Setchell and Child Support Registrar (Child support)

[2020] AATA 2143

Setchell and Child Support Registrar (Child support) [2020] AATA 2143 (31 March 2020)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2020/BC018352

APPLICANT:  Mrs Setchell

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:               31 March 2020

APPLICATION:

An extension application made on 6 February 2020 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 3 May 2019 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 lengthy delay – not devoid of merit – prejudice to the other parent due to long delay - extension of time refused

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted 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. This is an application by Mrs Setchell for an extension of time to apply to the Tribunal for review of a decision of the Child Support Agency (CSA) dated 3 May 2019. The CSA decided to allow in part Mr Setchell’s objection to a “change of assessment” decision.

2. There is a time limit to apply for “AAT first review”: see section 90 of the Child Support (Registration and Collection) Act 1988 and paragraph 29(1)(d) of the Administrative Appeals Tribunal Act 1975. Mrs Setchell was required to make her application within 28 days of receiving the decision of 3 May 2019.

3. Mrs Setchell made an application for AAT first review on 6 February 2020, well outside the 28-day period. In her written application to the Tribunal, Mrs Setchell advised the following in relation to the delay:

   Mr Setchell has wilfully told an untruth and sworn a false oath. I have been experiencing emotional strain due to being under extreme financial hardship.

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 absence of a reasonable explanation for delay will ordinarily exclude the granting of an extension of time.

2. Mrs Setchell has not presented a reasonable explanation for not bringing her application within 28 days. Rather, she raises issues of Mr Setchell’s credibility, and general issues concerning emotional and financial pressures, not uncommon in child support matters. She was clearly advised of her right to apply for review to the Tribunal within a 28-day period.

3. The absence of a reasonable explanation for what is a lengthy delay weighs very heavily against granting an extension.

Merits of the objection

1. There is no point to granting an extension of time if an application is unlikely to succeed.

10.“Change of assessment” decisions afford a decision-maker a relatively broad discretion. Whilst the CSA decision appears reasonable on the evidence available to it, it cannot be said any application, if permitted to proceed, would be devoid of possible merit.

Potential prejudice to the other party

11.The Tribunal is concerned about the possible prejudice to the other party who has been entitled to rely upon the decision in the absence of a timely application. The delay here is particularly lengthy. This factor weighs against an extension being granted.   

Public interest considerations

12.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

13.Mrs Setchell does not have a reasonable explanation for the delay. The Tribunal is particularly concerned about the possible prejudice to the other party given the protracted delay.

14.In weighing up all of the above, the Tribunal considers the interests of justice are best served by refusing to grant an extension of time.