Scovill and Child Support Registrar (Child support)

[2018] AATA 4893

Scovill and Child Support Registrar (Child support) [2018] AATA 4893 (20 November 2018)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2018/SC015127

APPLICANT:  Ms Scovill

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:               20 November 2018

APPLICATION:

An extension application made on 28 September 2018 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 31 July 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 - no merit - 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 Scovill and Mr Scovill are the parents of Tara and Emily. By letter dated 31 July 2018, the Child Support Agency (CSA) wrote to Ms Scovill to advise that her objection to a “change of assessment” decision on 1 May 2018 had been allowed in part.

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 Scovill was required to make her application within 28 days of receiving the decision letter of the objections officer dated 31 July 2018.

3. Ms Scovill made application for AAT first review on 28 September 2018, outside the 28-day period. In her written application to the Tribunal, Ms Scovill advised that: “I am a full time working mum with children 80% of time. I understood [the] workplace to be valid. I didn’t agree with the decision however time lapsed before I realised.” (unedited)

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 (Gallo) 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 Pty Ltd v Cohen (1984) 3 FCR 344, the Tribunal proposes to consider the matters identified in Gallo 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. In the absence of a reasonable explanation for the delay, an extension of time will not usually be granted.

2. Ms Scovill’s explanation for the delay is not compelling. Many parties to objection decisions are employed and have caring responsibilities. The CSA correspondence clearly advised Ms Scovill of the 28-day time limit to bring an application to the Tribunal.

3. The absence of a satisfactory explanation for the delay is a very material factor weighing against the granting of an extension of time.

Merits of the objection

1. Departure determinations, by their very nature, involve a relatively high degree of discretion. Whilst the CSA decision, on its face, appears reasonable on the available evidence, it cannot be suggested any application by Ms Scovill, if permitted to proceed, would be devoid of possible merit.

Potential prejudice to Mr Scovill

1. The Tribunal finds this factor weighs against granting an extension of time.

2. Mr Scovill may suffer prejudice if an extension of time was granted. He was entitled to rely and budget on the assessment in the absence of an application by Ms Scovill within the 28-day period.

Public interest considerations

1. 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

1. The Tribunal does not consider Ms Scovill has a satisfactory explanation for what is not an insignificant delay. This may potentially be unfair to Mr Scovill, who has been entitled to rely on the assessment.

2. In weighing all the relevant factors, the Tribunal concludes that the interests of justice are best served by refusing to grant an extension of time.

3. The Tribunal observes it is open for Ms Scovill, at any time, to approach the CSA and make a fresh application for a “change of assessment” on the basis of new evidence or a material change in circumstances.