YZKR and Child Support Registrar (Child support)
[2025] ARTA 7
•7 January 2025
YZKR and Child Support Registrar (Child support) [2025] ARTA 7 (7 January 2025)
Applicant/s: YZKR
Respondent: Child Support Registrar
Tribunal Number: 2024/6620
Tribunal:General Member D Stevens
Place:Sydney
Date:7 January 2025
Decision: The Tribunal extends the period during which the Applicant may apply to the Tribunal to seek review of the decision of the AAT, to 30 August 2024.
................................[SGD]........................................
General Member D Stevens
CATCHWORDS
CHILD SUPPORT – extension of time request – where original decision refused to grant extension of time – where application lodged by one parent more than 28 days later – extension of time granted.
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth) ss 19(1)-(3), 19(5)-(7).
CASES
Comcare v A’Hearn (1993) 45 FCR 441.
Agar v Australian Postal Corp (1998) 56 ALD 361.
Hunter Valley Developments v Cohen (1984) 3 FCR 344.
Re Dolan and Comcare (1993) 29 ALD 887.
Commissioner of Taxation v Brown [1999] FCA 1198.
Minister for Health & Aged Care v Pharmacia & Upjohn Pty Ltd (2001) 65 ALD 76.
Statement of Reasons
APPLICATION
The Applicant seeks an extension of time to 30 August 2024 in which to apply for a review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT), which on 24 July 2024 refused an application for an extension of time for a first review by the AAT (the decision) of a decision of the Child Support Registrar made on 14 March 2023.
In other words, and for clarity, I am considering an application for an extension of time to lodge an application seeking review of a refusal to grant an extension of time by the AAT.
FACTS AND BACKGROUND
This matter stems from a decision by an employee of Services Australia on 15 July 2020. On 6 December 2022, the applicant objected to that decision, considerably out of time. On 23 January 2023, the Child Support Registrar granted an extension of time to the applicant. On 14 March 2023 the Child Support Registrar gave their decision in the matter. The applicant had 28 days from the date he was notified of that decision to seek a review by the AAT, that is until around 11 April 2023. The Applicant did not lodge an application for review by the AAT until 11 June 2024, approximately 14 months after the end of the 28-day period. The application to the AAT included an application for an extension of time. His application for an extension of time to seek review by the AAT was refused on 24 July 2024.
At the outset of the hearing before me, the parties agreed on the following facts:
·The AAT decision refusing an extension of time to lodge was provided to the Applicant on 29 July 2024.
·The prescribed time for seeking review of the decision was 28 days from the date the decision was provided to the Applicant, that is, it ended on 26 August 2024.
·The Applicant was notified and aware of the prescribed time.
·The Applicant filed an application for review of the decision on 28 August 2024, without attachments.
·The Applicant filed an application for extension of time for review of the decision with supporting documents on 30 August 2024.
APPLICABLE LEGISLATION
Given the facts agreed by the parties and the issues to be decided, the relevant provisions of the Administrative Review Tribunal Act 2024 (the Act) are as follow:
Section 19
(1) A person (the applicant) may apply to the Tribunal to extend the period during which the applicant may apply to the Tribunal for review of a decision.
(2) The Tribunal may, by order, extend the period if the Tribunal considers that it is reasonable in all the circumstances to do so.
(3) The Tribunal may extend the period even if it has expired.
…
(5) The Tribunal may:
(a) give notice of the application to extend the period (the extension application); or
(b) require the applicant to give notice of the extension application;
to any other person the Tribunal considers is affected by the extension application.
(6) A person notified under subsection (5) may notify the Tribunal within 14 days that the person wishes to oppose the extension application.
(7) If a person notifies the Tribunal under subsection (6), the Tribunal must not extend the period unless the Tribunal has given the applicant and any person who notified the Tribunal under subsection (6) a reasonable opportunity to adduce evidence and make submissions to the Tribunal in relation to the extension.
