XQVK and Child Support Registrar (Child support second review) - [2020] AATA 3495

XQVK and Child Support Registrar (Child support second review) [2020] AATA 3495 (10 September 2020)
Division:GENERAL DIVISION
File Number(s): 2020/3553
Re:XQVK
APPLICANT

AndChild Support Registrar
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:10 September 2020
Place:Sydney

The application for an extension of time is refused.
..........................................................[sgd]..................
Chris Puplick AM, 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 application – 14 months delay in filing application – whether reasonable explanation for the delay – prejudice to others – merits of substantial application – extension of time application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 29
CASES
BHC16 v Minister for Immigration and Border Protection [2019] FCA 1326
Berkelaar v Comcare [1997] AATA 12015
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Comcare v A’Hearn (1993) 119 ALR 85
Farnell Electronic Components Pty Ltd v Collector of Customs (1996) 142 ALR 322
Hillman and Australian Postal Corporation (Compensation) [2017] AATA 1411
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Jackamarra v Krakouer (1998) 195 CLR 516
Jamal v Secretary, Department of Social Services [2018] FCA 513
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
MZABP v Minister for Immigration & Border Protection [2016] FCAFC 110
Nedeljko Kuljic v Secretary, Department of Social Security [1994] FCA 886
Parker v R [2002] FCAFC 133
Pohahau v Minister for Home Affairs [2019] FCA 1243
Phillips v Australian Girls’ Choir Pty Ltd [2001] FMCA 109
Re Beames; Ex parte Beneficial Finance Corporation Ltd (1985) 7 FCR 216
Rouhani and Child Support Registrar (Child Support) [2020] AATA 2145
Secretary, Department of Family and Community Services and Roberts [2003] AATA 269
SECONDARY MATERIALS
Child Support Guide s 2.2.2
REASONS FOR DECISION
Chris Puplick AM, Senior Member
10 September 2020
THE REVIEWABLE DECISION

