QHGX and Child Support Registrar (Child support second review)

[2018] AATA 4217

QHGX and Child Support Registrar (Child support second review) [2018] AATA 4217 (12 November 2018)

Division:GENERAL DIVISION

File Number(s):      2018/4503

Re:QHGX

APPLICANT

AndChild Support Registrar

RESPONDENT

DECISION

Tribunal:Mark Hyman, Member

Date:12 November 2018

Place:Canberra

The extension of time is refused.

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Mark Hyman, 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.

Catchwords

PRACTICE AND PROCEDURE – extension of time – child support – percentage of care determination – considerations regarding applications for extensions of time – explanation of the delay – whether the applicant rested on his rights – prospects of success – prejudice to former partner – relative utility of an extension – extension refused

Legislation

Administrative Appeals Tribunal Act 1975, ss 28, 29
Administrative Decisions (Judicial Review) Act 1977¸ s 11
Child Support (Assessment) Act 1989, s 50

Evidence Act 1995, s 160

Cases

Commissioner of Taxation v Brown [1999] FCA 1198

Hunter Valley Developments v Minister for Home Affairs and Environment (1984) 58 ALR 305

REASONS FOR DECISION

Mark Hyman, Member

12 November 2018

1. This decision is about whether QHGX, the applicant, should be granted an extension of time to lodge an application for review of a decision by the respondent, the Child Support Registrar (the Registrar). The applicant has a daughter (who for privacy reasons will not be named in this decision), and in February 2017 the Registrar decided that the applicant and his former partner each had 50% care of their daughter. The applicant sought review and the decision was affirmed first by an objections officer from the Registrar and subsequently by this tribunal at first review. The latter decision was an oral decision made on 30 November 2017. Notice of that decision was sent on 1 December 2017.

2. On 10 August 2018 the applicant sent an email to the tribunal indicating a wish to have the decision further reviewed, and on 5 September 2018 lodged an application for an extension of time to 10 August 2018. The Registrar opposes the grant of an extension of time.

3. The tribunal held a hearing on 17 October 2018. The applicant appeared by telephone. The Registrar was represented by Ms Sally Moore, a departmental advocate, who appeared in person. The tribunal had available a limited amount of documentation: the applicant’s applications for review and for an extension of time; a bundle of material that the applicant provided before the hearing; further information that the Registrar had found in organisational records; and a submission from the Registrar.

   ISSUE

4. The only issue before the tribunal is whether the time permitted for lodging an application for review should be extended.

   LEGISLATIVE FRAMEWORK

5. Section 29 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) governs the process for making applications for review. Subsection 29(1) specifies (relevantly) that the application must be made within the prescribed time; subsection 29(2) provides that, subject to exceptions not presently relevant, the prescribed time is 28 days after the decision for which review is sought is given to the applicant. Subsection 29(7) provides that the tribunal may, on written application, extend the time for making an application for review if satisfied that “it is reasonable in all the circumstances to do so”. Subsection 29(9) allows the tribunal to ensure that a person affected by an application for an extension of time is notified of the application; and subsection 29(10) requires the tribunal to hold a hearing on an extension of time application if that application is opposed by whoever was notified under subsection 29(9).

6. Section 50 of the Child Support (Assessment) Act 1989 (the Child Support Act) provides for the determination of the percentage of care where a pattern of care has been established for a child. The Registrar is to determine the person’s percentage of care for an appropriate care period; the percentage must correspond to the actual percentage of care that the person has had, or is likely to have, during the care period. Subsequent sections set out the ways in which the Registrar can determine actual percentage of care. Detailed information regarding the actual pattern of care is needed if an existing care arrangement is to be displaced.

