Tolkien and Child Support Registrar (Child support)

[2019] AATA 2540

Tolkien and Child Support Registrar (Child support) [2019] AATA 2540 (17 June 2019)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2019/BC016344; 2019/BC016310

APPLICANT:  Mr Tolkien

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                17 June 2019

APPLICATION:

An extension application made on 10 April 2019 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 20 June 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. Mr Tolkien and [Ms A] are the parents of [Child 1], born [date]. By letter dated 20 June 2018, the Child Support Agency (“CSA”) wrote to Mr Tolkien to advise him it had disallowed his objections to two decisions it identified as having been made concerning a review of Mr Tolkien’s income estimates for child support purposes. The Tribunal observes there is one objection decision in evidence, dated 20 June 2018.

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 Tolkien was required to make his application within 28 days of receiving the decision letter dated 20 June 2018.

3. Mr Tolkien made application for AAT first review on 10 April 2019, well outside the 28-day period. In his written application to the Tribunal, Mr Tolkien advised he was seeking an extension as he had “done his tax return in February 2019 and the inforced (sic) child support income was ten’s (sic) of thousand (sic) incorrect. Please fix this matter…”. 

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 be fatal to an application for an extension of time.

2. Generally speaking, factors outside a person’s control, such as ill health or natural disasters, are viewed favourably. Mr Tolkien did not need to wait until his returns were completed to seek review; he was very clearly advised of his right to seek a review at the time.

3. The delay here is very significant; in the Tribunal’s assessment, Mr Tolkien does not have a reasonable explanation for not exercising his right of review in a timely way. He effectively rested on his rights. This weighs very heavily against granting an extension of time.

Merits of the objection

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

10.The CSA approach to reviewing estimates appears entirely reasonable on the evidence available to it at the time. Mr Tolkien was advised at the time he could apply for a “change of assessment”, which it appears he did not pursue. It appears unlikely his application would have reasonable prospects for success.

11.The lack of substantive merit weighs heavily against granting an extension.

Potential prejudice to [Ms A]

12.The Tribunal is particularly concerned about potential prejudice to [Ms A].

13.[Ms A] was entitled to rely on the decision in the absence of an objection by Mr Tolkien within the 28-day period. This factor also weighs heavily against granting an extension.

Public interest considerations

14.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

15.Mr Tolkien does not have a reasonable explanation for the very lengthy delay. His case lacks substantive merit. The Tribunal is also particularly concerned about possible prejudice to [Ms A] given the protracted delay.

16.Accordingly, the Tribunal considers the interests of justice are best served by refusing an extension of time.