Tonra and Child Support Registrar (Child support)

[2021] AATA 5188

Tonra and Child Support Registrar (Child support) [2021] AATA 5188 (22 November 2021)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2021/BC022453

APPLICANT:  Mr Tonra

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:               22 November 2021

APPLICATION:

An extension application made on 1 October 2021 asking the AAT to consider the application for AAT first review of a decision of the Child Support Registrar on 22 November 2019 despite the 28 day period for applying for review having ended.

EXTENSION OF TIME CRITERIA

In its assessment of an extension of time application/s, 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 explanation for the lengthy delay – no merit – prejudice to the other parent due to long delay - extension of time refused

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed 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 Tonra was notified of the decision via letter dated 22 November 2019.[3]  Careful review of the file confirms that the letter was properly addressed and so the law deems receipt.[4] 

[2] 651 days out of time or 93 weeks

[3] As annexed

[4]  section 31 of the Child Support (Registration and Collection) Regulations 2018. Subsection 31(2) of the Regulations provides that “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.”

The letter attaching the decision stated;

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.

The concluding paragraphs of the change of assessment decision further reinforce review rights via the AAT.

No real reason has been advanced for the delay except that Mr Tonra now claims he has accurate information about his adjusted taxable income for the period in question.  The tribunal finds there is no cogent reason for not following the directions in the decision statement regarding further review, particularly given that at all times, Mr Tonra remained dissatisfied with the income applied by the Agency.  The tribunal acknowledges navigating Child Support Agency requirements/processes can be confronting and confusing, nonetheless considers the instructions above are clear and so finds there is no reasonable explanation for the delay that would justify an extension of time, particularly where the request is made 651 days out 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, (change of assessment) has been sufficiently grounded in material reasonably capable of supporting it.     If circumstances have changed, or alternatively if Mr Tonra has further information that he thinks may impact his current assessment, it is open for him to approach the Agency with a further departure (change of assessment) application, although he must be mindful that there are limited backdating provisions.

[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 10

[Annexure redacted - Internal record showing Mr Tonra was advised of outcome of objection via letter on 22 November 2019]