Smedley and Child Support Registrar (Child support)
[2024] ARTA 214
•18 October 2024
Smedley and Child Support Registrar (Child support) [2024] ARTA 214 (18 October 2024)
Applicant/s: Ms Smedley
Respondent: Child Support Registrar
Tribunal Number: 2024/MC028497
Tribunal: Senior Member J Longo
Place:Melbourne
Date:18 October 2024
Application: An extension application made on 30 August 2024 asking the Tribunal to consider the application for an eligible social services decision (first review) of the Child Support Registrar on 16 June 2023 despite the period for applying for review having ended.
Decision:The extension application is refused.
CATCHWORDS
CHILD SUPPORT – application for extension of time – lengthy delay – effects of PTSD – prejudice to the other parent – 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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.
Statement of Reasons
BACKGROUND
On 18 January 2023, a delegate of the Child Support Registrar (the Registrar) advised Ms Smedley by letter of a decision to make a departure determination as follows:
For the period 1 November 2022 to 31 January 2024, the adjusted taxable income of [Ms A] is set at $42,500.
For the period 1 November 2022 to 31 January 2024, the adjusted taxable income of Ms Smedley is set at $105,000.
On 1 June 2023, Ms Smedley lodged an objection to the decision made on 18 January 2023, together with an extension of time application. On 16 June 2023, the Registrar refused to grant an extension of time to lodge the objection.
On 30 August 2024, Ms Smedley lodged a request for review, including an application for an extension of time with the Administrative Appeals Tribunal (the Tribunal). Ms Smedley provided a written statement as to why she failed to request review of the decision within 28 days of receipt of the decision.
From 14 October 2024, the Administrative Appeals Tribunal (ART) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the ART that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the ART. This decision and statement of reasons is made by the Tribunal.
The issue to be considered is whether Ms Smedley should be granted an extension of time to lodge an application for review of the Registrar’s decision.
CONSIDERATION
The law relating to a person’s right to seek review of a decision of the Registrar is contained in section 18 of the Administrative Review Tribunal Act 2024 (the ART Act). Subsection 18(3) of the ART Act requires that a person must lodge a review request with this Tribunal within 28 days after a notice of the decision of the Registrar is served on them.
Where the period for lodgement has ended, the person may send the application to the Tribunal along with a request that the review be treated as if it was duly lodged, that is, that it was lodged within the allowed time (section 91 of the Child Support (Registration and Collection) Act 1988 (the Act)). This is commonly referred to as an extension of time request. Section 92 of the Act then provides that the Tribunal must consider the application for an extension of time, grant or refuse that application and advise the person of the decision in writing.
In this case, Ms Smedley was sent a notification on 16 June 2023 advising her of the decision made by the Registrar to refuse to extend the time to object to the earlier departure determination on 18 January 2023. Ms Smedley lodged an application for review with the Tribunal on 30 August 2024. As this request for a review of the decision was not lodged within 28 days, an application for an extension of time must now be considered.
the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, in dealing with an extension of time case and the general concept of time limitation periods, noted that while an extension of time is the exception to the general rule, there are legislative provisions which in the circumstances of the facts of an individual case, may indicate that justice is served by the general rule being overruled.
10.In making this decision, I have considered the principles for the exercise of a discretion to allow an extension of time as set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (Hunter Valley Developments). In that case the Federal Court said that an extension of time should not be granted unless it was proper to do so, noting that in general, applications or proceedings commenced outside of a prescribed time limit will not be considered. The Court also said that there must be an acceptable explanation for the delay and that it must be fair and equitable in the circumstances to extend time. The Federal Court identified six factors to take into account when deciding whether to grant an extension of time.
11.These principles have more recently been restated in the decision of her honour Collier J in Englezos v Secretary, Department of Social Services [2023] FCA 31. These authorities, Hunter Valley Developments and Englezos, clearly set out the well settled considerations when considering whether to exercise the discretion to allow an extension of time and the factors a decision-maker should consider and balance.
12.Ms Smedley’s written submissions state that the delay was affected by her ability to process information and deal with this information, due to the effects of PTSD, coupled with ‘escalation of symptoms due to experienced coercive and abusive behaviours from other parent during the child support period of 2021 through to current.’ The submissions further refer to other court proceedings relating to contact with Ms Smedley’s son and ongoing difficulties and behaviour relating to this contact. Ms Smedley further states that ‘everything is interrelated and the current status of child support is largely affected by the cumulative impacts of actions and decisions from the date the Respondent CS application was first received.’
13.These submissions, in my view, do not provide an acceptable explanation for the delay. I am satisfied that Ms Smedley was advised of her right to seek review with the Tribunal in accordance with subsection 87(3) of the Act. I note Ms Smedley was notified by post on 16 June 2023 that the extension of time was refused and advised in writing of this decision. The decision also included information as to further rights of review and the 28-day time limit. Ms Smedley sought review on 30 August 2024, more than 12 months after the decision was made by the Registrar. Ms Smedley’s submissions indicate she was experiencing difficulties during this time, but do not provide any reason that prevented her from seeking review of the decision by the Registrar with the Tribunal.
14.I find that Ms Smedley was advised of her rights of review and has not provided an acceptable explanation for the delay, given she was aware of her review rights and was advised, in writing, of these rights to seek review with the Tribunal.
15.Ms Smedley has not provided any submissions regarding the merits of her request for an extension of time to apply for review of the decision. Ms Smedley has referred to errors relating to the care percentages applied by the Registrar, the incorrect application of parenting orders and errors in debt figures. None of these were matters determined in the substantive decision on 18 January 2023. I have not conducted a substantive review of the decision however I am not satisfied that the application has merit, in that there is an arguable case.
16.I also find, given the length of time since the substantive decision was made, that it would be unfair in the circumstances to extend the time to lodge a request for review, particularly in the absence of an acceptable explanation for the delay. I find that there would be prejudice to the other party in this matter and, in addition, it would also constitute a prejudice to the community. I weigh the interest that all citizens have in effective public administration and that prospective applicants must adhere to statutory time limits in seeking review of administrative decisions as an important consideration in the granting of an extension of time. There is nothing in the submissions before me which persuades me that disturbing the finality of the decision making process would be a fair outcome in this matter.
17.I am therefore not satisfied it is reasonable in all the circumstances to grant the extension of time.
DECISION
The extension application is refused.
| Date(s) of hearing: | 18 October 2024 (on the papers) |
| Representative for the Applicant: | None |
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