Vasquez and Child Support Registrar (Child support) - [2018] AATA 3982

Vasquez and Child Support Registrar (Child support) [2018] AATA 3982 (29 August 2018)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2018/AC014427
APPLICANT:  Mr Vasquez
OTHER PARTY:  Child Support Registrar
DATE DECISION MADE:                29 August 2018

APPLICATION:

An extension application made on 15 May 2018 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 2 September 2017 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS
Child support - Extension of time to apply for AAT first review - Applicant rested on his rights - Decision under review is not likely to be changed on review - 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

Mr Vasquez is liable to pay child support to Ms Vasquez for their daughter [Child 1]. On 31 May 2017, the Child Support Registrar made a decision that varied the way in which the child support liability was worked out; this resulted in a substantial increase in the rate at which Mr Vasquez was to pay child support, with effect from 22 February 2017. The decision was to remain in force until the end of the child support case, with a relevant amount indexed by the Consumer Price Index each 1 July.
Mr Vasquez objected to the decision and on 2 September 2017, an objections officer (as delegate of the Registrar) allowed in part his objection and changed the decision in a way which still increased his liability, but not by as much as the original decision had.
The covering letter for the decision statement and the decision statement itself each contained information about the right of further review of the decision made on the objection. Each informed Mr Vasquez that he could apply to the Administrative Appeals Tribunal for review and that the application had to be made within 28 days of receipt of the notice; each provided the telephone number for the Tribunal. Despite that information, Mr Vasquez emailed the Registrar on 25 September 2017 seeking to object to the decision on the objection. An employee of the Child Support Agency contacted him on 28 September 2017 and explained that the Registrar could not again consider an objection and that Mr Vasquez’ right of review was to apply to the Administrative Appeals Tribunal.
The Tribunal received Mr Vasquez’ application on 15 May 2018. Under the Administrative Appeals Tribunal Act 1975[1] and the Child Support (Registration and Collection) Act 1988[2] (the Registration and Collection Act), an application of this type must be lodged within 28 days of the date on which the document setting out the decision is given to the person or else must be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] AATA 3982
Decision Date: 29 August 2018

CaseChat Overview and Summary

Mr Vasquez applied to the Administrative Appeals Tribunal (AAT) for an extension of time to seek a review of a decision made by the Child Support Registrar. The Registrar's decision, which varied Mr Vasquez's child support liability, was initially made on 31 May 2017 and subsequently varied on objection on 2 September 2017. Mr Vasquez lodged his application for AAT review on 15 May 2018, well outside the prescribed 28-day time limit.

The primary legal issue before the AAT was whether to grant Mr Vasquez an extension of time to apply for a review of the Child Support Registrar's decision. This required the Tribunal to consider the reasons provided by Mr Vasquez for the delay and to weigh various factors, including the merits of the proposed review, potential prejudice to the other party, and public policy considerations surrounding statutory time limits.

The Tribunal refused the extension application, finding that Mr Vasquez had not provided an adequate explanation for his delay. The Tribunal noted that Mr Vasquez's assertion of consulting a lawyer and inferring a lack of merit from the lawyer's silence was not corroborated and that a reasonable response would have been to follow up with the lawyer or contact the Tribunal directly. The Tribunal concluded that Mr Vasquez had rested on his rights and was solely responsible for his failure to apply within the prescribed period. Furthermore, the Tribunal found that the merits of the decision were not such that it was likely to be changed on review, and that allowing the review to proceed could cause prejudice to the payee by potentially reducing her entitlement retrospectively.

Consequently, the AAT declined to grant the extension of time, meaning Mr Vasquez's application for review was out of time and could not proceed.

Orders