Neville and Child Support Registrar (Child support)

[2019] AATA 1745

Neville and Child Support Registrar (Child support) [2019] AATA 1745 (30 April 2019)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2019/SC015806

APPLICANT:  Mr Neville

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                30 April 2019

APPLICATION:

An extension application made on 23 January 2019 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 13 December 2018 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 delay - some 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. On 13 December 2018, a delegate of the Child Support Registrar (the Registrar) advised Mr Neville by letter of a decision to partly allow Mr Neville’s objection to a change of assessment decision made on 16 August 2018.

2. On 23 January 2019 Mr Neville contacted the tribunal regarding a request for a review and lodged his request on 4 February 2019, including an application for an extension of time with the Administrative Appeals Tribunal (the tribunal). In conjunction with his application, Mr Neville provided a written submission as to why he failed to request review of the decision within 28 days of receipt of the decision.

3. The issue to be considered is whether Mr Neville should be granted an extension of time to lodge an application for review of the Registrar’s decision.

CONSIDERATION

1. The law relating to a person’s right to seek review of a decision of the Registrar is contained in section 29 of the Administrative Appeals Tribunal Act1975 (the AAT Act). Subsection 29(2) of the AAT Act requires that a person must lodge a review request with this tribunal within 28 days after a notice of the decision of the Registrar is served on them.

2. Where the period for lodgement has ended, the person may send the application to the tribunal along with a request that the review be treated as if it was duly lodged, that is, that it was lodged within the allowed time (section 91 of the Child Support (Registration and Collection Act 1988 (the Act)). This is commonly referred to as an extension of time request. Section 92 of the Act then provides that the tribunal must consider the application for an extension of time, and grant or refuse that application in writing.

3. In this case, Mr Neville was sent notification on 13 December 2018 of the decision made by the objections officer regarding his objection to the earlier change of assessment decision dated 16 August 2018. Mr Neville lodged an application for review with the tribunal on 4 February 2019. As this request for a review of the decision was not lodged within 28 days with the tribunal, an application for an extension of time must now be considered.

4. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, the High Court, in dealing with an extension of time case and the general concept of time limitation periods, noted that while an extension of time is the exception to the general rule, there are legislative provisions which in the circumstances of the facts of an individual case, may indicate that justice is served by the general rule being overruled.

5. In making its decision, the tribunal has considered the guiding principles for the exercise of a discretion to allow an extension of time as set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (Hunter Valley Developments). In that case the Federal Court said that an extension of time should not be granted unless it was proper to do so, noting that in general, applications or proceedings commenced outside of a prescribed time limit will not be considered. The Court also said that there must be an acceptable explanation for the delay and that it must be fair and equitable in the circumstances to extend time. The Administrative Appeals Tribunal has applied the principles set out in the Hunter Valley Developments case in Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42 (Mulheron). The authorities, Hunter Valley Developments and Mulheron, establish that when considering whether to exercise the discretion to allow an extension of time, a decision-maker should consider and balance a range of factors. The tribunal has taken these factors into account in determining whether the extension of time should be granted in this case.

6. Mr Neville stated that the delay was mainly due to a number of factors: that the decision was made over the Christmas break; and he was having the care of the children every other week during this period. He also was thinking about whether he should seek a review and this was not easily done when he had his four children in his care. He also took some time to make a decision on whether to seek review and sought advice from his accountant late in the period. Mr Neville confirmed that he received the decision and was aware of the time limit to request a review.

10.The tribunal is satisfied that Mr Neville was advised of his right to seek review with the tribunal in accordance with subsection 87(3) of the Act. The tribunal notes that Mr Neville did not contact the Registrar regarding the decision and did advise that he disagreed with the decision until his telephone contact with the tribunal on 23 January 2019, after the time limit had expired. At the time Mr Neville was advised of the requirement to seek an extension of the time to lodge his review application and this request was not received by the tribunal until 4 February 2019. The tribunal has determined that Mr Neville was advised of his rights of review and has not provided an acceptable explanation for the delay, given he was aware of his review rights and was advised, in writing, of these rights to seek review with the tribunal.

11.The tribunal also considered the merits of Mr Neville’s objection to the decision. Mr Neville has stated that he accepts the decision in relation to his income as determined by the Registrar but thinks the other party’s income was not correctly reflected in the decision and the children’s education were not properly considered. While a substantive review of the decision has not been conducted, the tribunal has considered whether there was an arguable case in the circumstances of determining whether to extend the time to lodge an application for review. The issues in dispute have some merit, in that there is an arguable case, but the tribunal is not satisfied that it would be fair and equitable in the circumstances to extend the time to lodge a request for review, in the absence of an acceptable explanation for the delay.

CONCLUSION

12.Mr Neville requested a review out of time. He has not provided an adequate explanation for the delay and while the tribunal is of the view that there is an arguable case in reviewing the decision, it is not fair and equitable to do so. In the circumstances, the tribunal has decided to refuse to grant an extension of time to Mr Neville.