Crossan and Child Support Registrar (Child support)

[2021] AATA 1531

Crossan and Child Support Registrar (Child support) [2021] AATA 1531 (29 April 2021)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2021/BC021136

APPLICANT:  Mr Crossan

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:               29 April 2021

CATCHWORDS

CHILD SUPPORT – application for extension of time - no satisfactory explanation for the delay – little merit – prejudice to the other parent due to delay - extension of time refused

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted 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.

APPLICATION:

An extension application made on 30 March 2021 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 14 October 2019 despite the 28 day period for applying for review having ended.

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 Crossan was notified of the decision via post on 14 October 2019[3] and such notice is deemed to be received.[4]  The letter enclosing the decision and the decision itself clearly stipulate and place Mr Crossan on notice that…..

[2] 505 days out of time (or 72 weeks and 1 day)

[3] Folio 8

[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.”

‘if you think this decision is wrong, you can ask the Administrative Appeals Tribunal (AAT) to review it.  You must do so within 28 days from the date you receive this letter….’

No clear reason was advanced as to why Mr Crossan did not seek a review earlier.  There is no medical evidence to support incapacity or any cognitive issues which prevent an understanding of his review rights (as stipulated in the correspondence received from the Child Support Agency) or which would have prevented an earlier application for review.

The tribunal also considered the delay in seeking a review prejudices the other party who is entitled to consider the matter finalised after the expiry of the 28 day review period and presumably would have arranged the budget to meet the level of support assessed. 

The tribunal next 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.   If Mr Crossan’s circumstances have subsequently changed, it is open for him to again seek redress administratively via the Child Support Agency, particularly as the current assessment has been set until 30 June 2022.

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

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] 

[6] Folio 8 and 17