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[2009] FCA 120
Federal Court of Australia
2009-02-18
Marshall J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 The applicant, Mr Young, seeks judicial review of a decision of the first respondent, the Child Support Registrar, to extend time to enable his former partner, the second respondent, Ms Bitton, to lodge objections with the Complex General Objections Officer. The objections concern a decision of the Child Support Registrar to amend the respective levels of care of Mr Young and Ms Bitton for the purpose of calculating child support payments payable to Ms Bitton.
Extension required from the Court 2 The extension of time decision was made on 13 May 2008. Mr Young commenced this proceeding on 11 November 2008. Mr Young is self represented. His application does not mention the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Act") but he used Form 56 for the setting out of his application. That form is referable to O 54 of the Federal Court Rules which governs the making of an application under the Act to this Court. 3 Mr Young had until 10 June 2008 to apply to the Court under the Act to review the decision of 13 May 2008 (see s 11(3) of the Act). The proceeding was filed five months out of time. 4 The Court will not extend the time within which to commence a proceeding under the Act where it would be futile to do so. For the reasons explained below this is such a case.
Background Facts 5 Mr Young and Ms Bitton were previously married. They separated in January 2007 and divorced in or around April 2008. There are three children of the marriage. On 3 August 2007, the Child Support Registrar made a decision which resulted in reduced child support payments being made by Mr Young to Ms Bitton. In late March 2008, Ms Bitton applied to the Child Support Registrar for an extension of time to lodge an objection to the 3 August 2007 decision. 6 On 13 May 2008, Ms Valerie Shipway, an authorised decision maker of the Child Support Registrar, made a decision granting Ms Bitton an extension of time to lodge an objection to the 3 August 20007 decision. On 28 July 2008, Ms Shipway rejected Ms Bitton's objection. 7 On 11 August 2008, Ms Bitton sought a merits review of the 28 July 2008 decision in the Social Security Appeals Tribunal. The Tribunal is yet to determine that review. Further hearing of that review is stayed pending the determination of this proceeding. 8 The Tribunal commenced to hear Ms Bitton's appeal on 22 October 2008. On 27 October 2008, the Tribunal requested Mr Young to provide details of the actual levels of care he provided to his children for the period relevant to the decision under review in the Tribunal. 9 Mr Young considers that the timing issues have caused unfairness to him. He stresses that the information sought from him by the Tribunal relates to a period of eight months and not the 28 days allowed for the review of the decision made on 3 August 2007. He is concerned that that task would take him many weeks to perform and that the lapse of time may affect his ability to provide information to the Tribunal.
Concession 10 The Child Support Registrar concedes that Ms Shipway took into account an irrelevant consideration in exercising the power to grant Ms Bitton an extension of time. Her decision was influenced by the likelihood that Ms Bitton would appeal against a failure to grant her an extension. 11 Notwithstanding that the impugned decision is reviewable under the Act and would ordinarily be set aside on the basis referred to in the preceding paragraph, the Child Support Registrar submits that the Court should not extend time to allow the application to be dealt with or, alternatively, exercise its discretion to refuse relief.
Discretionary considerations 12 The Court is entitled to decline to grant relief to a party in an application under the Act, even if an error has been identified: see Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82. 13 As the decision of Ms Shipway to extend the time in which Ms Bitton could lodge her ultimately unsuccessful objection did not affect any substantive right of Mr Young, it appears to be futile to grant any remedy to Mr Young. It is unnecessary to form any conclusive view on this issue because of the Court's view about the lack of utility in extending the time for Mr Young to commence this proceeding.
Decision on extension 14 The Court refuses to extend the time within which Mr Young's application may be made to it. I do not consider that it would be proper in all the circumstances for the Court to exercise its discretion in favour of Mr Young. Mr Young has shown no acceptable explanation for the delay in commencing the proceeding. The reality is that the extension of time granted by Ms Shipway had no continuing relevance for Mr Young until the Tribunal required him, in October 2008, to provide evidence concerning care arrangements in 2007. More importantly, the decision to extend time for Ms Bitton to object did not prejudice Mr Young because her objection was rejected. Ms Bitton had an entitlement to seek a merits review in the Tribunal and would have done so in response to an adverse decision of the Child Support Registrar whether made on 3 August 2007 or at some later date. An obligation cast on Mr Young by the Tribunal to provide evidence dealing with an extended period of time is not a sufficient basis upon which to revisit an administrative decision which otherwise has no practical consequences. It does not matter that there is little prejudice to the respondents. A quashing of the extension of time decision made on 3 August 2007 cannot effect the reality that Ms Bitton's objection was dismissed and that she has an entitlement to a review in the Tribunal. It is inappropriate to delay that review any longer. 15 The setting aside of the decision of Ms Shipway, would, in one way or another, lead to the dispute between Mr Young and Ms Bitton returning to the Tribunal. No submissions to the contrary were made by Mr Young. Counsel for the Child Support Registrar also accepted the reality that whatever the outcome of this proceeding the dispute of child support payments would return to the Tribunal. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.
Associate: Dated: 18 February 2009 The Applicant appeared for himself.
There was no appearance by the Second or Third Respondents. Date of Hearing: 18 February 2009
Young
Child Support Registrar
(2000) 204 CLR 82