XQTJ and Child Support Registrar (Child support second review)

[2023] AATA 1615

XQTJ and Child Support Registrar (Child support second review) [2023] AATA 1615 (24 May 2023)

Division:GENERAL DIVISION

File Number:          2023/2442

Re:XQTJ

APPLICANT

AndChild Support Registrar

RESPONDENT

AndKZDM

JOINED PARTY

DECISION

Tribunal:Dr L Bygrave, Member

Date:24 May 2023

Date of written reasons:        14 June 2023

Place:Melbourne

Pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal grants the Applicant’s application for an extension of time and extends the time for the Applicant to make an application for review of a decision to 12 April 2023.

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

Dr L Bygrave, 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.

Catchwords

CHILD SUPPORT – AAT second review – application for an extension of time – whether acceptable explanation for delay – whether prejudice in allowing an extension of time – whether substantive application has any prospects of success – extension of time granted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Cases

Comcare v A’Hearn [1993] FCA 498
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

REASONS FOR DECISION

Dr L Bygrave, Member

14 June 2023

1. The decision of the Tribunal and reasons for the decision were delivered orally to the parties on 24 May 2023. The oral reasons have been transcribed and edited.

2. The following paragraphs are the reasons for the Tribunal’s decision.

   INTRODUCTION

3. On 11 April 2023, the Applicant (XQTJ) lodged an application with the General Division of the Tribunal under subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) seeking an extension of time to make an application to review a decision made by the Social Services and Child Support Division (AAT1) of the Tribunal on 21 July 2022 (the reviewable decision).

4. The reviewable decision set aside an objection decision made by Services Australia – Child Support Agency and, in substitution, decided that ‘the existing determination of care is revoked from 3 October 2021, and from 4 October 2021 a new determination of care is made that [the Other Party (KZDM)] has 35% care of the children and [XQTJ] has 65% care of the children’.

5. On 1 May 2023, the Other Party filed a notice opposing the application for an extension of time.

6. Written submissions dated 17 May 2023 and relevant documents from Services Australia – Child Support Agency were lodged by the Child Support Registrar, the Other Party lodged written submissions and documents on 23 May 2023, and the Applicant lodged written submissions and documents on 23 May 2023 and 24 May 2023.

7. An interlocutory hearing was held by teleconference on 24 May 2023. A legal representative of the Child Support Registrar, the Applicant and the Other Party attended the hearing and made oral submissions.

   PRINCIPLES TO BE APPLIED FOR AN EXTENSION OF TIME APPLICATION

8. Ordinarily, in accordance with paragraph 29(2)(a) of the AAT Act, an application for review of a decision must be lodged with the Tribunal within 28 days from the day on which the decision is given to an applicant.

9. Pursuant to subsection 29(7) of the AAT Act, the Tribunal may extend the time for lodging an application if it ‘is satisfied that it is reasonable in all the circumstances to do so’.

10. The principles to be applied in determining an application for an extension of time have been set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at [348] and [349] paraphrased as follows:

    (a)an applicant must show an ‘acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time;

    (b)a distinction is to be made between an applicant who has ‘rested’ on their rights and allowed the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that they contest the finality of the decision;

    (c)whether any prejudice to the respondent (or another party) will be caused by the delay;

    (d)whether the general public would suffer any prejudice as a result of the extension;

    (e)the merits of the substantial application; and

    (f)considerations of ‘fairness as between the applicant and other persons’ in a similar position.

11. These principles are not to be applied mechanically. For example, an ‘acceptable explanation for the delay’ is not an essential precondition to the exercise of the discretion, although it is to be expected that such an explanation will normally be given: Comcare v A’Hearn [1993] FCA 498 [15]; (1993) 45 FCR 441, 444.

12. All of the circumstances of the case must be considered; the overriding consideration being whether it is ‘reasonable in all the circumstances’ to grant the extension.

    REASONS FOR DELAY

13. The Applicant lodged an ‘Application for Extension of Time for Making an Application for Review of Decision’ on 11 April 2023, seeking review of a decision made by the AAT1 on 21 July 2022.  I accept the Applicant’s submission that she received the AAT1 decision on 3 August 2022 and written submissions by the Respondent that the 28 days’ timeframe for the Applicant to seek review expired on 31 August 2022. I am satisfied the delay in the Applicant seeking review of the reviewable decision is 251 days (more than eight months) outside the 28-day time limit.

14. The Applicant provided documentary evidence and made written and oral submissions about her circumstances over the eight months from August 2022 to April 2023. This included that she was stressed and overwhelmed by the process and consequently, avoided paperwork related to the issue. The Applicant said she and the Other Party were involved in court proceedings as well as reviews in the Tribunal in relation to the care of their children in 2022. She said she was aware of her appeal rights to the Tribunal; however, she had received two other decisions relating to percentage of care that were not in her favour and so decided that she ‘did not have the energy’ to pursue the matter further. The Applicant said that this view changed after she received a decision from the General Division of the Tribunal (differently constituted) in January 2023, which related to percentage of care for the children for a different time period, and she then thought that she may have a valid case in relation to the reviewable decision. It was after the decision was made by the General Division – albeit ten weeks later – that the Applicant lodged her application to review the reviewable decision. 

