Davidson and Child Support Registrar (Child support) - [2018] AATA 3070

Davidson and Child Support Registrar (Child support) [2018] AATA 3070 (9 July 2018)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2018/MC014116
APPLICANT:  Mr Davidson
OTHER PARTY:  Child Support Registrar
DATE DECISION MADE:                9 July 2018

APPLICATION:

An extension application made on 17 May 2018 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 5 September 2017 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS
Child support – Application for extension of time to apply for review – No adequate explanation for delay – No reasonable prospect that the Tribunal would set aside the Registrar’s decision - Application 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

All statutory references below are to the Child Support (Registration and Collection) Act 1988.
In its child support jurisdiction, the Tribunal can review decisions of the Child Support Registrar if:
·The decision is of a type specified in section 89; and
·A valid application for its review is lodged with the Tribunal.
On 17 May 2018, Mr Davidson lodged an application with the Tribunal seeking a review of a decision made by the Registrar on 5 September 2017. The decision in question was a decision of the Registrar under section 83 not to allow Mr Davidson an extension of time in which to object to a decision about his child support assessment made in 2014. I shall refer to that decision as “the Registrar’s refusal decision”.
A decision of that type is reviewable by the Tribunal: see item 1 in the Table in section 89. However, in Mr Davidson’s circumstances, under section 90 an application to the Tribunal must be made within 28 days of the day on which the notice of the Registrar’s decision was served on him. I am satisfied that the Registrar served that notice by posting Mr Davidson a letter dated 5 September 2017. There is no suggestion that that letter was not sent to the correct address (strictly, the last address known to the Registrar). Applying statutory presumptions as to posting and delivery times, notice would be deemed to have been given on 18 September 2017. I note that Mr Davidson has not suggested that notice was not given to him in a timely way. I find that Mr Davidson’s application to the Tribunal was not made within the period prescribed in section 90.
That fact means that Mr Davidson’s application to the Tribunal is only validly made if:
·he applies to the Tribunal for an extension of time, as per section 91; and
·the Tribunal grants that extension of time.
Mr Davidson indicated in his application that he sought an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] AATA 3070
Decision Date: 9 July 2018

CaseChat Overview and Summary

Mr Davidson applied to the Administrative Appeals Tribunal (AAT) for an extension of time to seek a review of a decision made by the Child Support Registrar. The Registrar's decision, made on 5 September 2017, was to refuse Mr Davidson an extension of time to object to a child support assessment made in 2014. Mr Davidson lodged his application for review with the AAT on 17 May 2018, well outside the prescribed 28-day period for lodging such an application.

The AAT was required to determine whether to grant Mr Davidson an extension of time to apply for a review of the Registrar's decision. This involved considering whether Mr Davidson had provided an adequate explanation for the significant delay in lodging his application and whether there was any reasonable prospect that the AAT would ultimately set aside the Registrar's decision. The AAT noted that while the Child Support (Registration and Collection) Act 1988 did not provide specific guidance on how to determine extension applications, general case law indicated that relevant factors included the reasons for delay and the merits of the case.

The Tribunal reasoned that a presumption exists against allowing applications lodged out of time, and that the power to extend time should not frustrate the purpose of statutory time limits. Mr Davidson's explanation for the delay centred on the stress and impact of parenting order proceedings, which he claimed affected his mental state. However, the AAT found this explanation inadequate, particularly as the parenting proceedings concluded in December 2017, well after the original deadline for his application. Furthermore, the AAT considered the merits of Mr Davidson's underlying objection. The decision he sought to challenge was the Registrar's refusal to grant an extension to object to a 2014 assessment. The AAT noted that Mr Davidson had not objected to the 2014 assessment within the prescribed 28 days, and his reasons for the delay in objecting were based on changed circumstances rather than a disagreement with the original decision. The AAT concluded that there was no reasonable prospect that a review would set aside the Registrar's refusal.

Consequently, the AAT declined to grant Mr Davidson's application for an extension of time.

Orders