VMHX and Child Support Registrar (Child support second review)

[2020] AATA 1258

VMHX and Child Support Registrar (Child support second review) [2020] AATA 1258 (22 April 2020)

Division:GENERAL DIVISION

File Number:          2020/0939

Re:VMHX   

APPLICANT

AndCHILD SUPPORT REGISTRAR

RESPONDENT

And BFZL

DECISION

Tribunal:Member K. Parker

Date:22 April 2020

Date of written reasons:         11 May 2020

Place:Melbourne

For the reasons given orally at a hearing on 22 April 2020, the Tribunal refused VMHX’s application to be granted an extension of time under s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) to lodge an application for review in respect of a decision made by the Social Services and Child Support Division of this Tribunal on 31 October 2019.

VMHX requested written reasons for the Tribunal’s decisions. The Tribunal’s reasons are set out in the attached Reasons for Decision.

...............[sgd]................................................

Member K. Parker

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.

Catchwords

EXTENSION OF TIME APPLICATION – whether reasonable in all the circumstances to grant an extension of time – application lodged approximately six weeks out of time – applicant claimed he did not receive notice of the reviewable decision – explanation for the delay – whether applicant rested on his rights – merits of the substantive application –       other factors considered – application refused

Legislation

Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Evidence Act 1995 (Cth)

Cases
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344

REASONS FOR DECISION

Member K. Parker

11 May 2020

BACKGROUND

1. On 26 February 2020, VMHX made an application to the General Division of the Administrative Appeals Tribunal (this Tribunal) for an extension of time to lodge an application for review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) made on 31 October 2019. 

2. The AAT1 decision involved a review about a care percentage determination made in respect of VMHX and the Other Party, BFZL, who is the mother of VMHX’s child.  The care percentage determination is factored into the calculation of the amount of child support that VMHX is required to pay to BFZL.  This decision was made after a contested hearing that took place before the AAT1 where evidence was presented by VMHX and BFZL in support of their respective assertions about when the child was in their actual care over the relevant period.

3. VMHX stated that the reason he had requested an extension of time to lodge the review application was that he had not received the AAT1 decision after it was made.  VMHX said he only found out about it from the Child Support Agency in February 2020, following which he telephoned the Tribunal and requested a copy of the AAT1 decision be sent to him.

4. The Secretary opposed VMHX’s application for an extension of time, as did BFZL.

   CONSIDERATION

5. Section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides the Tribunal with discretion to extend the 28-day time limit for an applicant to lodge an application for review of a decision, where the extension of time application has been made by the applicant in writing, which it has in this case; and if the Tribunal is satisfied that “it is reasonable in all the circumstances to do so”. 

6. As a guiding principle, the time limit cannot be ignored unless there is a good reason to do so. Special circumstances need not be shown, but the decision-making body must not grant the extension unless it is positively satisfied it is proper to do so.  The application for the extension of time must show an acceptable explanation for the delay and show that it is fair and equitable in the circumstances to extend the time – see the Federal Court of Australia decision of Hunter Valley Developments Pty Ltd v Cohen, Minister For Home Affairs and Environment (1984) 3 FCR 344 (Hunter).

   Length of the delay

7. It was not in dispute between the parties that VMHX lodged his application for review approximately six weeks after the 28-day statutory time limit had expired.  The length of the delay in this case was reasonably long.  

   Explanation for the delay and whether VMHX has rested on his rights

8. The next factor considered by the Tribunal was whether VMHX has a compelling explanation for the delay and whether he had rested on his rights. The Tribunal considered those factors contemporaneously.  Those factors involved an examination of the same set of facts.  Given the reasonably long delay of six weeks occasioned by VMHX in lodging his application for review, the Tribunal closely examined VMHX’s stated explanation for the delay. 

9. At the hearing, VMHX maintained that he did not receive the AAT1 decision (and covering letter) until February 2020 after he contacted the Tribunal to request a copy when he found out from the Child Support Agency that an AAT1 decision had been made. 

