Wickwar and Child Support Registrar (Child support)

[2021] AATA 3694

Wickwar and Child Support Registrar (Child support) [2021] AATA 3694 (11 August 2021)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2021/SC021769

APPLICANT:  Mr Wickwar

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 - 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.

APPLICATION:

An extension application made on 17 June 2021 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 7 May 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

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] especially as the records show Mr Wickwar was notified of the decision electronically on 7 May  2021[4] and the law deems receipt on that day.[5]   Further, the letter accompanying the decision clearly states;

[3] 13 days of out time

[4] Folio 7

[5] Section 9 of the Electronic Transactions Act 1999 provides that if under a law of the Commonwealth a person is required to give information in writing that requirement is taken to have been met if the person gives the information by means of an electronic communication subject to the following requirements: at the time when the information was given, it was reasonable to expect that the information would be readily accessible so as to be usable for subsequent reference; and the person to whom the information is required to be given, consents to the information being given by way of electronic communication. Section 14A of the Electronic Transactions Act states that, for the purposes of a law of the Commonwealth, unless otherwise agreed by the originator and the addressee of an electronic communication the time of receipt of an electronic communication is the time when it becomes capable of being retrieved at an electronic address designated by the addressee. Subsection 14A(2) of the Electronic Transactions Act provides that unless otherwise agreed between the originator and addressee it is to be assumed that the electronic communication is capable of being retrieved by the addressee when it reaches the addressee's electronic address.

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.

In the application for a review to the tribunal Mr Wickwar submits he should be granted an extension of time because he was working remotely and did not have an opportunity to attend to correspondence as he had limited phone and internet service and because he was also working long days.

No evidence was provided to support the above statement.   The tribunal cannot ignore that Mr Wickwar had 28 days in which to lodge an application to the tribunal.   Whilst it fully understands work commitments and internet access may have frustrated an application,   the tribunal cannot justify such factors as being responsible for a 13 day delay. Further, Mr Wickwar has not supplied any evidence to confirm his inability to attend to personal matters outside of working hours or the lack of telco services preventing a timely application.   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[6], 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.   If Mr Wickwar remains dissatisfied with the income applied to the child support formula, it is open for him to seek redress via the change of assessment process via the Child Support Agency.

[6] 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.[7] 

[7] Folio 3 of the papers

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

Senior Member D Benk