This is an application for an extension of time (EOT) lodged by XQVK (the Applicant) who wishes to secure a review of a decision made by the Social Services and Child Support Division of this Tribunal (AAT1) on 26 February 2019. That decision related to a percentage of care determination involving care of the children of the Applicant and his former partner PPDJ (the Other Party).
The reviewable decision was made on 26 February 2019 and the Applicant’s EOT application was lodged on 12 June 2020. The EOT application is opposed by the Other Party while the Child Support Registrar (the Registrar), which is also party to the proceedings, takes a position neither for nor against the application.
Applications for Extensions of Time
When considering EOT applications, the Tribunal is bound by court authority as to the factors which it should take into account in deciding whether or not to grant such applications.
Time limits are important for the reasons outlined by McHugh J in the High Court case of Brisbane South Regional Health Authority v Taylor[1] (Brisbane South). His Honour gave four reasons why such limitations are an important part of the legal process. His Honour noted that:
…First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them…
…The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.[2]
[1] (1996) 186 CLR 541,
[2] Idem at 552-553. Footnotes and citations omitted.
While acknowledging that applications received out of time will generally not be accepted, it is generally accepted that the “checklist” outlined by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment[3] (Hunter Valley) should be taken as the guide by this Tribunal in determining EOT matters.
[3] (1984) 3 FCR 344.
That list provides as follows[4]:
(a)an applicant must show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend the time;
(b)a distinction is to be made between an applicant who has “rested on his 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 he or she contests the finality of the decision;
(c)any prejudice to the respondent caused by the delay;
(d)whether any others or the general public would suffer any prejudice as a result of the extension, or established practices be upset;
(e)the merits of the substantial application; and
(f)“[c]onsiderations of fairness as between the applicants and other persons” in a similar position.
[4] Idem at 348-349.
This checklist has been endorsed in many further decisions of the courts, albeit on occasion with slight variations or modifications.[5] However, the Tribunal has accepted that this checklist effectively covers all the matters to which the Tribunal should have regard.
[5] Hillman and Australian Postal Corporation (Compensation) [2017] AATA 1411; Phillips v Australian Girls’ Choir Pty Ltd [2001] FMCA 109; BHC16 v Minister for Immigration and Border Protection [2019] FCA 1326, [3]; Parker v R [2002] FCAFC 133, [6].
Section 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) requires that appeals against reviewable decisions be lodged within 28 days of the decision in question being made. Thus, this application is some 14 to 15 months out of time.
In this instance, it is necessary to establish the essence of the determination of the reviewable decision in question. What the AAT1 was asked to decide was whether there should be a variation of the percentage of childcare used to determine levels of child support assessment. The relevant part of the AAT1 decision is:
2. The case was originally registered on 18 October 2013. Consistent with orders issued by the Federal Circuit Court, from 18 May 2018 the child support assessment was based on each parent having 50% care of the children.
3. On 25 June 2018 [the Applicant] advised the Child Support Agency of the Department of Human Services (the Department) that he had 100% care of the children with effect from 20 June 2018. [The Applicant] said that this was a one-off block of care and that care would revert to the existing arrangement with effect from 4 August 2018. The Department was unable to contact [the Other Party] and, on 23 July 2018, decided to accept [the Applicant’s] advice. As a result, the child support assessment was changed to reflect that [The Applicant] had 100% care of the children from 20 June 2018.
4. On 23 July 2018 [the Other Party] objected to the decision, claiming that the court orders provided that if the parents travelled overseas with the children the parent losing care would subsequently make up the lost care. On 8 November 2018 a Department objections officer allowed the objection, finding that the court orders mandated that [the Other Party] make up the lost care and that she had attempted to do so. The objections officer found that care was consistent with the court orders.
The times that the parties were overseas were, in the case of the Applicant from 26 June 2018 to 26 July 2018 (during which time he had the children with him), and in the case of the Other Party from 20 June 2018 to 3 August 2018.
The parties were bound by an order of the Federal Court (dated 18 May 2018):
23. That in the event that the children miss out on living with or spending time with the non-travelling parent in accordance with these Orders as a result of the children travelling overseas or interstate with the travelling parent, upon the children’s return the children shall spend additional time with the non-travelling parent in lieu of any time missed as a result of the children’s travel, such time to occur as agreed by the parents and within 60 days of the children’s return.
It was agreed by the parties that the make-up of the “lost care” period had not taken place.
After considering the evidence put by the parties, including their oral evidence under affirmation, the Tribunal made a decision that the percentage of care should not be varied.[6]
[6] AAT1 decision 2018/SC015451 dated 26 February 2019.
It is that decision which the Applicant would seek to challenge in a substantive-merits hearing should his application for an EOT to bring such proceedings be granted by this Tribunal.
The Tribunal turns to consideration of the Hunter Valley principles as they apply to this application.
Of those principles, those relating to prejudice to the Respondent (the Child Support Registrar, who takes a neutral position in this application) (principle (c)), and to fairness between applicants in a similar position (principle (f)), may be set aside from the outset as not relevant.
In the first instance the Tribunal must consider whether there has been a reasonable explanation for the delay. The reason given by the Applicant in his formal application reads as follows:
I was waiting for the child support time to be made up by the other party as per your ruling. The time was never made up, hence my request to have this matter reviewed again.
…
Your ruling was based on the words and not the actions of the respondent.
The respondent was to make up for lost time from her 2018 world holiday with her boyfriend, within 60 days of her arrival in Australia, as per the court orders.
It's been over 600 days and this time has not been made up and is still outstanding. I have therefore paid my children's mother child support whilst she went on worldwide holiday and me having 100% care of my children.
I do not believe this is fair or just and seek a review of this matter.
It should be noted that the actual time of the delay in lodging an appeal is not itself the determinative factor. It has been held that relatively short delays do not necessarily mean that an application will be granted;[7] nor that quite lengthy delays will inevitably be unsuccessful.[8] The determinative factor is the acceptability or otherwise of the reason(s) given for the delay in lodgement.
[7] Secretary, Department of Family and Community Services and Roberts [2003] AATA 269 at [16].
[8] Berkelaar v Comcare [1997] AATA 12015.
The Tribunal does not regard the Applicant’s stated reasons as constituting a reasonable explanation for the delay. The Applicant had ample time to take such steps as might have been required to ensure that the orders of the Court were enforced and to the extent that this proved difficult, to determine a reasonable time in which to make a claim arising therefrom. A period of delay of “over 600 days” is by no means “reasonable”.