10. This Tribunal asked VMHX at the hearing whether he lived at Address X[1] at the time the AAT1 decision was made (being 31 October 2019) and up until the current time.              VMHX confirmed at the hearing that he was living at Address X during this period. 

    [1] The address of VMHX is not set out in these Reasons for Decision to protect the identity of the Applicant, the Other Party and their child.

11. This Tribunal had before it a screenshot of the AAT1’s computer records which showed that the AAT1’s Decision and the usual template covering letter advising VMHX of his right to appeal the AAT1’s Decision and the corresponding time limits, were dispatched by post from the offices of the AAT1 to VMHX at Address X on 8 November 2019.  This screenshot was provided to the parties prior to the hearing and this document was referred to at the hearing.

12. The Other Party, BFZL, informed the Tribunal at the hearing that she had received the AAT1 Decision (sent to her separately at a different address) by post a week or two after it had been made, together with the AAT1’s covering letter. 

13. This Tribunal has taken into account the Secretary’s submissions contending that certain provisions in the Acts Interpretation Act 1901 (Cth) and the Evidence Act 1995 (Cth) establish a presumption about the delivery of mail by post, and the times that are suggested to be allowed for the receipt of such mail. As explained at the hearing, this Tribunal is not strictly governed by the rules of evidence. However, the principles upon which such rules are based influence this Tribunal’s assessment of whether VMHX was likely to have received the AAT1’s Decision and covering letter.

14. Considering:

    (a)that there is an entry in the AAT1 computer system as shown in the screenshot that the AAT1 Decision dated 31 October 2019 and covering letter was dispatched to VMHX at Address X on 8 November 2019;

    (b)VMHX’s evidence at the hearing that he was living at Address X at that time and that he opened his mail once he received it; and

    (c)the presumption established by the Acts Interpretation Act and the Evidence Act that mail is taken to have been received 12 days after it is sent by post, as highlighted by the representative for the Child Support Registrar;

    the Tribunal finds that on the balance of probabilities that VMHX received and was duly notified of the AAT1’s Decision at the latest, two weeks after it was dispatched from the offices of the AAT1 on 8 November 2020.  

15. On this basis, the Tribunal is not satisfied that VMHX had a compelling explanation for the delay in lodging an application for review and that he rested on his rights between when he received the AAT1’s Decision in late-November 2019 and when he lodged his application in late-February 2020.  This factor weighed significantly against the Tribunal granting an extension of time.

    Merits of the substantive application

16. In the context of an extension of time application, this Tribunal’s task is to form a general impression as to the merits of the substantive application. 

17. This Tribunal has reviewed the AAT1 decision and notes that there was a full ventilation of the factual matters in dispute in the substantive application. This Tribunal also acknowledges that the legislative regime expressly provides for a two-tier avenue of review if a parent disagrees with decisions made about care percentages which may affect the amount of child support payable. 

18. The substantive application in this case will ultimately come down to an assessment about who is believed in terms of the actual days of care provided to the child over the relevant period, in a similar way that the AAT1 undertook this exercise leading to its decision dated 31 October 2019. Such cases are not easy and require an assessment of which evidence is more compelling and who is to be believed.  This Tribunal is prepared to accept, for the purposes of VMHX’s extension of time application, that VMHX has reasonable prospects of being able to persuade the Tribunal that he should be believed over the evidence given by the Other Party, especially if he is able to present further supporting evidence which he indicated that he intended to do. 

19. On this basis, this Tribunal considers that VMHX’s prospects of success are certainly not hopeless or fanciful and that given that he has a reasonable chance of persuading the Tribunal to believe him over the evidence given by the Other Party (which is inherent in a case of this type), this factor weighs in favour of granting an extension of time to VMHX. 

    Alternative avenues of relief

20. The Secretary contended that this Tribunal should consider the fact that purported alternative avenues of relief were, and are still, available to VMHX to pursue, even if his application for review is not permitted to be lodged out of time.  This Tribunal considers that it is appropriate to consider this factor.

21. At the hearing, VMHX told the Tribunal that he had previously withdrawn a more recent “change of care circumstances” notification made to the Child Support Agency because he was advised to do so by an agency representative, while this review was on foot.                  The Tribunal is willing to give VMHX the benefit of any doubt and to accept for present purposes that VMHX was given that advice which closed off for him this earlier alternative avenue of relief. 

