Vaccaro and Child Support Registrar (Child support)

[2020] AATA 3649

Vaccaro and Child Support Registrar (Child support) [2020] AATA 3649 (25 June 2020)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2020/MC018533

APPLICANT:  Mr Vaccaro

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:               25 June 2020

APPLICATION:

An extension application made on 3 March 2020 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 13 January 2020 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

CHILD SUPPORT – application for extension of time - plausible 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. This is an application by Mr Vaccaro for an extension of time to apply to the Tribunal for review of a decision of the Child Support Agency (CSA) dated 13 January 2020. The CSA disallowed his objection to an earlier decision refusing his request to credit “non-agency payments” against his child support liability. 

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 Vaccaro was required to make his application within 28 days of receiving the decision of 13 January 2020.

3. Mr Vaccaro made an application for AAT first review on 3 March 2020, outside the 28-day period. In his written application to the Tribunal – consistent with his evidence during the hearing – Mr Vaccaro advised the following in relation to the delay:

   I have moved twice and both times I have not received the paperwork in time. My mail normally goes to the myGov website but with these cases I have been informed they can’t email and must send in the mail, so having changed address I have missed the cut off dates as I have received the paper work later than the cut off time.

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. The Tribunal observes the delay here is relatively short, and that Mr Vaccaro has a plausible, if not particularly compelling, explanation for the delay.

Merits of the objection

1. There is no purpose to be served by granting an extension if an application is not likely to succeed.

2. The only way for Mr Vaccaro’s substantive application to succeed would be if [Ms A] intended the rent payments claimed by Mr Vaccaro to be in lieu of child support (given Mr Vaccaro has regular care of the children, he is not able to claim “prescribed non-agency payments” which do not require “mutual intent”). The test is not one based on broader notions of fairness or reasonableness.

10.The CSA materials reveal [Ms A] told the CSA that she had understood Mr Vaccaro’s rent was being paid by his employer, and that she has consistently maintained she had never intended or expected payment of rent to be in lieu of child support.

11.In the absence of any evidence which would contradict [Ms A’s] consistent and plausible representations to the CSA, the Tribunal considers Mr Vaccaro’s application has no prospects for success. This weighs very heavily against an extension being granted.

Potential prejudice to the other party

12.The Tribunal is concerned about the possible prejudice to the other party who has been entitled to rely upon the decision. However, the delay here is not particularly lengthy.

Public interest considerations

13.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

Mr Vaccaro’s application appears to have no prospects for success. Accordingly, the interests of justice require that the extension application be refused.