15. The Applicant also provided submissions about the four children – aged from four years old to nine years old – that she and the Other Party share the care of. The Applicant said their oldest child has emotional sensitivity and their second oldest child has been diagnosed with ‘combined ADHD and ODD’; this is also set out in a report dated 16 June 2022 by a consultant paediatrician. She said that her children have required a lot of her time, care and support.

16. I accept there has been a significant level of stress and anxiety following the breakdown in the marriage of XQTJ and KZDM, particularly involving proceedings in the courts and reviewing care arrangements for the children. While I accept this situation applies to both the Applicant and the Other Party, I have had regard to a report from the Applicant’s psychologist dated 15 May 2023 that set out the Applicant’s circumstances over the past four years and her ‘anxiety and distress’.

17. I am satisfied that, while the Applicant’s delay of over eight months to seek review is extensive, there is an acceptable explanation for this delay. Weighing all the evidence, I find this principle has a neutral weighting in relation to granting an extension of time.

    PREJUDICE TO THE RESPONDENT, GENERAL PUBLIC AND THE OTHER PARTY

18. I consider it is in the interests of the Respondent, the general public and the Other Party that statutory time limits are adhered to so as to ensure there is a predictable and orderly conclusion to appeal processes. I also accept the Respondent, the general public and the Other Party would have expectations about the finality of the decision-making process.

19. While the Respondent submitted that they would experience limited prejudice, I find that the Other Party was entitled to consider the AAT1 decision was final 28 days after the reviewable decision was made. As the delay is more than eight months, I find the Other Party would suffer prejudice as a result of the extension being granted.

20. I am satisfied this factor weighs against granting an extension of time.

    MERITS OF SUBSTANTIVE APPLICATION

21. The merits of the substantive application must be considered in deciding whether to grant the extension of time. While I do not determine the substantive application, I must consider whether the application has any prospects of success.

    Relevant legislation and consideration

22. The legislation relevant to this matter is the Child Support (Assessment) Act 1989 (Cth) and the Child Support (Registration and Collection) Act 1988 (Cth); relevant government policy is set out in the Child Support Guide.

23. The substantive application is about the determination of care between the Other Party and the Applicant in relation to their four children following an Interim Court Order made on 4 October 2021 (Interim Court Order). The Applicant is seeking review of the AAT1 decision that ‘the existing determination of care is revoked from 3 October 2021, and from 4 October 2021 a new determination of care is made that [KZDM] has 35% care of the children and XQTJ has 65% care of the children’.

24. The Applicant made submissions about an order in the Interim Court Order that states:

    Each week from 10:00/11:00am Friday until 9:00pm Sunday (if the [older two children] are attending onsite learning the Father will collect them from school at the commencement of his time with them, and noting on occasions the Mother may require flexibility with the starting time. 

25. The Applicant said the care percentages attributed to her and the Other Party in the AAT1 decision relied on solely on this order. Both the Applicant and the Other Party accepted in their oral submissions to the Tribunal on 24 May 2023 that the wording of this order was ambiguous; they acknowledged the interpretation of this order had been an issue of contention between them as it did not reflect the care for all four children that actually occurred. The Applicant and the Other Party said that, while the Other Party may have had care of the younger two children from 10:00/11:00am, the older two children attended school and were not in the care of the Other Party until after school finished on a Friday. However, there were discussions and disputes about school holidays and care of the children during lockdown periods. Where these facts are in dispute between the Applicant and/or the Other Party, I consider that is an issue to be addressed in a substantive hearing. I note that the Applicant and the Other Party said the Interim Court Order was amended in March 2022 to clarify the ambiguity in the order outlined in paragraph 24 above.

26. I consider the merits of the substantive application relate to whether the General Division of the Tribunal can make factual findings about the nature and the extent of care provided by the Applicant and the Other Party to their four children in the period from the Interim Court Order on 4 October 2021 to the proceedings in the Court in March 2022, and whether these are different to the findings made in the AAT1. This will require an interpretation of the order (at paragraph 24) in the Interim Court Order and consideration of the actual pattern of care that occurred in this period.

27. I am satisfied there is sufficient merit in the consideration of these factual questions and that this principle weighs strongly for granting an extension of time.

    CONCLUSION

28. Weighing the relevant factors and taking into account all the information before me, I am satisfied that it is reasonable in these circumstances to grant the extension of time.

    DECISION

29. Pursuant to subsection 29(7) of the AAT Act, the Tribunal grants the Applicant’s application for an extension of time and extends the time for the Applicant to make an application for review of a decision to 12 April 2023.

I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision of Dr L Bygrave, Member

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

Associate

Dated: 14 June 2023

Date of hearing:	24 May 2023
Applicant:	Self-Represented
Advocate for the Respondent:	Tim Noonan
Solicitors for the Respondent:	Services Australia - Legal Services Division
Joined Party:	Self-Represented