22. The Secretary also contended that VMHX was still at liberty to make a “change of care circumstances” notification to the Child Support Agency and to make a “fresh” request that the care percentages of VMHX and the Other Party be reassessed.  The Tribunal acknowledges that this alternative avenue remains open to VMHX and this was explained to VMHX at the hearing.  However, if VMHX made such a request and it was assessed in his favour, it would not provide him with the same relief that would flow to VMHX if the substantive application was allowed to proceed and was decided in his favour.  This is because the effect of any “fresh” reassessment if it was made in VMHX’s favour would be limited to prospective child support payments, whereas the potential relief flowing from a decision in his favour in the substantive application (if it were allowed to proceed), would potentially also apply to retrospective child support payments. 

23. This factor has the potential to count against VMHX’s extension of time application. However, given the alternative relief is not identical in the circumstances of this case it has not weighed heavily on this Tribunal’s decision.

    Prejudice to the Child Support Registrar and the Other Party

24. The Tribunal was informed by the representative of the Child Support Registrar that no prejudice would be suffered by the Child Support Registrar if the extension of time was granted.  This counts in favour of this Tribunal granting an extension of time to VMHX.

25. At the hearing BFZL told the Tribunal that she would suffer prejudice if such an extension was granted. BFZL expressed her concern that from her perspective this issue had gone on for too long. The Child Support Registrar was supportive in relation to BFZL’s stated concerns and contended that it was reasonable for her to have some finality in relation to the issue, given that she may potentially be financially affected if the reviewable decision was set aside or varied. 

26. This Tribunal accepts that BFZL may be adversely affected if VMHX were permitted to proceed with the substantive application and it was decided in his favour, given that after the expiry of the time for lodgement of the review she may have been operating (financially) on the basis that the issue of care percentages had been finally decided and that the level of child support that was paid to her was a certainty.  This factor counts against granting an extension of time to VMHX but in this case, it has not weighed heavily in the mind of the Tribunal in making its decision as BFZL’s evidence was not given at the hearing with any particularity.

    Wider prejudice to the general public in terms of disruption to established practices

27. The Tribunal agrees with the principle that general public interest and the interests of those applicants who comply with the prescribed time limits are unsettled by perceptions of unfairness and uncertainty, if an extension of time to lodge an application is granted where the justice of the case does not permit that this should occur.  In this case, no specific examples of other cases where an extension had been refused or granted in similar cases to the present application were cited, so the Tribunal was unable to give “real life” to this consideration.

28. Accordingly, the Tribunal has treated this factor as a neutral consideration. This factor has not influenced the Tribunal one way or the other about whether to grant an extension of time to VMHX to lodge the substantive application for review.   

    CONCLUSION

29. The Tribunal considers that the period of delay by VMHX in lodging his application for review was reasonably long.  The Tribunal accepts that VMHX’s prospects of success are not hopeless and he may be able to persuade the Tribunal to make a decision in his favour if given the chance.  This weighs in favour of granting an extension of time, as does the consideration that no prejudice would be suffered by the Child Support Registrar if he were permitted to do so.

30. However, the Tribunal considers those two considerations are outweighed by the competing considerations that the Tribunal is not satisfied that VMHX has a compelling explanation for the six-week delay and that he has rested on his rights before seeking to lodge an application for review. 

31. In conclusion, the Tribunal is not satisfied that it is reasonable in all of the circumstances of this case to grant an extension of time.  VMHX’s application for an extension of time to lodge an application for review is refused. 

I certify that the preceding 31 (thirty one) paragraphs are a true copy of the written reasons for the decision herein of Member K. Parker

.........[sgd]...............................................

Associate

Dated: 11 May 2020

Date of hearing:

22 April 2020

Applicant:

Other Party:

Appeared on his own behalf by telephone

Appeared on her own behalf by telephone

Advocate for the Respondent:

Ms Charlie Inglis, Government Lawyer,      Services Australia