Smallman and Child Support Registrar (Child support)

[2022] AATA 1567

Smallman and Child Support Registrar (Child support) [2022] AATA 1567 (13 April 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/BC023482

APPLICANT:  Mr Smallman

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member J Longo

DECISION DATE:  13 April 2022

APPLICATION:

An extension application made on 16 March 2022 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 17 December 2021 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS

CHILD SUPPORT – application for extension of time – departure determination - no satisfactory explanation for the lengthy 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 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.

STATEMENT OF REASONS

1.On 17 December 2021, a delegate of the Child Support Registrar (the Registrar) advised Mr Smallman by letter of a decision to disallow his objection to a change of assessment decision made on 14 August 2021.

2.On 16 March 2022 Mr Smallman lodged a request for review, including an application for an extension of time with the Administrative Appeals Tribunal (the Tribunal). Mr Smallman provided a written statement 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 Smallman should be granted an extension of time to lodge an application for review of the Registrar’s decision.

CONSIDERATION

4.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.

5.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, grant or refuse that application and advise the person of the decision in writing.

6.In this case, Mr Smallman was sent a notification on 17 December 2021 advising him of the decision made by the objections officer regarding his objection to the earlier change of assessment decision dated 14 August 2021. Mr Smallman lodged an application for review with the Tribunal on 16 March 2022. As this request for a review of the decision was not lodged with the Tribunal within 28 days, an application for an extension of time must now be considered.

7.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.

8.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 Federal Court identified six factors to take into account when deciding whether to grant an extension of 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.

9.Mr Smallman stated that the delay was caused by border restrictions due to COVID-19, which meant he was unable to access his mail as he works away around Australia. The Tribunal is satisfied that Mr Smallman was advised of his right to seek review with the Tribunal in accordance with subsection 87(3) of the Act. The Tribunal notes that he was notified of the decision on 17 December 2021 but did not apply until 16 March 2022, some three months after the decision was made by the Registrar. No other reason for the delay has been provided. The Tribunal has determined that Mr Smallman 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.

10.The Tribunal also considered the merits of Mr Smallman’s objection to the decision. Mr Smallman has stated that [Ms A’s] income and financial resources were not correctly taken into account and that his income has not been assessed correctly. A substantive review of the decision has not been conducted but rather the Tribunal considered whether there was an arguable case in the circumstances of determining whether to extend the time to lodge an application for review. The application for review has 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

11.Mr Smallman 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 Smallman.