Tripeony and Child Support Registrar (Child support) - [2025] ARTA 1110

Tripeony and Child Support Registrar (Child support) [2025] ARTA 1110 (25 March 2025)

Applicant:Mr Tripeony
Respondent:  Child Support Registrar
Tribunal Number:   2025/SC029197
Tribunal:General Member P Jensen
Place:Brisbane
Date of Decision:  25 March 2025
Decision:

Mr Tripeony’s application for an extension of time in which to apply for review of an objections officer’s decision dated 19 November 2024 to not make a determination under subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 is refused.

CATCHWORDS

CHILD SUPPORT – application for extension of time – departure determination – explanation for the lengthy delay – rested on his rights – 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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.

Statement of Reasons

Mr Tripeony and Ms [A] are the parents of [the children]. On 19 March 2022, Mr Tripeony informed Services Australia – Child Support (“Child Support”) that there had been a change in the parents’ care of [Child A]. Mr Tripeony had been recorded as providing 10% care for [Child A] for many months. Mr Tripeony informed Child Support that he had been providing 83% care for [Child A] since 22 January 2022.
On 16 July 2022, Child Support decided to not record a change in the parents’ care of [Child A]. According to Child Support’s records, it notified Mr Tripeony of the care decision via a letter dated 16 July 2022.
On 13 May 2024, Mr Tripeony objected to the care decision. On 19 November 2024 an objections officer made two decisions:

The objections officer decided to record Mr Tripeony as providing 86% care and Ms [A] as providing 14% care for [Child A] from 22 January 2022.
The objections officer decided to not make a determination pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 (“the Registration Act”), which meant that the objections officer’s care decision had effect for child support purposes from when Mr Tripeony lodged his objection, which was 13 May 2024.

Child Support notified Mr Tripeony of the objections officer’s two decisions via a letter dated 3 December 2024. In respect of each decision, Mr Tripeony had a right to apply to the Tribunal for review. If Mr Tripeony wished to apply for review of the decision to not make a determination pursuant to subsection 87AA(2), he needed to lodge his application within 28 days of being notified of the decision: section 18 of the Administrative Review Tribunal Act 2024 (“the ART Act”). Mr Tripeony said he received the letter dated 3 December 2024 on 12 December 2024. He did not apply for review until 20 January 2025. He did not apply for review within time. He subsequently applied for an extension of time in which to apply for review: section 19 of the ART Act. I considered whether to conduct a hearing and concluded that the matter could be properly decided without a hearing: section 2.6 of the Administrative Review Tribunal (Child Support) Practice Direction 2024.
The principles to be applied when deciding an extension of time application were summarised in Phillips v Australian Girls’ Choir and Another [2001] FMCA 109:
1.There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The "prescribed period" of 28 days is not to be ignored …
2.It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained … It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition …
3.…It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. …
4.Any prejudice to the respondent … is a material factor [which goes] against the grant of an extension.
5.The mere absence of prejudice is not enough to justify the grant of an extension. …
6.The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. …
7.Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion …
It is convenient to firstly make a preliminary assessment of the merits of Mr Tripeony’s substantive application for review of the decision to not make a determination pursuant to subsection 87AA(2) of the Registration Act. Section 87AA relevantly provides that, as a general rule, if a person objects to a care decision more than 28 days after they were notified of the decision and an objections officer changes the decision, the change has effect from when the person lodged their objection. Subsection 87AA(2) provides that the 28-day period can be extended if “there are special circumstances that prevented the person from lodging the objection” within the 28-day period.
When Mr Tripeony lodged his objection on 13 May 2024, Child Support noted:
[Mr Tripeony] said he never received the decision letter [dated 16 July 2022] and thought we had ignored his request for a change in care for [Child A] lodged in March 2022.
A statement that a notice was not received is easily made. If the statement is correct, it is difficult to prove, and if it is incorrect, it is difficult to disprove. Subparagraph 31(1) of the Child Support (Registration and Collection) Regulations 2018 relevantly provides that a notice may be served on a person “by sending it by prepaid post to the person’s address for service”. The evidence suggests that Child Support’s letter notifying Mr Tripeony of the care decision was sent by prepaid post to Mr Tripeony’s address for service. Subregulation 31(2) of the same Regulations states:
If service has been attempted by use of prepaid post, then, unless the contrary is proved, service will be taken to have been effected at the time when the notice or other communication would, in the ordinary course of the post, have arrived at the place to which it was addressed.
In his application to the Tribunal for an extension of time in which to apply for review, Mr Tripeony stated that the “letter of 16 July 2022 did not constitute a valid care percentage decision”. It is not clear what he meant by that statement. It may be that he was submitting that the letter did not constitute a valid notice of the decision. The letter stated that Child Support had received information about the care arrangements for [Child A] and it had “decided that the new information does not require a change in your child support assessment”. It also informed Mr Tripeony that he could “ask us to review the decision (we call this an objection) within 28 days from the date you receive this letter.” On a preliminary assessment of evidence, the submission that the letter was not a valid notice of the care decision would appear to have poor prospects of success.
Mr Tripeony submitted that the letter “constituted a denial of procedural fairness”. It is not clear how the letter could constitute a denial of procedural fairness.
Mr Tripeony stated that he did not receive the notice. He did not provide any documentary evidence in support of that statement, such as evidence of some systemic problem with the postal service in his area. It would be unremarkable if a decision-maker concluded that Mr Tripeony had not “proved” that he did not receive the notice in the ordinary course of the post and there were not special circumstances that prevented him from objecting within the 28-day period.
On 7 November 2022, Mr Tripeony once again reported a change in care from 22 January 2022, although he stated that he had been providing 59% care since that date. He reported the information via an online service. Child Support noted that it had already made a decision in respect of Mr Tripeony’s claim that there had been a change in care from 22 January 2022. On 3 January 2023 it phoned him to discuss the issue. The call went to voicemail and Child Support left a message asking Mr Tripeony to return its call. It appears that he did not do so. His omission, and the consequential delay, is a relevant consideration in the current extension of time application.
Fourteen months later, on 11 March 2024, Mr Tripeony once again reported a change in care from 22 January 2022, which ultimately led to him lodging his objection to the original care decision on 13 May 2024.
On a preliminary assessment of the evidence, even if a decision-maker concluded that there had been special circumstances that had prevented Mr Tripeony from objecting within the 28-day period, there are reasons why that decision-maker might extend to the 28-day period to, say, early 2023, but not May 2024. Mr Tripeony’s substantive application for review appears to have poor prospects of success.
Turning to Mr Tripeony’s delay in applying to the Tribunal for further review, Mr Tripeony wrote:
Given the amount of litigation between my ex-wife and I over the years I did not want to waste further time, energy and resources challenging the decisions. However, that changed once the ex-wife decided to file an Application for Review which means it is now convenient and desirable for me to do so as such time, energy and resources will have to be expended anyway.
Ms [A] has applied for review of the objections officer’s care decision. She has not applied for review of the decision to not make a determination pursuant to subsection 87AA(2). If Mr Tripeony’s extension of time application were granted, there would be some overlap in the “time, energy and resources” that would be expended in the course of reviewing the objections officer’s two decisions, but the relevant facts and the applicable law would be different for each case. It is not correct to say that “such time, energy and resources will have to be expended anyway.”
It is clear that Mr Tripeony initially decided to “rest on his rights” and not seeking review of the objections officer’s second decision.
Viewing those circumstances as a whole, I am not persuaded that it would be reasonable in all the circumstances to grant Mr Tripeony’s extension of time application. The application is refused.

DECISION