The Father and Child Support Registrar (Child support second review)

[2015] AATA 632

The Father and Child Support Registrar (Child support second review) [2015] AATA 632 (31 July 2015)

Division	General Division
File Number(s)	2015/1516
Re	The Father
APPLICANT
And	Child Support Registrar
RESPONDENT
And	The Mother
OTHER PARTY

DECISION

Tribunal

Senior Member J F Toohey

Date of decision

Date of written reasons

31 July 2015

25 August 2015

Place

Sydney

For the reasons given orally at a hearing on 31 July 2015, the time for the making of an application for review of the decision of the Respondent is extended to 1 April 2015.

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Senior Member J F Toohey

It is noted that publication of this decision is approved by the Administrative Appeals Tribunal pursuant to s 110X4((h) of the Child Support (Registration and Collection) Act 1988 (Cth).

CATCHWORDS – practice and procedure – extension of time – factors to be considered – application lodged one day late – whether acceptable explanation for the delay – merits of substantive application – Tribunal satisfied extension of time reasonable in all the circumstances – extension of time granted

Legislation

Administrative Appeals Tribunal Act 1975 ss 29(1)(d), 29(2)(a), 29(7)

Child Support (Assessment) Act 1989

Cases

Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176

REASONS FOR DECISION

Senior Member J F Toohey

25 August 2015

Background

1. This matter concerns an application for an extension of time in which to lodge an application for review of a decision of the Social Security Appeals Tribunal (SSAT) made on 19 February 2015.  By that decision, the SSAT determined that the father, who lodged the application,  had 10 percent care of his daughter in the 12 months from 21 December 2015 (the care period) and the mother, who is the other party in these proceedings, had 90 per cent care.

2. From 1 July 2015, the Social Security Appeals Tribunal amalgamated with the Administrative Appeals Tribunal (AAT) and became the Social Services and Child Support Division of the AAT.

3. At a hearing on 31 July 2015, I determined that the father should be granted an extension of time and made directions for the matter to proceed to a hearing at the earliest available date.

4. These written reasons reflect reasons given orally at the hearing on 31 July 2015 and are provided at the request of the Child Support Registrar (the Registrar), who is the respondent in these proceedings. 

   Principles

5. An application for review of a decision must be lodged with the Tribunal within 28 days from the day on which the applicant received the decision (or when it was deemed to have been made): sub-sections 29(1)(d) and 29(2)(a) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).

6. The Tribunal may extend the time for lodging an application for review if it is satisfied that it is reasonable in all the circumstances to do so: s 29(7).

7. The principles by which a decision whether to grant an extension of time should be guided were described by Wilcox J in Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176 as including:

   (a)whether there is an acceptable explanation for the delay;

   (b)whether the applicant has rested on his or her rights;

   (c)whether the respondent or the general public would suffer any prejudice as a result of the extension;

   (d)the merits of the case; and

   (e)considerations of fairness as between the applicant and other persons in a similar position. 

8. These principles are not to be applied mechanically.  All of the circumstances of the case must be considered, the overriding consideration being whether it is reasonable in all the circumstances to grant the extension. 

   The delay in lodging the application for review

9. The decision of the SSAT shows that it was dispatched on Friday, 27 February 2015.  The father says he received it on Tuesday, 3 March 2015, and I accept that is so.  By that calculation, his application should have been lodged with the Tribunal no later than 31 March 2015.  It was received one day late, on 1 April 2015. 

10. In his written application for an extension of time, the father stated that he understood his application was in time, being within 28 days of receiving the SSAT’s decision.  It is not clear how he arrived at that conclusion.  He stated that he could not hand the application in any earlier as it was only the day before doing so that he learned he could ask for the filing fee to be deferred, and he “reverted to the Child Support Authority” to see if there was another way of resolving the matter without turning to the Tribunal and incurring costs of the application. 

11. At the hearing, the father said he was experiencing financial difficulties at the time and believed he needed to pay the application fee at the time of lodging his application.  He also claimed he contacted the Tribunal when he realised that time was running, and that he was advised he had to lodge the application in person.  I do not accept this last claim.  Applications are routinely lodged by fax and by mail and I do not accept that a member of staff would have given the father, or any person, that advice.

12. That said, a delay of one day is very brief.  That is not to say that it should be ignored; finality of decision-making is an important consideration and the statutory time limit is not to be ignored lightly.  However delay is only one factor to be considered.