   CONSIDERATION

7. The discretion to grant an extension of time established by subsection 29(7) of the AAT Act is given in the broadest terms. Similar discretion is typically available to the courts. A body of case law has developed that sets out, non-exhaustively, the considerations that influence how the discretion is exercised. Among the best known of the cases dealing with these matters is Hunter Valley Developments v Minister for Home Affairs and Environment (1984) 58 ALR 305 in which Wilcox J set out a number of principles (that case related to an extension of time to seek judicial review of a decision under section 11 of the Administrative Decisions (Judicial Review) Act 1977 but the principles apply equally in present circumstances).These principles include:

   ·the starting position is that an application made outside time will not in general be entertained, so there must be an acceptable explanation for the delay;

   ·the applicant must not have “rested on his rights”; an attempt by the applicant to continue agitation of the matter will be to advantage and a shorter rather than longer delay before the application is lodged is therefore to the advantage of the applicant;

   ·any prejudice to the respondent or to other parties will militate against the grant of an extension, but mere absence of prejudice is not enough of itself to warrant a grant of extension;

   ·the merits of the substantial application are to be taken into account;

   ·fairness between the applicant and others in a similar position is also relevant.

8. The outline of the matters underlying the applicant’s review is taken from the tribunal’s decision at first review. The applicant had sole care of his daughter from 27 October 2015. On 18 January 2017 the applicant’s former partner made a request for a new care determination. The Department of Human Services – Centrelink (the Department) decided that the daughter was in shared care of her parents since 13 October 2016 on the basis of a Family Court order of that date, but the determination took effect on 18 January 2017, the date at which the applicant’s former partner had made her request. The applicant lodged an objection on the basis that his former partner’s share of actual care was not in accordance with the Court’s orders. The reason why his application was unsuccessful at first instance and on review is that he has been unable to supply persuasive evidence of the change in care for the relevant period. The tribunal at first review heard the matter with the applicant’s former partner absent, as she had not responded to invitations to be made a joined party.

   Delay and reasons for delay

9. The tribunal’s decision at first review, an oral decision, was made on 30 November 2017 and notice of decision was sent out the following day. Under subsection 29(2) of the AAT Act the period allowed for applications for review is 28 days, but the date from which that 28 days is reckoned depends on how the terms of the decision were conveyed to the applicant: if reasons for a decision are given in writing at the time of the decision, the time is reckoned from the day the terms of the decision are given (paragraph 29(2)(a)); if the decision does not set out reasons and a statement of written reasons is sought (such statements may be sought by an applicant under section 28 of the AAT Act), the period is reckoned from the day on which the written statement is given to the applicant (subparagraph 29(2)(b)(i)) or the day on which a notice is given to the applicant that a statement of reasons will not be supplied (subparagraph 29(2)(b)(ii)); and if no statement of reasons is supplied, the time is reckoned from the date on which the notice of decision is given to the applicant (subparagraph 29(2)(b)(iii)).

10. The applicant lodged his application for review on 10 August 2018, about eight months after the decision. He received an oral decision on 30 November 2017, and did not obtain written reasons under section 28 of the AAT Act; written reasons were provided, but only after he had lodged an application for second review (i.e. after 10 August 2018). At the time of his application no written reasons had yet been sent. It is therefore subparagraph 29(2)(b)(iii) that applies, and his 28-day period is calculated from the date the notice of decision is deemed to have been given to him, which (according to section 160 of the Evidence Act 1995) is four working days after it was posted, i.e. on 7 December 2017. His application for review, made on 10 August 2018, was therefore just over seven months out of time.

11. The applicant offered an explanation for the delay at the hearing. The essence of that explanation is that he had submitted various documents to the Registrar in the context of his first review, but that, through some misunderstanding or miscommunication, these documents did not reach the tribunal to support his case. He said that he tried “quite a lot” to advance his case, but that different organisations (the Registrar, the Department of Human Services – Centrelink) gave him conflicting information and lost his documentation. He had even tried to engage Members of Parliament in the issue (he did not identify which Members he had approached). He said that he thinks he has a strong case and wishes to pursue it in order to recover funds that otherwise would have come his way. He is not used to dealing with tribunals and was unsure of how to best advance his matter.

