Bardsley and Child Support Registrar (Child support)

[2021] AATA 1765

Bardsley and Child Support Registrar (Child support) [2021] AATA 1765 (13 April 2021)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2021/MC020919

APPLICANT:  Mr Bardsley

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:               13 April 2021

APPLICATION:

An extension application made on 2 March 2021 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 13 August 2020, despite the 28 day period for applying for review having ended.

CATCHWORDS

CHILD SUPPORT – application for extension of time – no satisfactory explanation for the delay – little merit – prejudice to the other party – 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.

EXTENSION OF TIME CRITERIA

In its assessment of an extension of time application, the tribunal must consider the reasons for the delay; the merits of the application and prejudice (if any) to all parties concerned.[1]

[1] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186

DECISION:

The extension application is refused. In summary, this is because the tribunal is not satisfied an adequate explanation for the delay in seeking a review exists[2] especially as the records show Mr Bardsley was notified of the decision via letter dated 10 October 2020.[3]  Mr Bardsley states in his application that he did not receive notification of the decision but the law deems the letter to have been received.[4] Careful review of the papers confirms the letter was not returned to the Child Support Agency by Australia Post and so the tribunal deems receipt.  The tribunal also considers the delay in seeking a review prejudices the other party who is entitled to consider the matter finalised after the expiry of the review period and presumably would have budgeted to receive the level of support assessed.  The tribunal also considered the merits of the application.  The tribunal is not required to forensically assess the matter for the purposes of this extension of time application[5], however, on review of the evidence before it, is satisfied the decision, (subject of the extension application),  has been sufficiently grounded in material reasonably capable of supporting it, resulting in a finding the merits are weak, at best. Redress however can be sought administratively via the Child Support Agency if Mr Bardsley can demonstrate a change in circumstances as he claims.  Finally, there is prejudice to the general public due to unnecessary administration costs which would not be afforded to other individuals in similar circumstances especially where the timeframe for review was clearly articulated in the decision statement and covering letter forwarded by the Child Support Agency.[6] 

[2] 173 days (or 5 months and 20 days) out of time

[3] Folio 13

[4] section 31 of the Child Support (Registration and Collection) Regulations 2018. Subsection 31(2) of the Regulations provides that “If service has been attempted by use of prepaid post, then, unless the contrary is proved, service will be taken to have been effected at the time when the notice or other communication would, in the ordinary course of the post, have arrived at the place to which it was addressed.”

[5] Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516 Per Brennan CJ and McHugh J at [3], [also Kirby J at 66]. Footnotes and citations omitted.

[6] Folio 2 of the papers

Senior Member D Benk