Postlewait and Child Support Registrar (Child support)

[2021] AATA 3612

Postlewait and Child Support Registrar (Child support) [2021] AATA 3612 (11 August 2021)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2021/MC021818

APPLICANT:  Mr Postlewait

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:               11 August 2021

CATCHWORDS

CHILD SUPPORT – application for extension of time - no satisfactory explanation for the 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 24 June 2021 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 8 April 2021 despite the 28 day period for applying for review having ended.

EXTENSION OF TIME CRITERIA

Ordinarily, in accordance with paragraph 29(2)(a) of the AAT Act[1], an application for review of a decision must be lodged with the Tribunal within 28 days from the day on which the decision is given to the applicant.  Pursuant to subsection 29(7) of the AAT Act, the Tribunal may extend the time for lodging an application if it ‘is satisfied that it is reasonable in all the circumstances to do so’ [emphasis added]. 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.[2]

[1] Administrative Appeals Tribunal Act 1975 (Cth)

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

HISTORY OF THE APPLICATION

It is necessary to summarise the chronology in this matter;

-On 11 June 2020, the Child Support Agency accepted an application for child support collection from the other parent.  Each parent was duly notified.

-On 22 March 2021, Mr Postlewait requested a review of that decision and as he did not seek a review within 28 days of 11 June 2020, he sought an extension of time.

-On 8 April 2021, the Child Support Agency refused the extension of time application and notified Mr Postlewait that he could seek a review of that decision with the AAT.  The letter accompanying the decision clearly states

If you think this decision is wrong, you can ask the Administrative Appeals Tribunal (AAT) to review it. You must do this within 28 days from the date you receive this letter. You can contact the AAT by going to their website aat.gov.au or calling them on 1800 228 333.

-On 11 June 2021, Mr Postlewait formally notified the tribunal of his intention to seek a review of the decision dated 8 April 2021, that is 36 days out of time.

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 [3]  The tribunal understands that Mr Postlewait has been incarcerated but there is no reason given as to why he did not assign the management of his important affairs to another.      The tribunal appreciates that mail receipt in gaol can be compromised and delayed however, it was open for Mr Postlewait to nominate others to act on his behalf.  The fact that he is in gaol is not a satisfactory explanation for the delay and so the tribunal finds there is no reasonable explanation for the delay that would justify an extension of time.

[3] 36 days of out time

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 review period.

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[4], 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.   Mr Postlewait himself admits in his application to the tribunal that he has had difficulty finding evidence to refute the findings of the Agency and those made contemporaneously by his former partner.

[4] 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.

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. 

In summary, and considering all of the points above, the tribunal is not satisfied that it is reasonable in all of the circumstances to grant the extension of time.

Senior Member D Benk