Gowland and Child Support Registrar (Child support)

[2021] AATA 3188

Gowland and Child Support Registrar (Child support) [2021] AATA 3188 (2 August 2021)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2021/MC021694

APPLICANT:  Mr Gowland

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                02 August 2021

APPLICATION:

An extension application made on 7 June 2021 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 10 November 2020 despite the 28 day period for applying for review having ended.

CATCHWORDS

CHILD SUPPORT – application for extension of time - no satisfactory explanation for the delay - no 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.

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

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 Gowland was notified of the decision electronically on 10 November [3] and the law deems receipt on that day.[4]   Further, the letter accompanying the decision clearly states;

[2]181 days out of time

[3] Folio 9

[4] 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 his application for a review to the tribunal Mr Gowland  asks for an extension of time because

I HAD ALREADY ASKED CENTRELINK & SERVICES AUSTRALIA TO REVIEW THEIR DECISION MADE SEVERAL TIMES TO REVISE THEIR PERCENTAGE OF CARE DECISION AS THEY HAD NOT RECORDED THE CARE FROM THE APPROPRIATE TIME FRAME INDICATIVE OF THE FATHER’S PERIOD OF CARE.

FURTHER TO THIS, DESPITE THE FACT (AS PER THE LEGISLATION) THAT PERCENTAGE OF CARE DECISIONS MADE BE MADE VIA THE TELEPHONE, CENTRELINK AND SERVICES AUSTRALIA WERE RELUCTANT TO EVEN RECORD A PERCENTAGE OF CARE FOR THE FATHER IN THE FIRST PLACE (AFTER IT WAS INITIALLY CHANGED FROM 35% TO 0%) CITING THAT IT WOULD HAVE NO BEARING ON ANYTHING AT ALL REGARDING PAYMENTS. IT HAD ALREADY BEEN CLEARLY NOTED BY THE FATHER INITIALLY IN THE FATHER’S REQUEST APPLICATION FOR A PERCENTAGE OF CARE TO BE RECORDED.

N.B. BASED ON THE PLETHORA OF DOCUMENTS (EVIDENCE) THAT WERE
SUPPLIED BYTHE FATHER TO CENTRELINK AND SERVICES AUSTRALIA (THAT THEY ARE IN RECEIPT OF) A 0% CARE PERCENTAGE FOR THE FATHER FROM
FEBRUARY 2020 TO OCTOBER 2020 SHOULD NEVER HAVE BEEN RECORDED
IN THE FIRST PLACE.

THE REASON THAT I AM NOW SENDING THIS REVIEW OF PERCENTAGE CARE
REQUEST IS BECAUSE I HAVE NOW BEEN FINANCIALLY IMPACTED AS
RESULT OF THE PROFESSIONAL INCOMPETENCE OF CENTRELINK AND

SERVICES AUSTRALIA BY NOW FOLLOWING UP ON MY REQUEST.

The tribunal reviewed the extensive documentation attached which identifies longstanding grievances regarding care percentages. The tribunal fully understands that navigating the child support system can be difficult, however, also cannot ignore that the information about further review rights to the Administrative Appeals Tribunal was made plain to Mr Gowland in the decision statement and accompanying documentation forwarded to him on 10 November 2020.  In the absence of any cogent reason for not being able to follow the above instruction to approach the AAT, (such as verifiable medical/cognitive incapacity), 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 particularly after such a prolonged period of time.

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, (care percentage decision) has been sufficiently grounded in material reasonably capable of supporting it.

[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.

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.[6] 

[6] Folio 2

Senior Member D Benk