Zavala and Child Support Registrar (Child support)

[2019] AATA 1733

Zavala and Child Support Registrar (Child support) [2019] AATA 1733 (4 June 2019)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2019/BC016220

APPLICANT:  Mr Zavala

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                04 June 2019

APPLICATION:

An extension application made on 29 March 2019 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 19 December 2017 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

CHILD SUPPORT – application for extension of time - no satisfactory explanation for the lengthy delay - no merit - extension of time refused

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.

STATEMENT OF REASONS

1. Mr Zavala and [Ms A] are the parents of [Child 1] and [Child 2]. By letter dated 19 December 2017, the Child Support Agency (“CSA”) wrote to Mr Zavala to advise him that his request for an extension of time to object to an original decision dated 15 August 2017 had been refused. 

2. There is a time limit to apply for “AAT first review”: see section 90 of the Child Support (Registration and Collection) Act 1988 and paragraph 29(1)(d) of the Administrative Appeals Tribunal Act 1975.  Mr Zavala was required to make her application within 28 days of receiving the decision letter dated 19 December 2017.

3. Mr Zavala made application for AAT first review on 29 March 2019, well outside the 28 day period. In his written application to the Tribunal, Mr Zavala advised the following:

   At the time of the original decision, I had no practical ability to engage with the assessment process (being forced from my home under demonstrably false accusations of domestic violence, and living out of my car) or to understand my rights and responsibilities, and I believe I should have been given far more consideration and latitude. I did not apply for an extension as I believed the Child Support Office was yet to answer my concerns about the original decision and surrounding process. I suppose I have always believed more information or support would be forthcoming, so I tried to participate in good faith on that basis, trusting that the original decision would be reversed eventually under normal process. It's now clear that that assumption has failed. The original decision has material impacts on my child support case currently, as my ex-partner's income assessment at that time (which I believe was incorrect/unfair) is still impacting on our case today. This is highly relevant to my ex-partner's current appeal to the AAT so I need to make sure this matter is heard.

4. The established cases indicate that the starting position is the prima facie rule that proceedings commenced outside a statutory period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at [416]). However, the primary concern “…is to do that which will enable justice to be done between the parties” (see Martinsen v Secretary, Department of Family & Community Services [2004] FCA 297 per Spender J). Spender J quoted McHugh J in Gallo v Dawson (1990) 64 ALJR 459 as follows:

   In order to determine whether the rules [imposing time limits] will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time ...

   When the application is for an extension of time …it is always necessary to consider the prospects of the applicant succeeding in the appeal …

5. In line with Wilcox J’s survey of cases in Hunter Valley Developments P/L v Cohen (1984) 3 FCR 344, the Tribunal proposes to consider the matters identified in Gallo v Dawson under the following headings:

   ·the explanation for the delay;

   ·the merits of the substantial application;

   ·any prejudice to the other party including any prejudice in defending the proceedings occasioned by the delay;  and

   ·any public interest considerations that might flow from a successful application including “the unsettling of other people … or of established practices”.

Explanation for the delay

1. The absence of a reasonable explanation for delay will ordinarily be fatal to an application for an extension of time.

2. Generally speaking, factors outside a person’s control, such as ill health or natural disasters, are viewed favourably. Here, Mr Zavala was clearly advised of his right of review, and made some incorrect assumptions concerning the likelihood of the decision being changed in his favour. Whilst there are some mitigating factors raised which might be weighed more favourably were there a short delay, here the delay is extensive. In the Tribunal’s assessment, Mr Zavala appears to have elected to rest on his rights, and he does not have a reasonable explanation for the very long delay.

3. This factor weighs very heavily against granting an extension of time.

Merits of the objection

1. There is no point to granting an extension of time if an application is unlikely to succeed.

10.The CSA decision refusing to grant an extension in which to object appears entirely reasonable on its face. A relevant factor in refusing to grant an extension was the lack of merit in respect of the original substantive decision which set both parents’ incomes at levels based on their respective salaries. It appears to the Tribunal that, on the substantive issue, Mr Zavala would not be likely to succeed.

11.This factor also weighs heavily against granting an extension.

Potential prejudice to [Ms A]

12.The Tribunal is particularly concerned about potential prejudice to [Ms A].

13.[Ms A] was entitled to rely on the decision in the absence of an objection by Mr Zavala within the 28-day period. The Tribunal observes the delay here is very significant; this factor weighs very heavily against granting an extension.

Public interest considerations

14.Parliament has seen fit to set a 28-day time limit for the lodgement of objections so that parents (and the CSA) can act with certainty as to the outcome when the objection period has elapsed. The public has an interest in reviews of decisions made by the CSA being performed in a timely fashion and in a manner that ensures all applicants are treated fairly and equally. Accordingly, an extension of the time for objection is not to be automatically granted.

Conclusion

15.Mr Zavala does not have a reasonable explanation for what is a very long delay. He has effectively rested on his rights. There appears no substantive merit to his original complaint. The Tribunal is also particularly concerned about prejudice to [Ms A] if the application were allowed to proceed.

16.Accordingly, the Tribunal considers the interests of justice are best served by refusing an extension of time.

17.The Tribunal observes a later change of assessment decision relating to a later period is presently before the Tribunal; the Tribunal does not consider this matter has any direct bearing on the resolution of that matter.