A delay in well over a year by the Applicant (“resting on his rights”) may well be taken to have led the Other Party and the Registrar to conclude that the matter was resolved by the decision of the AAT1, that the matter was not the subject of continued challenge and that they were secure in making arrangements consonant with that conclusion.
There would be “prejudice to any others” to the extent that the Other Party would be required to participate in further hearings of a matter which she doubtless regarded, and had the right to regard, as concluded[9] and, in the event that the percentage of care was varied (for the short period of time involved), she might suffer some financial loss.
[9] Rouhani and Child Support Registrar (Child Support) [2020] AATA 2145 at [34].
The Registrar has made no submission as to prejudice to itself and has remained neutral in the proceedings. The Tribunal does not therefore need to consider its position.
The question of what matters are to be considered, and how they are to be assessed in addressing the merits of the substantive application, have been examined by a number of authorities.
In Kuljic, von Doussa J stated:
One of the principal considerations to be addressed in deciding whether it is fair and equitable in all the circumstances to extend time is whether the merits of the proposed appeal are such that if an extension of time is granted there is some prospect of success in the appeal. If a consideration of the merits indicates that there is no question to be agitated on the appeal, and there is no prospect of success, it would be futile to grant an extension of time and most unjust to the respondent to subject the respondent to the costs of defending a pointless appeal.[10]
[10] Nedeljko Kuljic v Secretary, Department of Social Security [1994] FCA 886, [6].
In Pohahau, Wigney J stated:
It will seldom be in the interests of the administration of justice to grant an extension of time where the proposed application has little or no prospects of success. Such a finding should ordinarily only be made where the grounds of the application on their face appear to have little or no prospects of success and there is no need for any detailed argument in respect of the merits. It follows that an assessment of the prospects of success on an extension of time application should not ordinarily travel “beyond an examination of the grounds at what should be a reasonably impressionistic level … into a fuller consideration of the arguments for and against each ground of review.[11]
[11] Pohahau v Minister for Home Affairs [2019] FCA 1243, [35]. Citations omitted.
In Jackamarra, the High Court quoted with approval the remarks of Lord Denning MR in R v Secretary for the Home Department; Ex parte Mehta where His Lordship said:
We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it is proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time.[12]
[12] Jackamarra v Krakouer (1998) 195 CLR 516, 519 per Brennan CJ and McHugh J and 540 per Kirby J.
The essential elements of this case have already been outlined.
In MZABP, Mortimer J stated:
As I have observed previously, it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage.[13]
[13] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [62]. Citations omitted.
Her Honour’s comments were endorsed on appeal[14] and have been referred to in several further decisions of the Federal Court.[15]
[14] MZABP v Minister for Immigration & Border Protection [2016] FCAFC 110
[15] Jamal v Secretary, Department of Social Services [2018] FCA 513 at [6]; Pohahau v Minister for Home Affairs [2019] FCA 1243 at [35].
Applying the “impressionistic level” of consideration to this case, it is apparent that for the period from 26 June to 26 July 2018 the Applicant had 100% care of the children but was credited with only 50% care in terms of relevant child-care payments.
Section 2.2.2 of the Child Support Guide deals with such situations. It states:
One-off block of 100% care
Where a parent or carer unexpectedly and temporarily provides 100% care of a child, the Registrar may recognise that the person has 100% care although they are not expected to continue to have that level of care. In these situations, the Registrar will determine the care over a short care period related to the unexpected circumstance (sections 49(1)(a) and 50(1)(a)). When care returns to the normal pattern, either carer may request a new care percentage determination.
The period of unexpected care will generally need to be at least 4 weeks in length in order for the Registrar to make such a determination. However, shorter periods can be considered, especially where there is a possibility the period may be extended.
Example: Jason and Anita have 1 child, Robyn. Robyn usually lives with Jason 100% of the time. Jason needs to go to hospital for 3 weeks for an operation and may require a further period of intensive rehabilitation where he will not be able to care for Robyn. Anita will look after Robyn during this time. The Registrar makes a one-off block of 100% care decision. When Robyn returns to Jason's care, Jason contacts DHS and the Registrar makes a new care decision based on the ongoing care of each parent.
It would thus appear that the Applicant would have some reasonable prospect of success were his application to be subject to a full merits-based hearing. Indeed, at first instance the Child Support Agency accepted the Applicant’s claim for the adjustment of care for the one-off block of four weeks, but when the Other Party later objected to that determination, her objection was upheld, and the adjustment disallowed.[16]
[16] AAT 1 decision (26 February 2019) 2018 SC015451 at [3]-[4].
Discussion
In Phillips v Australian Girls’ Choir[17] McInnis FM made two important points, inter alia, about EOT applications in relation to the provision of explanations for delay:
There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The “prescribed period” of 28 days is not to be ignored.
It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained. It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (Comcare v A'Hearn [1993] FCA 498; (1993) 45 FCR 441 and Dix v Client [sic] Compensation Tribunal [1993] VicRp 21; (1993) 1 VR 297 at 302).
[17] [2001] FMCA 109, Some citations omitted.
The reference to Comcare v A'Hearn is to the finding of the Full Federal Court (Black CJ, Gray and Burchett JJ) to the effect that:
We note that the tribunal used language that might be taken to suggest that it is a precondition for success in such an application that an acceptable explanation for the delay must be given. Although it is to be expected that such an explanation will normally be given, as a relevant matter to be considered, there is no rule that such an explanation is an essential precondition.[18]
[18]COMCARE V A’HEARN (1993) 119 ALR 85 AT 88.
The Applicant may thus argue that his delay of over a year in seeking to reinstate proceedings via an EOT application should be given little weight as should any prejudice to the Respondent, and that he has some prospect of success were his matter to come to a full hearing of the merits.
Against this might be weighed the principle of de minimis non curat lex.[19]
[19] The law is not concerned with trifles. “The Reward” [1818] 2 Dods. 265, 165 E.R. 1482 at page 1484.
This principle has been recognised in relation to matters before this Tribunal as was made clear by Hill J in Farnell[20]overturning a decision of the Tribunal which failed to recognise the principle:
These examples illustrate two principles. The first is that in an appropriate case the maxim de minimis non curat lex will be applied as a rule of interpretation. To the extent that the learned Deputy-President held that the maxim had no significance as a rule of interpretation of statutes, he erred in law. The second principle which these cases illustrate, however, is that the applicability or otherwise of the maxim depends upon the context in which it falls to be considered.
[20] Farnell Electronic Components Pty Ltd v Collector of Customs (1996) 142 ALR 322 at [327].