ISSUES TO BE DECIDED
Given the agreement between the parties, the issue for me to decide is that which is set out in subsection 19(2) of the Act, that is, whether it is reasonable in all of the circumstances of this matter for me to exercise my discretion to extend the period during which the applicant may apply for review.
HEARING, EVIDENCE AND SUBMISSIONS
The respondent notified the AAT pursuant to subsection 19(6) of the Act that they opposed the extension application. Pursuant to subsection 19(7), the matter was listed for hearing on 30 September 2024. The hearing commenced on that day, with the applicant appearing for himself, and the respondent represented by Ms James from Services Australia. I became aware of a pressing personal matter affecting the Applicant, and with the consent of the Respondent stood the hearing over to 17 October 2024. This matter is relevant to my consideration of the application before me, and so I will note that it involved the Applicant’s partner’s admission to hospital due to complications with her pregnancy.
At the hearing, the parties agreed to the facts set out in paragraph 4 herein.
The Applicant gave oral evidence and was cross-examined by the Respondent’s representative. Furthermore, both parties made submissions. I had available to me the decision, with the reasons for the decision, together with Tribunal documents. In addition, I have materials from the Applicant including the following:
·Application for second review of decision dated 28 August 2024
·Application for extension of time dated 28 August 2024
·Document headed “Reasons for leave for out of time application”, undated, 13 pages (Reasons)
·Document headed “Response to Registrar’s outline of Submissions”, undated, 4 pages
·Document headed “Further submissions in reply to the oral submission made by the respondent at the last hearing”, 3 pages
·Submissions without heading, received by email 28 November 2024, 2 pages
I also have materials from the respondent including the following:
·Outline of Submissions dated 26 September 2024
·Supplementary submissions dated 25 October 2024
CONSIDERATION
The respondent’s Outline of Submissions accurately analyses the applicable authorities to both set out the issues relevant to this matter to which I must turn my mind in deciding whether or not to grant an extension of time and provide a summary of the available guidance.
Explanation for delay
The authorities establish that the provision of an acceptable explanation for the delay in seeking review is not a prerequisite for consideration of providing an extension of time to seek review but is one of the factors to be taken into account.[1]
[1] Comcare v A’Hearn (1993) 45 FCR 441.
There is dispute between the parties as to whether an acceptable explanation has been provided. The Respondent submits that much of the detail provided by the Applicant in his testimony and various submissions relates to events before 29 July 2024, when the decision was provided to the applicant, going back to 2019, and so does not explain why the application for review of the decision was filed out of time in August 2024. This includes much of the information in the Applicant’s 13-page Reasons.[2]
[2] Respondent’s Outline of Submissions, paragraphs 46 – 48.
While the Applicant asserts that he has “provided sufficient explanation of why my application for appeal was lodged two days late,”[3] he largely does not specify why, having been able to lodge an application for review by the AAT on 11 June 2024, he was not able to then seek review of the decision of 24 July 2024 by 26 August 2024.
[3] Submissions without heading, received by email 28 November 2024, page 1.
For example, in his 13-page Reasons he advises of his arrest and charging by NSW Police on 30 March 2023. In his “Further submissions” he adds to this that NSW Police seized and have retained all of his family’s computers, hard drives, and records. However, none of this by itself explains why, having initially sought review before the AAT on 11 June 2024, he was not able to seek review of the decision of 24 July 2024 by 26 August 2024.
Also in his 13-page Reasons, and in his evidence before me, the Applicant refers to “new evidence” arising out of Family Law proceedings, which he was only able to use after 23 July 2024. I do not accept this as, or even as part of, a satisfactory explanation for the Applicant’s delay in seeking review of the decision – it was not proffered as a reason for his delay in seeking initial review before the AAT.
