WSNY and Child Support Registrar (Child support second review)

[2023] AATA 1261

WSNY and Child Support Registrar (Child support second review) [2023] AATA 1261 (18 May 2023)

Division:GENERAL DIVISION

File Number(s):      2023/1926

Re:WSNY

APPLICANT

AndChild Support Registrar

RESPONDENT

AndLXZH

OTHER PARTY

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:18 May 2023

Place:Sydney

The Applicant’s application for an extension of time to lodge his application for review is refused.

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

The Hon. John Pascoe AC CVO, Deputy President

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

PRACTICE AND PROCEDURE – application for an extension of time – application for disability support pension – where the application is 10 days out of time – whether there is an adequate explanation for delay – whether the application has strong prospects of success – whether there are alternative avenues of relief – application for extension of time refused

LEGISLATION

Administrative Appeals Tribunal Act 1978 (Cth) s 29

Social Security Act 1991 (Cth) s 94

CASES

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

REASONS FOR DECISE ION

The Hon. John Pascoe AC CVO, Deputy President

18 May 2023

BACKGROUND

1. I note the Respondents submissions contain a helpful factual summary of this application, much of which is replicated below.

2. On 10 February 2023 the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) set aside a decision of a delegate of the Child Support Registrar, and in substitution decided that:

   (a)The Applicant had 14% care of the relevant child from 23 March 2018;

   (b)The Other Party had 86% care of the relevant child from 23 March 2018; and

   (c)The date of effect of the Tribunal’s decision would be 6 May 2022.

3. On 24 March 2023, the Applicant applied to the General & Other Division of the Administrative Appeals Tribunal (AAT2) for review of the AAT1 decision. This application for second review was lodged more than 28 days after notice was given of the AAT1 decision.

   ISSUE

4. The issue before the Tribunal is whether to grant an extension of time for the lodgement of the Applicant’s application for review in the General & Other Division of the Administrative Appeals Tribunal.

   THE LAW

5. Section 29(7) of the Administrative Appeals Tribunal Act 1978 (Cth) permits the Tribunal to extend the time for lodgement of an application for review ‘if the Tribunal is satisfied that it is reasonable in all the circumstances to do so’.

   REASONS FOR DECISION

6. The Tribunal must decide whether to grant an extension of time for the lodgement of the Applicant’s application for review of the decision of AAT1 dated 10 February 2023.

7. In doing so, the Tribunal needs to consider whether it is reasonable in all the circumstances for an extension of time to be made.

8. In considering this question, the Tribunal should properly consider a number of factors as outlined in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. In this matter, namely:

   (a)The length of the delay;

   (b)The Applicant’s awareness of appeal rights and explanation for the delay;

   (c)The prospects of success if the extension of time is granted;

   (d)Any prejudice to the Respondent or Other Party if the extension of time is granted; and

   (e)Any relevant public interest considerations.

9. In this case the period of delay was 10 days. The Applicant said at the hearing that the delay was caused by health issues, and also that he had misunderstood information provided to him by the Tribunal Registry. There was no specific evidence produced to the Tribunal as to the nature of any health issue, nor the specific information said to have been given by the Registry staff.  

10. I accept that the delay was minimal, and that the delay was caused by the Applicant’s ill health and failure to understand the requirements for lodging an appeal. However, that is not determinative of the matter.

11. The Tribunal should also consider the prospects of success if the Tribunal were to grant an extension of time. In this regard, the Applicant’s chances of success are, on the evidence before the Tribunal, very low.

12. In this regard, it is necessary for the Tribunal to consider whether, even if an appeal were to be successful it would be futile. Clearly it is not in the public interest for an appeal to be conducted if the result of the appeal has no consequence.

13. Unfortunately for the Applicant, who I accept has difficulty with the complexity of the legislation and also is trying to run a number of cases before the Tribunal at the same time, I am of the view that even if an extension of time were granted and the Applicant was successful in a substantive review application, on the current evidence the Applicant would get no better result than what has been determined by AAT1 in its decision of 10 February 2023. This is because child support is calculated in relation to bands as set out in the following table:

Percentage of care	Cost percentage
0 to less than 14%	Nil
14% to less than 35%	24%
35% to less than 48%	25% plus 2% for each percentage point over 35%
48% to 52%	50%
more than 52% to 65%	51% plus 2% for each percentage point over 53%
More than 65% to 86%	76%
More than 86% to 100%	100%

1. The decision of AAT1 calculated the Applicant’s percentage of care as 14%. Whereas the Applicant had claimed before AAT1 that the percentage of care should be 33%. The amount of child support to be paid does not change between 14% and less than 35%, so that even if the Applicant were successful there is no change in the Child Support to be paid.

2. The Applicant raised the issue of whether the percentage of care should be calculated by reference to hours in care rather than days and/or nights, which is the usual method of calculation. The Applicant said at the hearing that on his evidence, if the care percentage was calculated according to hours spent it would show more than 35% care, and drew the Tribunals attention to a table that he had created.

3. The Applicant had raised the issue of how time should be calculated before AAT1, which rejected his argument that time should be calculated on the basis of hours spent, rather than days/nights. Regardless of how a calculation of hours might be made, there was no evidence before the Tribunal as to why there should be a departure from normal practice as considered by AAT1. It is not necessary for this Tribunal to consider whether the Applicant’s table in relation to the calculation of hours was correct or not.

4. Although there may be no prejudice to the Respondent if the application for an extension of time were to be granted. It is not in the public interest for costs to be incurred in the running of litigation and the hearing of matters where it is effectively an exercise in futility.

5. I note that the Other Party to these proceedings would incur expense and inconvenience if the matter were to be relitigated. Both the Other Party and the public are entitled to expect that matters, once decided, are finalised unless there is a real reason to the contrary.

6. In this regard, it is clear that any argument in relation to the time for commencement of the care period is also futile as the care period determined by AAT1 started from the earliest possible date that could be properly determined.

7. It is fair to say that the Applicant produced a great deal of material to the Tribunal in relation to his various arguments, much of which was irrelevant to the Tribunal’s decision. The Tribunal is not required to conduct a substantive hearing in deciding whether or not to grant an extension of time. In other words, it is not necessary for this Tribunal to effectively re-hear the matter in order to test the prospects of success for every argument put forward by the Applicant. Rather, the Tribunal needs to come to a conclusion based on the evidence before it as to whether an extension of time should be granted having regard to the principles outlined above.

8. Whilst I have sympathy for the Applicant, given he is self-represented, put simply, there was nothing before the Tribunal which would result in any meaningful outcome of a review of the decision of AAT1. For this reason, the application for an extension of time must be refused.  

9. Although not a factor in the decision, I note that during the hearing I attempted to explain to the Applicant the difference between Parenting Orders made by a judge or Registrar of the family court in relation to childcare arrangements, and the calculation of care for the purposes of the Child Support (Assessment) Act 1989 (Cth). In summary, orders made by the family court are an expression of what the court believes are the appropriate care arrangements. The Child Support Registrar makes a percentage of care determination on the basis of the care that has actually been provided by the parties. Accordingly, the orders made by the court are not the deciding factor and any attempt to argue that the court orders should be determinative is unlikely to succeed.

I certify that the preceding 22 (Twenty - Two) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

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

Associate

Dated: 18 May 2023

Date(s) of hearing:	4 May 2023
Applicant:	In person
Solicitors for the Respondent:	Mr Tom Hillyard
Other Party:	In person