RBBT and Child Support Register (Child support second review)

[2019] AATA 1051

RBBT and Child Support Register (Child support second review) [2019] AATA 1051 (29 May 2019)

Division:GENERAL DIVISION

File Number(s):     2019/0485          

Re:RBBT

APPLICANT

AndChild Support Register

RESPONDENT

DECISION

Tribunal:Member W Frost

Date:29 May 2019

Place:Canberra

The decision of the Social Services & Child Support Division is set aside and remitted for reconsideration pursuant to section 43(1)(c) of the Administrative Appeals Tribunal Act 1975.

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Member W Frost

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.

Catchwords

CHILD SUPPORT – Application for extension of time – Whether or not the Applicant had received the reviewable decision – Application made within the prescribed timeframe - Set aside and remitted to the Social Services & Child Support Division

Legislation

Administrative Appeals Tribunal Act 1975, ss 29 and 43

REASONS FOR DECISION

Member W Frost

29 May 2019

INTRODUCTION

1. This matter concerns an extension of time application made by the Applicant and whether or not the Applicant had received the reviewable decision from the Respondent, the Child Support Register, on the date it was made or at a later date.

2. The timing of the Applicant’s receipt of the decision was critical to the resolution of the matter before the Tribunal and its determination of whether the application to review the Respondent’s decision was made within the prescribed time under the Administrative Appeals Tribunal Act 1975 (‘AAT Act’).

   BACKGROUND

3. On 6 December 2018, the Social Services & Child Support Division of the Tribunal refused the Applicant’s extension of time request to apply for the review of the Respondent’s objection decision made on 14 June 2018. The Respondent’s decision disallowed the Applicant’s objection to an increase in the Applicant’s annual rate of child support by $7,385 for the period 1 January 2018 to 31 December 2018 and by $7,606 for the period 1 January 2019 to 31 December 2019.

4. In December 2018, the Applicant lodged with the General Division of the Tribunal an application for review of the decision by the Social Services & Child Support Division.

   ISSUE

5. The issue before the Tribunal was whether to grant the Applicant an extension of time under s 29(7) of the AAT Act to review the Respondent’s decision regarding the payment of child support.

   LEGISLATION

6. Section 29 of the AAT Act sets out the manner in which an application for review is made with the Tribunal. Subsection 29(1)(d) specifies that an application must be made ‘within the prescribed time’. Subsection 29(2) relevantly provides that the prescribed time is ‘the period commencing on the day on which the decision is made and ending on the twenty-eighth day after…the day on which a document setting out the terms of the decision is given to the applicant’.

7. Subsection 29(8) of the AAT Act allows an applicant to seek from the Tribunal an extension of time for a review of a decision in circumstances where that time has expired. Subsection 29(7) of the AAT Act provides the Tribunal with a wide discretion to extend the time for a person to lodge an application, but it has to be satisfied that an extension is reasonable in all the circumstances.

   BACKGROUND AND CONSIDERATION

8. The Social Services & Child Support Division rejected the Applicant’s extension of time application on 6 December 2018. The Statement of Reasons noted that:

   (a)the matter was determined on the papers and the Social Services & Child Support Division had before it, and considered, material provided by the Department of Human Services and the Applicant;

   (b)the Applicant contended that the Respondent’s decision of 14 June 2018 was received ‘approximately one week after the date of that letter’;

   (c)because the Respondent’s reviewable decision had been given to the Applicant ‘by electronic notification on 14 June 2018 as recorded in the Department’s records’, the Applicant was ‘taken to have received a copy of the decision on 14 June 2018, and therefore needed to have lodged an application for review of that decision by 12 July 2018’.

9. The Applicant made an application for review of the Respondent’s decision and lodged it with the Tribunal on 13 July 2018, not 12 July 2018. That is, if the Applicant had received the Respondent’s decision on the date it was made, being 14 June 2018, the application for review would have been made one day after the prescribed 28 day period under section 29 of the AAT Act. This is the determination the Social Services & Child Support Division made, which was reasonable in the circumstances, based on the information then available from the Respondent.

10. However, after the decision by the Social Services & Child Support Division and following the Applicant’s request for an extension of time made with the General Division, on 9 May 2019, the Respondent advised the Tribunal and the Applicant that it did not oppose the Applicant’s request for an extension of time to bring the application for review because such an extension was not required in circumstances where the application was made within the prescribed timeframe under the Act. The reason for this changed position from the Respondent was that it could not establish whether the Applicant had received the Respondent’s 14 June 2018 decision on that date (as determined by the Social Services & Child Support Division on the evidence then before it), or any earlier than 19 June 2018, being the date on which the Applicant contends it was received.

11. In an email to the Tribunal and the Applicant on 9 May 2019, the Respondent stated that it:

    has not been able to confirm that the decision was in fact received by the Applicant electronically on 14 June 2018. If not received electronically, the decision would have been sent / received by post. There does not appear to be any basis to dispute the Applicant’s statement that the decision was received…on 19 June 2018.

    The Respondent is of the view that the date by which the Applicant was required to lodge an application for review was 17 July 2018. Noting the application was received by the AAT1 on 13 July 2018, the application was made within the stipulated timeframe and an extension of time is not required. 

12. The Respondent accepts the Applicant made the request for review in time. The Tribunal therefore had to determine how to handle the Applicant’s extension of time application in light of the information from the Respondent that meant no such extension was required.

    CONCLUSION

13. On the evidence now before the Tribunal, in circumstances where the Applicant lodged the application for review of the Respondent’s decision with the Social Services & Child Support Division on 13 July 2018, following its receipt by the Applicant on or around 19 June 2018, the application was made within the prescribed 28 day timeframe under section 29 of the Act. Accordingly, the Applicant does not require an extension of time for review of the Respondent’s decision by the Tribunal.

14. The Tribunal notes, for completeness, that no other party whose interest may be affected by the Respondent’s decision applied to be made a party to the application before the Tribunal pursuant to section 30(1A) of the Act. In any event, given the evidence now before the Tribunal about the timing of the application, there would have been little merit in another party being joined to the proceeding before the General Division of the Tribunal.

15. Based on the above considerations, pursuant to section 43(1)(c) of the Act, the decision under review is set aside and the matter is remitted to the Social Services & Child Support Division of the Tribunal for reconsideration with the direction that no extension of time is required by the Applicant in order for that Division to proceed to hear the Applicant’s substantive application.

I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

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Associate

Dated: 29 May 2019