VMWY and Child Support Registrar (Child support second review)

[2024] AATA 2855

VMWY and Child Support Registrar (Child support second review) [2024] AATA 2855 (2 July 2024)

Division:GENERAL DIVISION

File Number:          2023/7206

Re:VMWY

APPLICANT

AndChild Support Registrar

RESPONDENT

AndJKQZ

OTHER PARTY

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:2 July 2024

Date of written reasons:        14 August 2024

Place:Sydney

The decision of the Administrative Appeals Tribunal (Social Services and Child Support Division) dated 27 September 2023 is affirmed.

.............[SGD]...........................................................

Emeritus Professor P A Fairall, Senior Member

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 (Cth).

CATCHWORDS

PRACTICE AND PROCEDURE – Extension of time to review decision of Child Support Registrar – Extent of delay – Whether reasonable explanation for delay – Merits of application for review – Whether prejudice to other parties – Decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

REASONS FOR DECISION

Emeritus Professor P A Fairall, Senior Member

14 August 2024

INTRODUCTION

1. The Applicant seeks review of a decision of the Administrative Appeals Tribunal (AAT1) dated 27 September 2023 to refuse the Applicant an extension of time to lodge an application to review a decision of the Respondent dated 10 March 2023. The Other Party opposes the application, whereas the Respondent remains neutral and confines its role to assisting the Tribunal in applying the relevant legislative provisions.

   BACKGROUND

2. The Applicant and the Other Party are the separated parents of two children. The Other Party is assessed as having 100% care of the children at all relevant times.

3. On 1 November 2022, upon application by the Other Party, a delegate of the Respondent decided to change the existing assessment of the Applicant’s adjusted taxable income. The Applicant objected to that decision, which an authorised officer of the Respondent decided to allow in part on 10 March 2023 (the objection decision). The Applicant subsequently applied to the AAT1 for an extension of time to review the objection decision on 30 July 2023.

4. The Applicant does not dispute that he received notification of the objection decision and that he failed to apply for review within the allotted 28-day timeframe, which expired on 25 April 2023. The extent of the delay therefore amounts to 96 days outside the statutory timeframe.

5. This matter was heard by videoconference on 2 July 2024. Both the Applicant and the Other Party gave evidence. The Registrar was represented by Mr K. Eskerie, of Sparke Helmore Lawyers.

6. After hearing from the parties and Mr Eskerie, who made helpful submissions on the relevant legal principles, I indicated that I was satisfied that I should not exercise the discretion to grant an extension of time. The applicant subsequently requested written reasons, which I now provide.

   CONSIDERATION

7. The factors to which the Tribunal must have regard in deciding whether to grant an extension of time include but are not limited to the extent of the delay, the explanation for that delay, the merits of the substantive application, and whether there is any prejudice to the other parties in proceeding with the application. Of these, the first two considerations are preeminent.

8. The Applicant has filed many documents with, and put many reasons to, the Tribunal to explain his delay in filing the application for review with the Tribunal.

9. He expressed frustration and irritation at the decisions made by the Agency. He said that he had difficulty communicating with the Agency following receipt of the objection decision. He said that he responded by facsimile. I am not satisfied that, at the time of the objection decision, the Applicant was solely restricted to using facsimile to communicate with the Agency. The conclusion must be drawn that the Applicant did not attend to this matter with sufficient focus to ensure that it was dealt with in a timely manner, and in accordance with the statutory timelines.

10. The fundamental point is that the Applicant does not dispute receiving the notice of his appeal rights from the Agency. His explanation for the delay in applying for review of the AAT1 decision was that he was still communicating with the Agency about the merits of the case, and that for self-imposed reasons relating to the mode of communication, he was having difficulty doing so.

11. I do not think that this provides a reasonable explanation for such a long delay. The letter in question provided clear instructions about how to seek a review of the AAT1 decision.

12. I turn to consider the other relevant factors in determining whether to exercise the discretion to grant an extension of time.

13. The first, and most important, of these other factors is the prospects of success of the substantive application. The Tribunal is more likely to grant an extension of time where an applicant is likely to experience a serious adverse outcome (such as deportation, loss of a pension or financial asset) and there is a reasonable prospect of changing that decision. But in this case, both the Applicant and the Other Party conceded that they could not predict with any certainty where the final outcome in this application might fall. To allow this matter to proceed in these circumstances is to do so without a clear indication which party would be benefited by the ultimate decision. There are too many uncertainties, and I am not in a position to make a fair and reasonable determination on the prospects of success on the available evidence. As I pointed out to the Applicant, granting him an extension of time might be to his financial detriment.

14. I turn to consider the prejudice to the Other Party were the extension of time to be granted. She is opposed to the grant of an extension of time. I consider that she may suffer prejudice if the extension of time is granted. It is not in the interests of either party for a contentious dispute to be prolonged. She is entitled to finality in these proceedings, particularly given the stressful nature of disputes between separated parents about child support entitlements.

15. Finally, I attach weight to the interest that all citizens have in effective public administration. Prospective applicants must adhere to statutory time limits in seeking review of administrative decisions. The grant of an extension of time is properly characterised as an indulgence. The Tribunal must be satisfied that it is reasonable in all the circumstances to grant that indulgence. For the reasons outlined above, I am not so satisfied.

    DECISION

16. The decision of the Administrative Appeals Tribunal (Social Services and Child Support Division) dated 27 September 2023 is affirmed.

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

...............[SGD].........................................................

Associate

Dated: 14 August 2024

Date of hearing:	2 July 2024
Applicant:	In person
Solicitors for the Respondent:	Mr K. Eskerie, Sparke Helmore Lawyers
Other Party:	In person