Rosena and Child Support Registrar (Child support)

[2021] AATA 2914

Rosena and Child Support Registrar (Child support) [2021] AATA 2914 (13 July 2021)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2021/HC021744

APPLICANT:  Mr Rosena

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                13 July 2021

APPLICATION:

An extension application made on 12 June 2021 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 2 March 2021 despite the 90 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

CATCHWORDS

CHILD SUPPORT – application for extension of time – no satisfactory reason for the delay – little merit – 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.

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 Rosena was notified of the decision electronically on 2 March 2021[3].

[2]13 days out of time

[3] Folio 13

In seeking an extension, Mr Rosena submitted;

I cannot apologise enough for the delay in replying. The letters from the CSA always arrive far later than the date on the letters, and this has been exacerbated during Covid. This does not excuse my late reply, which was due to my being overwhelmed at the moment with financial distress, largely caused by this unfair decision. In addition, another of my 4 children under the care of my ex-wife has now moved out of her house, and stopped talking to her and this has caused me additional stress and tension as it is extremely hard to deal with this sort of  emotional turmoil over the phone. Previously I was able to travel to [City 1] to see my kids regularly, but due to Covid I have only been able to come to Australia once since February 2019. I am sure you can imagine how harrowing this is, especially when combined with the stress which this excessive financial claim is causing. I will be attending counselling next
week for the stress that this claim has caused me over recent months. If you can see your way to granting a small time extension, I give you my word to reply with urgency from now on.

The above is acknowledged and understood.  However, the letter [4] (sent electronically) enclosing the decision clearly states;

[4] 2 March 2021 – folio 9

If you think this decision is wrong, you can ask the Administrative Appeals Tribunal (AAT) to
review it. You must do this within 90 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.

No cogent reason was submitted to the tribunal for not following these instructions.  Stress associated with the decision of the Child Support Agency and the actions of the other parent are common in most child support disputes but alone are not sufficient grounds to extend time for review before the tribunal.  There is no medical evidence confirming incapacity to meet timeframes and in the absence of any other circumstances, the tribunal finds there is no reasonable explanation for the delay that would justify an extension of 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[5], however, on review of the evidence before it, is satisfied the decision, subject of the extension application, (acceptance of an application to collect child support) has been sufficiently grounded in material reasonably capable of supporting it and has been made according to law.[6] Given this, the application would have limited prospects of success at any hearing[7]. Mr Rosena has expressed concern that the monies paid have not been distributed for the benefit of the children.  The Child Support Agency has no power to direct parents on how monies are to be spent for the needs of a child/ren.   Any concerns regarding the current agreement/arrangement with regards to payment of child support can only be corrected by a variation of the existing Court Orders, something that is beyond the scope of an application for collection of child support to the Agency or tribunal review.   

[5] 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.

[6]Section 39(4) and 39 (5) of the Child Support (Registration and Collection) Act 1988

[7] Smith and Commissioner of Patents [2012] AATA 60 at [29-31])

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.[8] 

[8] Folio 9