Barker and McCouch (Child support)

[2023] AATA 4008

Barker and McCouch (Child support) [2023] AATA 4008 (17 October 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/SC026430

APPLICANT:  Ms Barker

OTHER PARTIES:  Child Support Registrar

Mr McCouch

TRIBUNAL:Senior Member K Dordevic

DECISION DATE:  17 October 2023

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the child support assessment for [Child 1] and [Child 2] is extended beyond their 18th birthday until 19 December 2023.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – application to extend the child support assessment beyond the children’s eighteenth birthday – whether the children were in full-time secondary education on their eighteenth birthday – application should be accepted – decision under review set aside and substituted

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.

REASONS FOR DECISION

BACKGROUND

1. Ms Barker and Mr McCouch are the parents of five children. This application is in respect of their twin daughters (the twins) born on 9 February 2005. A child support assessment has been registered with Services Australia – Child Support (Child Support) since 25 May 2006.

2. On 9 March 2023 the mother applied to Child Support to have the child support assessment in respect of the twins extended from their 18^th birthday until the conclusion of the 2023 academic year. The application was refused on the same day. The mother objected to the decision in a timely manner and her objection was disallowed on 27 June 2023.

3. The mother applied for review of that decision to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) on 18 July 2023.

4. The hearing took place on 17 October 2023. The mother appeared by MS Teams audio. The father had advised the Tribunal on 12 October 2023 that he did not want a copy of any relevant documents forwarded to him (“send me nothing, I don’t care”), that he just wanted to be “left alone” and he was unsure if he would attend the hearing. On the day of the hearing the Tribunal attempted to contact the father on three occasions over a 15-minute period. Each time the call went unanswered. The Tribunal was satisfied that the father was given adequate notice of the hearing and had elected not to attend and so proceeded in his absence. The Registrar also elected to participate in the hearing. Child Support provided the Tribunal and the parties with documents (folios 1 to 93) relevant to the decision.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).

2. The issue which arises in this case is whether the mother’s application to extend the child support assessment beyond the twins’ 18^th birthday was correctly refused by Child Support.

CONSIDERATION

1. Section 151B of the Act allows a carer to apply for a child support assessment to be continued after a child’s 18^th birthday and until the last day of the secondary school year in which the child turned 18 years of age.

2. Subsection 151C(2) of the Act provides that the Registrar must accept the application if, and only if, satisfied that (as summarised by the Tribunal):

   (a)the child has turned 17;

   (b)an administrative assessment is in force, or is likely to be in force, on the day before the child’s 18^th birthday;

   (c)the child is likely to be in full-time secondary education on their 18^th birthday;

   (d)the child’s 18^th birthday will occur before the last day of the secondary school year; and

   (e)the application is made before the child’s 18^th birthday, or there are exceptional circumstances justifying the making of the application after the child’s 18^th birthday.

3. The Tribunal finds that the twins had turned 17, there was an administrative assessment in place before their 18^th birthday, they were in full-time secondary education on their 18^th birthday[1] and their 18^th birthday was before the last day of the secondary school year. Thus, paragraphs 151C(2)(a) to (d) of the Act are satisfied.

   [1] Based on a proof of enrolment letter provided by Mr [A], Principal, [a named] High School which states that the twins were enrolled from 6 February 2023 (at folios 54 to 55)

4. Paragraph 151C(2)(e) of the Act specifically states that either an application is to be made before a child's 18th birthday or there are, in the Registrar’s opinion (or the Tribunal stating in their place) exceptional circumstances justifying the making of the application after the child’s 18th birthday. In this case the Tribunal finds that the mother lodged the application to extend the administrative assessment one month after their 18^th birthday, being 9 March 2023.

5. The mother contends that there were exceptional circumstances justifying her delay. Her evidence can be summarised as follows. She never received the letter advising her to lodge the application before the twins’ 18th birthday, which was uploaded to myGov on 25 November 2022.[2] She also did not receive any SMS to advise her that she had received an email. She was only prompted to lodge the application when she was advised by Centrelink that her family tax benefit had been reduced. After lodging the extension application it was explained to her that her myGov mailbox was full and she was locked out of her account. She went on to explain that because the twins were in Year 11, she had not turned her mind to the fact that the administrative assessment needed to be extended; in her mind that was only necessary if a child was in Year 12. In any event, Centrelink was aware that the twins were in secondary school, as they were placed in temporary care sometime in the 2022 calendar year and they only returned to her care in about December 2022.