12. The Registrar argues that the applicant was advised of his review rights in the notice of decision from the tribunal at first review. Yet he did not advance his case until a long period had passed. In the circumstances it must be concluded that he slept on his rights. He had offered no explanation of the delay (up to the time of the Registrar’s submission).

13. The applicant is clearly someone for whom engagement with the bureaucracy and with tribunal processes presents some challenges. Yet the delay in making his application was great, and it is difficult to accept that over a period of eight months he continued to agitate this matter, given that there is no record of his contacting the tribunal until the period in which the application was lodged. My conclusion is that the applicant has slept on his rights and has offered an inadequate explanation for the delay.

    Prospects of success

14. The applicant has provided various documents in support of his substantive case. These comprise:

    ·enrolment records from the school where his daughter was enrolled from the beginning of 2017;

    ·a statement by the school, dated 27 July 2018, to the effect that the applicant is the primary carer for his daughter; he is the one who brings her to school and collects her and is the school’s contact for her care; if his former partner comes to the school she signs in as a visitor; and

    ·statements from the applicant’s mother (undated) and from a person with whom he shares or shared accommodation (dated 18 June 2017), supporting his claim to be his daughter’s primary carer.

15. These documents all support the applicant’s claim, but they are of limited assistance to him. None of the documents relate to the care period for which the decision was taken; and little weight can be given to statements by family and friends.

16. As the Registrar notes, it is not appropriate to test the evidence provided through any kind of preliminary hearing on the merits (see for example Commissioner of Taxation v Brown [1999] FCA 1198). The applicant said at the hearing that he had relocated to a new town around the period covered by the decision, and it is therefore more difficult for him to substantiate his actual level of care.

17. It is possible that the applicant could put together a believable case, but it seems very unlikely. On what has been presented up to this point, taking the applicant’s case at the highest, I cannot see that it is arguable. The applicant’s prospects of success are poor.

    Prejudice

18. The Registrar has argued that an extension of time would prejudice the applicant’s former partner, in that she may have assumed the matter was settled and no longer kept any evidence that would support her case. I note that at first review she did not respond to invitations to be joined to the matter, so perhaps the argument is not so strong. But people’s interests and circumstances change, and it is certainly not guaranteed that the applicant’s former partner has no continuing interest in her daughter and her care. That is an additional reason for caution regarding an extension of time.

19. The Registrar also suggested that there is prejudice against others affected by reviewable decisions in that the deadlines in section 29 of the AAT Act are set for good reason. I cannot see this as an additional area of prejudice, in that the interests of the wider community and the tribunal form part of the considerations that are taken into account in deciding an extension application.

    Other considerations

20. The Registrar has noted that the applicant can seek a new care determination at any time, and has suggested that this suggests that the extension of time application is of limited utility. It is plainly the case that the applicant could remedy any current issue regarding percentage of care by requesting a new care determination from the Registrar; but it is my understanding that he is eager to recover child support payments from the period since January 2017. In that respect, a new care determination would be useful for the present and future, but not for the past.

    CONCLUSION

21. The applicant has slept on his rights; he has offered an unpersuasive explanation for the delay in making an application for review; his prospects of success are poor; and an extension, if granted, could conceivably put his former partner at an unfair disadvantage. The authorities encourage decisions in extension of time applications to consider what the justice of the case demands. It seems likely to me that there was a change in the pattern of care for the applicant’s daughter, and if he were able to document that change he would have a case; but I am unconvinced that he could do so, and he has fatally weakened his position by the very long delay in lodging his application. Taking all these matters into consideration, my conclusion is that an extension of time should not be granted.

22.     I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Member Mark Hyman

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Associate

Dated: 12 November 2018

Date(s) of hearing:	17 October 2018
Applicant:	By telephone
Solicitors for the Respondent:	Ms Sally Moore, Department of Human Services