Summers and Child Support Registrar (Child support)

[2019] AATA 5422

Summers and Child Support Registrar (Child support) [2019] AATA 5422 (18 November 2019)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2019/SC017229

APPLICANT:  Mr Summers

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:               18 November 2019

APPLICATION:

An extension application made on 23 August 2019 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 28 February 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 delay - little merit - 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 Mr Summers for an extension of time to apply to the Tribunal against a decision of the Child Support Agency (CSA) dated 28 February 2019. The CSA decided to disallow Mr Summers’ objection to an earlier decision which found that there were no grounds to depart from the child support formula.  

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. Mr Summers was required to make his application within 28 days of receiving the decision posted to him on 28 February 2019.

3. Mr Summers made an application for AAT first review on 23 August 2019, well outside the 28-day period. In his written application to the Tribunal, he advised the following :

   All dealings with child support cause me unnecessary anxiety and depression. I try to avoid all contact with this Department. All Government contacts cause mental health problems.

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. Mr Summers was clearly advised of his right of appeal to the Tribunal. Notwithstanding the broad mental health issues he raises, it appears to the Tribunal Mr Summers effectively elected not to pursue the matter at the time and has rested on his rights. The absence of a compelling explanation for what is a very lengthy delay weighs 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.

2. The CSA decision appears to have been entirely reasonable; Mr Summers appears to be seeking some form of redress in relation to the sale of shares from a family law property division. Property division issues are entirely separate to ongoing child support assessments.

10.In the Tribunal’s assessment, Mr Summers’ application, if permitted to proceed, would have no reasonable prospects for success.

Potential prejudice to the other party

11.The Tribunal is particularly concerned about potential prejudice to the other party. She has been entitled to rely, and budget, upon the decision in the absence of an objection within the 28-day period. The Tribunal observes the delay here is lengthy. This factor weighs very heavily against an extension.  

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.Mr Summers does not have a reasonable explanation for the delay. His application would be unlikely to succeed, and the Tribunal is also particularly concerned about the possible prejudice to the other parent.

14.The Tribunal considers the interests of justice are clearly best served by refusing to grant an extension of time.