RQBM and Child Support Registrar (Child support second review) - [2024] AATA 3354

RQBM and Child Support Registrar (Child support second review) [2024] AATA 3354 (19 September 2024)
Division: General Division
File Number(s): 2024/6084
Re: RQBM
APPLICANT

AndChild Support Registrar
RESPONDENT

And TFWR
OTHER PARTY

DECISION
Tribunal:Member D Murphy
Date:19 September 2024
Place:Brisbane

Pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975, the Tribunal extends the time for the making of an application for review of the decision of the Social Security and Child Support Division dated 21 June 2024 to 13 August 2024.
………………[SGD]………………..
Member D Murphy

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
Child Support Law – Extension of Time – factors that are relevant when considering whether to grant an extension of time for the filing of an application – where Child Support Register advised Applicant of internal review rights to review decision made by the Social Security and Child Support Division – length of delay – awareness of appeal rights – prospects of success – whether any prejudice to Respondent or Other Party – extension of time granted
Legislation
Administrative Tribunal Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Cases
DHLD and Executive Director, Social Security Appeals Tribunal [2010]AATA 377
Hunter Valley Developments Pty Ltd v Cohen; Minister of Home Affairs and Environment [1984] 3 FCR 344
REASONS FOR DECISION

Member D Murphy
19 September 2024

The applicant, RQBM, seeks an extension of time until 13 August 2024 to make an application for review of a decision of the Social Security and Child Support Division (SSCSD) dated 21 June 2024 (the reviewable decision).
The reviewable decision set aside a decision of the Child Support Registrar (CSR) to allocate 100 percent care to RQBM in relation to a child and substituted a determination that from 20 April 2023, RQBM provided 60 percent care of the child and TFWR, the father of the child, provided 40 percent care. The percentage of care attributed to TFWR was based entirely on financial contributions which ceased on 2 August 2023.
TFWR opposed the grant of an extension of time. The CSR neither opposed nor consented to the application. The CSR filed a submission which attached records of communications between the CSR and RQBM, which confirmed the explanation provided by RQBM for her delay in making the application for review.
I have to consider whether it is reasonable in all the circumstances to grant the extension of time.[1]
[1] See section 29(7) of the Administrative Appeals Tribunal Act 1975 and to the considerations expressed in Hunter Valley Developments Pty Ltd v Cohen; MinisterofHome Affairs and Environment [1984] 3 FCR 344, 348-9 as applied in DHLD and Executive Director, Social Security Appeals Tribunal [2010] AATA 377, [37]-[45].
The length of the delay in applying for review
On 24 June 2024 the Tribunal sent a copy of the reviewable decision to RQBM with a covering letter informing RQBM that:
oshe could apply to the Tribunal for second review of the reviewable decision; and
othere are time limits for the filing of an application for review or an appeal (28 days after giving of the document setting out the terms of the reviewable decision).
Pursuant to section 29(2) of the Administrative Tribunal Act 1975 (Cth) an application for review of the reviewable decision was required to be lodged by 24 July 2024, being 28 days after the review decision was given to the applicant.
The application for review was filed 48 days after RQBM received the review decision; that is 20 days late.
Awareness of appeal rights and explanation for delay
RQBM acknowledged receiving and reading the reviewable decision on Saturday 6 July 2024. She also recalled receiving the information contained in the Tribunal’s cover letter about the time limit for making a review application.
While RQBM acknowledged having access to the nominated email account at the time the reviewable decision was sent to her, RQBM’s recollection was that she received the reviewable decision by mail. Nothing turns on this.
RQBM had a serious car accident in February 2023 where she was hospitalised for more than two months. RQBM informed the Tribunal that she has no sight in her left eye and affected sight in her right eye. RQBM uses glasses when reading documents and she can request assistance from another family member to read documents to her. RQBM also recalled reading paragraph 39 of the reviewable decision, which noted that:
oTFWR had ceased providing financial support for the child on 2 August 2023;
othis could provide the basis of a further change in care for the child; and
olegislation deals with any such potential change of care by requiring either parent to notify the CSR so that a new care percentage decision can be considered and made if required.
File notes supplied by the CSR[2] confirm that at 11.09am on Monday 8 July 2024, RQBM had a conversation with the CSR about a re-assessment of the percentage care of the child. In that telephone conversation, a CSR officer informed RQBM that she had internal objection rights and informed RQBM to download the objection form from the CSR website and to lodge an objection with the CSR if she was unhappy with the assessment.