Notwithstanding the Respondent’s submission that little explanation has been offered by the applicant in respect of the period after 29 July 2024, it is appropriate that I consider the entirety of the period involved rather than narrowly focus on the 28 – 32-day period after 29 July 2024.[4]
[4] Agar v Australian Postal Corp (1998) 56 ALD 361.
I set out below the factors that I give particular weight to in considering whether the Applicant has given an acceptable explanation.
The Applicant does not deny that he was aware of the 28-day period in which to seek review. Rather, his evidence is, as set out in his written application for extension of time, that he entered the final date incorrectly in his diary as 26 August. He refers to the content of his 13-page Reasons to explain why his attention was scattered. There is much within this document that I would not take into consideration. Many Applicants before the Tribunal have difficulties in their lives yet manage to lodge applications within time. However, in general terms that document gives a sense of the great chaos of the Applicant’s life, which was also reflected in the way in which he gave his evidence.
In those Reasons the Applicant sets out the time he says he must devote to his children, and that he must put them first. Many applicants before the Tribunal have children to whom they must (very appropriately) devote time, and I give little weight to this submission. However, there are two aspects I take into account. In August 2024 one of his children was a 10-month-old baby. In addition, noting the incident I refer to in paragraph 7 herein, at the same time his partner was in an advanced stage of pregnancy and experiencing complications. I accept that this is a combination of circumstances which would explain an oversight and / or a slight delay in seeking review.
The Applicant’s evidence included his involvement in multiple court and administrative proceedings, such as those arising from his arrest for serious criminal offences in March 2023. There is no evidence that there was any court date proximate to the period after 29 July 2024, but I accept that these proceedings would be a constant presence within the Applicant’s mind. The Applicant’s evidence includes that he had to make submissions in relation to another matter before the AAT at around the same time. He also referred to ongoing Family Law proceedings. Taken altogether, I accept that these are also circumstances which would explain an oversight and / or a slight delay in seeking review.
On these bases, I consider that the Applicant has provided an acceptable explanation for his short delay, a factor that I can take into account in his favour.
Length of delay
There are many statements within the authorities that the starting point is that applications must be made within time. Wilcox J stated in Hunter Valley Developments v Cohen (1984)[5] that “… it is the prima facie rule that proceedings commenced outside the period will not be entertained.” It should not be assumed that the Tribunal will grant even a short extension of time.[6]
[5] Hunter Valley Developments v Cohen (1984) 3 FCR 344.
[6] Re Dolan and Comcare (1993) 29 ALD 887.
Nonetheless, it is common for the Tribunal to exercise the discretion to grant short extensions, especially to non-Government Applicants. In this matter, on the best case for the Applicant, the extension sought is 2 days, and on the worse case 4 days, either of which can be described as very short periods of extension. This factor does not militate strongly against granting the extension.
Prejudice to other parties
The Respondent raises the possibility of prejudice to the other parent in this matter, noting that the matter involves the collection of child support payments by the Respondent from the Applicant, which were then paid to the other parent.
The other parent was provided with an opportunity to attend the hearing of this matter, but did not do so.
In their Response, the Applicant does not consider the possibility of prejudice to the other parent at all, taking the position that the only persons to have suffered prejudice are himself and the children he shares with the other parent.
If I do not allow the extension of time, there can be no prejudice to the other parent, as the matter comes to an end. If I allow the extension of time, that will then require the Tribunal to review the decision not to grant an extension of time to the Applicant in respect of the decision of the Respondent. If that is unsuccessful, the matter comes to an end, and again there will be no prejudice to the other parent. If the extension of time is granted, then the Tribunal will consider the merits of the application. If the Applicant is unsuccessful, the matter comes to an end. Only if the Applicant is successful, may there be prejudice to the other parent, as in the Respondent’s submission, they “will likely have an increased debt to the Registrar”. I accept that there is the possibility of prejudice to the other parent, but that is at some remove from my decision.