   [2] At folios 34 to 35

6. The mother explained that some three or four years ago all eight of her children were removed from her care, largely because of issues of neglect and exposure to illicit drug usage and domestic violence. Her three younger children have never been returned and now live on a full-time basis with their father. After undergoing a restoration period, the older five children were returned to her care sometime in early 2022. Soon after, the twins elected to return to care with child protection services. She explained that the combination of her poor physical health condition and her mental health conditions meant that, prior to them electing to return to protective care she essentially left the children “to fend for themselves” as she “did not give a stuff” as she was in a period of acute distress as she did not have care of her younger children. She would usually leave the children at home unsupervised. The twins reported being bullied by their older brother and so, without the mother’s protection, elected to return back to protective care.

7. The mother stated that what followed was a period of crisis. She “took off” with the three older children, leaving New South Wales and living in Queensland in her caravan, which she parked at unoccupied showgrounds. She states that they lived like that for about five to nine months (she thinks she left in August 2022 and returned in May 2023). She recalls the twins returning to her care in about December 2022 and them then returning to [a city] just before 6 February 2023 to begin school.  She said that this was a very difficult period for the children: “I was a mess”, “not in the right headspace”, “overwhelmed” and “could not give a [expletive]”. As a result the “kids did suffer”. She could only afford to feed the children sausages and two-minute noodles during this time as she was not in receipt of any Centrelink payments for the children.

8. The mother is diagnosed with [various medical conditions]. She was granted disability support pension in respect of [her condition]. The condition causes severe fatigue and the Tribunal accepts that the mother had another medical condition from about December 2022 to August 2023 that also significantly contributed to her exhaustion. She reports low motivation and being socially isolated. She states that she is in significant debt to the younger children’s father and with her utility providers.

9. The legislation does not prescribe what amounts to “exceptional circumstances”. The Child Support Guide, at section 2.5.5, provides the following guidance for the purposes of subparagraph 151C(2)(e)(ii) of the Act:

   Consideration of late applications

   The Registrar can accept an application made after the child's 18th birthday if, in the Registrar's opinion, there are exceptional circumstances justifying the making of the application after the child's 18th birthday (CSA Act section 151C(2)(e)(ii)). The following are examples of circumstances that the Registrar may consider 'exceptional' in deciding whether to accept a late application. This is not an exhaustive list and each case must be considered on its own merits.

   ·Serious health problems delayed lodgement (written confirmation from a health practitioner will be required).

   ·An application for an assessment has been made but not accepted before the child turns 18, and it was unclear whether the child would be in secondary full-time education.

   ·The carer was under pressure not to apply (evidence from a person fully aware of the nature and details of the circumstances, for example, a social worker or police officer, will be required).

   ·Severe distress or hardship (for example, caused by a disaster such as fire or flood) delayed lodgement.

   ·Communication difficulties led to an inability to access information (a result of geographical location, cultural issues, literacy, language difficulties, etc.).

   The exceptional circumstances must relate to the reasons that justify the making of the application after the child's 18th birthday and not to the consequences to the individual of making a late application.

10. The Tribunal is satisfied that there is corroborating evidence in the Child Support documents which indicates that the mother was unable to access her myGov account from at least March to 24 May 2023[3] and she did not access the letter dated 25 November 2022 reminding her to apply to extend the administrative assessment before the twins’ 18th birthday.[4] In any event, given the mother’s description of the state of her physical and mental health during the period November 2022 to March 2023, largely consistent with her presentation at hearing, leads the Tribunal to conclude that it would have been unlikely that she would have had the capacity to lodge the application even if she had received this notification.

    [3] At folios 48 and 57

    [4] As confirmed by Child Support where it was noted that the letter was showing as unread as at 9 March 2023 (at folio 39)

11. The Tribunal accepts the mother’s testimony that at least from November 2022 until March 2023 was a period of extreme crisis for her and her five children. During the same period she described an itinerant lifestyle where she and the five children lived in a caravan without any nearby amenities, unable to meet the children’s physical and emotional needs, including the provision of appropriate housing and nutritious food. The Tribunal also accepts that the mother’s health conditions, including diagnosis of [a medical condition] and mental health conditions, also contributed to her delay in lodging the extension application. There is also the longstanding involvement with child protection services, including the removal of all children from her care for a period, her estrangement from her three younger children and the twins electing to return to protective care given their experience of physical and emotional violence perpetrated by their older brother.

12. Considering the concurrence of all these factors the Tribunal is satisfied that the mother’s circumstances meet the description of exceptional circumstances and justified the application being lodged one month after the twins’ 18th birthday. In the Tribunal’s view the discretion is properly exercised in the mother’s favour and the application to extend the administrative assessment should be accepted and extended until the last day of the twins’ Year 11 studies, being 19 December 2023.[5]

    [5] Based on the NSW Department of Education 2023 Calendar at folio 68

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the child support assessment for [Child 1] and [Child 2] is extended beyond their 18th birthday until 19 December 2023.