[2] See attachment C to the CSR outline of submissions.
The CSR also supplied the Tribunal with a letter dated 5 July 2024 CSR sent to the applicant[3] which said that CSR were told on 12 May 2023 that the care of the child changed on 20 April 2023 to a 60/40 percentage allocation; and that if the applicant thought that decision was incorrect, she could ask the CSR to review the decision within 28 days from the date RQBM received the CSR letter.
[3] See attachment A to the CSR outline of submissions.
RQBM gave evidence that she lodged an objection with CSR with supporting documentation. On 13 August 2024 RQBM telephoned the CSR to follow up the objection. The CSR file notes record that the CSR officer who spoke with RQBM that day identified that the change in percentage care decision was in fact made by the Tribunal on 21 June 2024 and not by the CSR on 12 May 2023. The CSR officer apologised to RQBM; informed her that the advice given to her by CSR to lodge an objection with CSR was incorrect; and that that RQBM should contact the Tribunal immediately.
RQBM immediately contacted the Tribunal and filed an online application for review of the reviewable decision, including an application for an extension of time until 13 August 2024 to make the application for review.
TFWR submitted that RQBM should have followed the instructions in the covering letter sent by the Tribunal on 24 June 2024, which said that an application for review had to be filed within 28 days after the review decision was given to her, rather than the CSR advice.
The CSR acknowledged in its outline of submissions that it incorrectly informed RQBM in writing and orally that she had objection rights in relation to the percentage care decision that did not exist.
I accept that the written and oral CSR advice that was about the same percentage allocation of care that was the subject of the Tribunal’s reviewable decision confused RQBM about the method of reviewing that decision. I accept her explanation for her delay in filing the application for review in the Tribunal within the prescribed period of time.
Upon being informed of the correct information, RQBM acted in a timely manner to pursue her right of review before the Tribunal. She has not rested on her rights.
Prospects of Success of RQBM’s application for review
19.RQBM and TFWR each submit that the reviewable decision was wrong in that it was too generous to the other party. A decision as to whether pre-existing percentage of care determinations for parties to a child support case are to be revoked and new percentage of care determinations apply requires findings of fact to be made as to the actual care of the children occurring and related matters. As a second tier Tribunal review is a fresh review by a new decision maker, it cannot be said that there are no prospects of success for the second tier Tribunal review.
A second tier Tribunal review also provides the decision maker with options in relation to whether it is appropriate to take a ‘point-in-time approach’ or to consider the pattern of care the parents actually had in the care period.
Other rights of review available
21.An application for review of the reviewable decision will be the only opportunity to revisit the percentage care determinations for the care period commencing 20 April 2023.
Prejudice
The CSR accepts it has suffered no prejudice from the delay of 20 days in making the review application. TFWR submitted that the 20-day delay has resulted in him being required to attend an interlocutory hearing to determine the application for an extension of time. I am not satisfied that granting an extension of time will cause prejudice to any party.
What the justice of the case requires
The delay of 20 days in filing the review application is relatively short. The explanation provided for that delay in filing the review application is acceptable. The review application has prospects of success and there is no other way in which review may be sought of the reviewable decision. There is also an absence of prejudice occasioned to any party by the delay in filing the application.
I am satisfied that is reasonable in all the circumstances to grant an extension of time for RQBM to lodge an application for review of the reviewable decision.
DECISION
Pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975, the Tribunal extends the time for the making of an application for review of the decision of the SSCSD dated 21 June 2024 to 13 August 2024

I certify that the preceding 24 (twenty-four) paragraphs are a true copy of the reasons for the decision herein of Member D Murphy
.......................[SGD].....................
Associate

Date of Decision 19 September 2024

Date of hearing: 12 September 2024

Applicant:

Solicitors for the Respondent:

Other Party

Self-represented

Donna Smith
Services Australia

Self-Represented