Prospects of success
The Applicant submits that “I have a high likelihood of success,” in respect of their substantive appeal.[7]
[7] Submissions without heading, received by email 28 November 2024, page 1
In the Respondent’s Outline of Submissions, the “Registrar accepts that it cannot be said that the Applicant’s proposed review of the AAT1 refusal decision has no prospect of success.”[8] In the Supplementary Submissions, the “Registrar considers the prospects of the ART second review setting aside the AAT1 refusal decision to be poor when you consider the delay in seeking review and consider the merits of the application to credit the payments.”[9]
[8] Paragraph 57
[9] Paragraph 6
Both the AAT decision-maker and the Respondent note that the delay of 14 months in seeking review by the AAT is substantial; and it is. It is certainly greater than the 2–4-day delay that I am considering here. However, there is no period of delay that is an absolute bar. This period of delay is not in itself a fatal flaw which leads to there being no prospect of success. If it was, I would refuse the application.
In his 13-page Reasons which was before me, the Applicant has gone into considerably greater detail and provided a longer list of reasons seeking to explain his 14-month delay, than the AAT had the opportunity to consider.
Regarding the merits of the application to credit the payments, that is, the merit of the substantive case, I agree with the Respondent’s submission that I am not to engage in a merits review, and I have not done so.[10] As per Commissioner of Taxation v Brown[11] and Minister for Health & Aged Care v Pharmacia & Upjohn Pty Ltd,[12] I have considered whether the Applicant has an arguable case. The Applicant has now raised the possibility of fraud by the other parent, which was not raised before and therefore not considered by the AAT. The Applicant has also raised the availability of new evidence, namely affidavit evidence from the other parent which was produced in relation to Family Law proceedings. The Applicant says that he was only given permission to use that evidence on 23 July 2024. I have rejected this as an explanation for the Applicant’s delay in seeking review of the AAT decision. However, it may be relevant as evidence in relation to the substantive issue.
[10] Outline of Submissions at paragraph 56.
[11] Commissioner of Taxation v Brown [1999] FCA 1198.
[12] Minister for Health & Aged Care v Pharmacia & Upjohn Pty Ltd (2001) 65 ALD 76.
On balance, the issues in relation to the prospects of success of the application for time are not clear cut. It is not the case that there are no prospects or a fundamentally flawed case such that I should refuse the application on this basis alone. In this matter, it is one of the factors to be considered.
Public interest
This matter does not involve any matter of great principle or wider application such that public interest factors militate in favour of granting an extension of time.
CONCLUSION
The delay in this matter is short, either 2 or 4 days. On my assessment, given the chaotic nature of his life in recent years, his multiple concurrent legal and administrative proceedings, his parenting responsibilities including caring for a 10-month-old baby, and his familial responsibilities including caring for a partner with a complicated pregnancy, the Applicant has provided an acceptable explanation for the short delay.
In relation to the strength of the substantial application, which is highly relevant, I have not conducted a merits review, nor am I required to. The Respondent has raised issues of concern regarding that application, however the issues raised by the Applicant include possible new evidence that was not available at the time of the original decision, nor at the time of the AAT decision.
The delay of 14 months in seeking review by the AAT is substantial, however that is not the only factor to be considered. Given the greater detail and the range of reasons for delay provided by the Applicant in his 13-page Reasons than provided to the AAT at first instance, the application has some prospects and cannot be refused outright.
For the above reasons, taking into account all of the factors raised by the authorities as being appropriate for consideration in relation to an application for an extension of time, that are relevant to this matter, it is appropriate that a very short extension of time be granted to the Applicant to seek review of the decision of the AAT not to provide an extension of time.
DECISION
The Tribunal extends the period during which the Applicant may apply to the Tribunal to seek review of the decision of the AAT, to 30 August 2024.
Date(s) of hearing: 30 September 2024 and 17 October 2024 Applicant: YZKR Respondent: Child Support Registrar Solicitors for the Respondent: Ms L James, Principal Government Lawyer, Services Australia
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