In Beames, the Federal Court, in the context of a large debt, referred to the fact that:
the slightly nebulous $600 does not appear to proffer any significant benefit. One might also argue for application of the maxim de minimis non curat lex.[21]
[21] Re Beames; Ex parte Beneficial Finance Corporation Ltd (1985) 7 FCR 216 at [44].
There is no evidence before the Tribunal as to what sum of money might be involved in a recalculation of four weeks of child-support at 100% rather than 50% at whatever rates would have been applicable in June/July 2018.
However, for this matter to be properly resolved in conformity with the order of the Federal Court, the Other Party must make some arrangements for her to “make up” the four week period and have 100% care and custody of the children on the same basis that was the case with the Applicant in June/July 2018.
Evidence given to the Tribunal suggests that there is a continuing dispute between the parties as to how this conformity with the court order is to be achieved with allegations that the children (or some of them) are resistant to spending time with the Other Party or that she has been frustrated by the Applicant in achieving this outcome.
What would then arise is that there would be a necessity for an adjustment of a “one-off block” of time where the arrangement between the parties would be altered and so would the child-support payments. A new determination would need to be made for the “one-off block” and then another once the previous arrangements had been resumed. Whether the two periods of “one-off blocks“ would be equivalent, and hence there would be no net change of financial arrangement between them, is a matter that the Tribunal cannot determine.
However, the Tribunal is not the place for the parties to sort out their family dispute nor seek some tit-for-tat arrangement, involving not only whatever inconvenience they inflict on each other but equally a potential waste of the time and resources of the Child Support Agency.
Conclusion
In considering all the elements identified in Hunter Valley and other authorities, and given the delay in lodgement of the EOT application, the prejudice to the Other Party, and the potential triviality of the net outcome of rival sets of “one-off blocks” being calculated, the Tribunal finds that there is “public interest” (per Brisbane South) for this matter to be disposed of expeditiously.
DECISION
The application for an extension of time is refused.

I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

.........................................[sgd]...............................
Associate
Dated: 10 September 2020

Date(s) of hearing: 21 August 2020

Applicant: By telephone

Solicitors for the Respondent: Services Australia

Other Party: By telephone

Date(s) of hearing:	21 August 2020
Applicant:	By telephone
Solicitors for the Respondent:	Services Australia
Other Party:	By telephone