    Prejudice to other parties, the public interest and fairness to others

13. While each of these principles is important, and any one may weigh against granting an extension of time, where the delay is very short, they often weigh less heavily than where the delay is longer.  For instance, the prejudice to other parties is likely to be minimal, and any unfairness to others who submit their applications in time will likely be less.

14. The Registrar submits that the application for an extension should be refused principally because the substantive application has no prospects of success should the extension be granted. 

    Merits of the application

15. At issue in the proceedings are the respective percentages of care that the father and the mother had for their child during the 12 months from 18 December 2013.  Prior to January 2014, the father and mother had been assessed as having 15 per cent and 85 percent care of the child respectively. On 30 January 2014, the Registrar assessed the care percentages of the father and mother during that period as 10 per cent and 90 per cent respectively.  The father objected to that assessment and, on 11 July 2014, an Objections Officer varied that decision, assessing the father and the mother to have 12 per cent and 88 per cent care respectively as from 18 December 2013.  The father sought review of that assessment by the Social Security Appeals Tribunal (SSAT).    

16. The issue before the SSAT was whether there had been a change in the pattern of care for the child such that the existing care percentage should be revoked and, if so, what the percentages of care should be and from what date they should take effect.  The relevant legislation provides, in effect, that an existing care percentage should be revoked if the Registrar is notified that a person who had at least 14 per cent of care has less than that percentage.  Whether there has been such a change will depend on all the circumstances of the case.  The Child Support Guide provides guidance on matters that may evidence such a change.

17. On 19 February 2015, the SSAT determined that the father and mother had 10 per cent and 90 percent care of the child respectively as of 21 December 2013. It was satisfied of matters including that the mother had made the child available to the father at times when he said she had refused his requests. Applying the relevant provisions of the Child Support (Assessment) Act 1989, the SSAT found that, based on the change in the pattern of care from around 21 December 2013 to around April 2014, the father could have anticipated having no more than 10 per cent care of the child in the 12 months from 21 December 2013.

18. The SSAT decision records what it says the father told that tribunal at the hearing on 19 February 2015.  Before this Tribunal, the father claims the SSAT’s decision does not accurately reflect his evidence.  He says he has evidence in the form of emails between himself and the Registrar, and between himself and the mother, that support his claim that the mother refused his requests to have the child in his care at different times, and that the child was in his care on approximately 67 nights during the claim period.  Asked why he did not provide this information to the SSAT, the father said that he answered what he was asked about.  However, he says, he is able to provide that evidence to the Tribunal to support his application for review.

19. In October 2014, there was a change in the care arrangement.  On 19 January 2015, the father’s and mother’s care percentages were varied with effect from 4 December 2014 to 42 per cent and 58 per cent respectively.

    Consideration

20. While I have some difficulty with the father’s claim that the SSAT decision does not accurately reflect what he told that tribunal, I am prepared to accept his claim that he has evidence, including in the form of emails, that will substantiate his claim about his requests for care and that he had a greater overall percentage of care during the care period.  While I also have difficulty with the fact that he is yet to produce that material, I accept that he will do so.  In those circumstances, I do not think it can be said that the substantive application has no prospect of success.  It is reasonable, if what the father says is correct, that he have the opportunity to put his case. 

21. Taking into account that the substantive application was lodged one day late, I am satisfied on balance that it is reasonable in the circumstances to grant the extension of time, and I make the following directions:

    1)The time for the making of an application for review of the decision of the Registrar is extended to 1 April 2015.

    2)By 14 August 2015 the applicant is to give to the Tribunal, the Registrar and the mother the following evidence in support of his claim that he had more than 10% care of the child during the relevant period:

    a.a statement of evidence of the applicant;

    b.a statement of evidence of the applicant’s wife;

    c.copies of email correspondence between the applicant and the Child Support Agency and the mother.

    3)By 28 August 2015 the Registrar and the mother are to provide the Tribunal, the applicant and each other any submissions they wish to make about the application and any further evidence on which they seek to rely.

    4)The matter is listed for hearing at 10:00am on 14 October 2015.

22.      I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. 

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Associate

Dated  25 August 2015

Date(s) of hearing		31 July 2015
Representatives for the Applicant		Self-represented
Representatives for the Respondent	Ms Kate Martini, Australian Government Lawyer
Representative for the Other Party	Self-represented