under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth), (the T docs), and a Statement of Facts, Issued and Contentions dated 3 April 2023.

7. The Applicant provided a written statement in support of his application together with accompanying documents. The Other Party did not provide any additional materials.

8. The Applicant and the Other Party gave evidence by videoconference in a bifurcated hearing.

   CONSIDERATION

9. The issue in these proceedings is whether it is reasonable in all the circumstances to grant the Applicant an extension of time. I have decided not to grant an extension of time, for the following reasons.

10. The general principles relating to the exercise of the discretion to grant an extension of time were articulated by Wilcox J in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 (Hunter Valley). Important factors include the reasons for delay, the prospects of success in the substantive application, and potential prejudice to parties affected by the grant of an extension of time.

    Reasons for the Delay

11. The Registrar noted that while it could not be said that the Applicant’s proposed appeal had no prospect of success, the delay in the present case was considerable.

12. In response to questions put by Ms Smith, the Applicant conceded that he had ‘probably’ received the letter dated 26 February 2020 from the Registrar advising the outcome of his objection. He had not opened it because he had other priorities. He said that he had three stepchildren in addition to the child he shares with the Other Party. He had been dealing with various court matters that required his urgent attention and contributed to mental health issues. He also mentioned that from May 2021 he had caring responsibilities for a third party. Moreover, he had suffered a workplace injury some years ago that caused occasional pain. Further, he did not realise the urgency of the situation, assuming that any discrepancy between actual earnings and estimated income would be retrospectively adjusted.

13. When asked whether anything had prompted him now to challenge the objection decision, he said that he was spurred to act by the decision of the Child Support Agency to take money from his account. He had not appreciated that this was a possible outcome.

14. I am not satisfied that the Applicant has provided a reasonable or satisfactory explanation for a delay of 538 days in making an application.

    Prejudice to the Other Party

15. The Other Party said that she had responded to the original objection in a timely and thorough manner and did not see why the matter should be reopened after such a long time. She was potentially prejudiced by a decision to grant the extension of time, which might lead to a further adjustment of the objection decision.

16. The Respondent noted the potential prejudice to the Other Party, while accepting that the Registrar would not suffer any prejudice if an extension were granted.

    Prospects of success

17. The Applicant said that he was only challenging the period covered by the 2019-2020 tax year. He gave evidence that his actual taxable income during that period had fallen to zero, because of the impact on his business of the pandemic and lockdowns. The income estimated by the Registrar pre-dated the impact of the pandemic. In his view, the Registrar had substantially overestimated his actual taxable income. He wanted the matter sorted out fairly and had no desire to avoid his financial childcare obligations. The Tribunal has little reason to doubt the veracity of the Applicant’s statements here. However, the Tribunal was not referred to any documentary evidence on which the prospects of success could be confidently assessed, independently of the Applicant’s evidence.

18. The Other Party conceded that there may have been some discrepancy between actual and estimated earnings but had no way of knowing what the discrepancy might be.

19. The Respondent accepted that it could not be said that the Applicant’s substantive application was devoid of prospects of success.

    CONCLUSION

20. In the Tribunal’s view, it is unfortunate that these matters were not brought to a head in a timely manner. Although it cannot be said that there are no prospects of success, the length of the delay, the lack of a reasonable explanation, and the potential prejudice to the Other Party, are factors that weigh heavily against the grant of an extension of time.

21. It should be emphasised that the need to comply with deadlines is not an optional task for litigants before the Tribunal. In Hunter Valley, Wilcox J said that the period of 28 days is not to be ignored. His Honour wrote, ‘indeed it is the prima facie rule that proceedings commenced outside the period will not be entertained.’[7] In this case I consider that it would be neither proper nor just to grant the extension sought.

    [7] See also Re Johnson and Commonwealth [1990] AATA 1 at [19].

    DECISION

22. The decision of the Social Services and Child Support Division of the Tribunal dated 7 December 2021, refusing to grant an extension of time, is affirmed.

I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

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

Associate

Dated: 23 August 2023

Date(s) of hearing:	11 August 2023
Applicant:	In person
Solicitors for the Joined Party:	Ms E. Smith, Services Australia
Other Party:	In person