Blong and Secretary, Department of Social Services (Social services second review)

Blong and Secretary, Department of Social Services (Social services second review) [2017] AATA 1360 (25 August 2017)
Division:GENERAL DIVISION
File Number: 2016/6218
Re:Martina Blong
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:25 August 2017
Place:Brisbane

The Tribunal affirms the decision under review.
........................[Sgd]................................................
Member D K Grigg
CATCHWORDS
FAMILY ASSISTANCE – family tax benefit – overpayment – where no administrative error – where no special circumstances – decision under review affirmed
LEGISLATION
A New Tax System (Family Assistance) Act 1999
A New Tax System (Family Assistance) (Administration) Act 1999
Child Support (Assessment) Act 1989 (Cth)

CASES

Beadle and Director-General of Social Security (1984) 6 ALD 1
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Gammaldi and Secretary, Department of Social Services [2016] AATA 1028
Groth and Secretary Department of Social Security (1995) FCA 1708
Riddell v Secretary, Department of Social Security [1993] FCA 261; (1993) 42 FCR 443
Secretary, Department of Social Security v Hales [1997] FCA 1565; (1998) 82 FCR 154
Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs v Jones (2012) 89 ATR 267; [2012] FCA 639
Secretary, Department of Family & Community Services v Sekhon [2003] FCA 76
Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190
SECONDARY MATERIALS
Guide to Social Security Law, the Family Assistance Guide (2017, Cth)
REASONS FOR DECISION
Member D K Grigg
25 August 2017
INTRODUCTION & CLAIM HISTORY

Ms Blong has one child with her separated partner Mr Craig Walker.[1] In 2012 Ms Blong registered for a child support assessment and elected to collect the assessed child support amount privately and directly from Mr Walker.[2]
[1] Exhibit 1, T Documents, T 11, page 118, Centrelink records.
[2] Exhibit 2, Secretary’s Statement of Facts Issues and Contentions, Attachment A, pages 9 – 10.
The amount of child support assessment was used by the Department of Human Services (Centrelink) to calculate Ms Blong’s family tax benefit (FTB) payments between 2013 and 2016.[3] The amount of child support payable is calculated based on each parents’ adjusted taxable income.
[3] Exhibit 1, T Documents, T 14, pages 237 – 298, Letters from Centrelink with regard to Child support
assessments.
In July 2014 Centrelink determined that, based on the annual family income (including Ms Blong’s annualised child-support income of $1,605.16) for the year ended 30 June 2014, that Centrelink owed Ms Blong $1087.45 by way of FTB supplements.[4]
[4] Exhibit 1, T Documents, T 13, pages 211 – 212, Letter from Centrelink to Ms Blong dated 22 July 2014; T9, page
90, Decision of the Authorised Review Officer of the dated 17 August 2016.
In July 2015 Centrelink reconciled Ms Blong’s FTB payments based on the annual family income (including Ms Blong’s annualised child-support income of $3,595.39) for the year ended 30 June 2015.[5]
[5] Exhibit 1, T Documents, T9, page 90, Decision of the Authorised Review Officer dated 17 August 2016
On 23 May 2016 the Child Support Registrar was provided with updated income information for Mr Walker for the financial years ending 30 June 2013, 30 June 2014 and 30 June 2015 and as a result was required to amend the associated child-support assessments for those few periods. This resulted in increasing the child support payable by Mr Walker for the period 1 September 2013 to 31 December 2016.[6]
[6] Exhibit 1, T Documents, T 14, pages 276 – 285, Letters from Centrelink in relation to child support assessments.
On 28 May 2016, the Child Support Agency advised Ms Blong that there was to be a retrospective increase in her child support payments for the year ended 30 June 2014. As a result, the FTB for the 2013/14 financial year was reconciled to take into account the updated child-support income assessment of $13,414.69.[7] Based on Ms Blong’s actual circumstances for the year ended 30 June 2014 Ms Blong was only entitled to $6,599.06 for FTB but had, in fact, received $12,505.26. As a result, Centrelink determined that Ms Blong had been overpaid FTB for the 2013/14 year in the amount of $5,905.70.[8]
[7] Exhibit 1, T Documents, T9, p.90, Decision of the Authorised Review Officer dated 17 August 2016
[8] Exhibit 1, T Documents, T 7, pages 80 – 83, Letter from DHS to Ms Blong re-Account Payable Family Tax Benefit
2013 – 2014 dated 28 May 2016.
On 28 May 2016, the Child Support Agency also advised Ms Blong that there was to be a retrospective increase in her child support payments for the year ended 30 June 2015. As a result, the FTB for the 2014/15 financial year was reconciled to take into account the updated child-support income assessment of $13,757.89.[9] Based on Ms Blong’s actual circumstances for the year ended 30 June 2015 Ms Blong was only entitled to $6588.25 for FTB but had, in fact, received $11,688.63. As a result, Centrelink determined that Ms Blong had been overpaid FTB for the 2014/15 financial year in the amount of $5100.38.
[9] Exhibit 1, T Documents, T9, p.90, Decision of the Authorised Review Officer dated 17 August 2016.
As a result of the Centrelink’s determinations that Ms Blong had been overpaid, the following debts were raised:
(a)$5,905.70 of FTB for the year ended 30 June 2014 (2014 FTB Debt);[10] and
(b)$5,100.38 of FTB for the year ended 30 June 2015 (2015 FTB Debt).[11]
[10] Exhibit 1, T Documents, T 7, pages 80 – 83, Letter from DHS to Ms Blong re-Account Payable Family Tax Benefit
2013 – 2014 dated 28 May 2016.
[11] Exhibit 1, T Documents, T 8, pages 84 – 87, Letter from Centrelink to Ms Blong Account Payable Family Tax
Benefit 2014 – 15 dated 28 May 2016.
On 1 June 2016 Ms Blong agreed to $15 per fortnight being deducted from her ongoing FTB payments to repay the 2014 FTB debt and 2015 FTB debt.[12]
[12] Exhibit 1, T Documents, T 12, page 183, Centrelink records.
Ms Blong then sought a review of Centrelink’s original decision by an Authorised Review Officer (“ARO”). Ms Blong argued that it was unfair to raise a debt against her for a change in the child-support assessment for the last two years when she had been telling the Child Support Agency how much Mr Walker had been earning. Ms Blong also told the ARO that:[13]
(a)she had not been paid all the child-support she was owed from Mr Walker;
(b)Mr Walker had not lodged his income tax returns and she was aware that Mr Walker had not provided an accurate estimate of his income to the Child Support Agency;
(c)in August 2016 Mr Walker was not currently paying any child-support despite the assessment amount being $1537.83 a month;
(d)she had informed Mr Walker of the retrospective assessment and the 2014 FTB Debt and 2015 FTB debt; and
(e)she had not yet taken any legal steps to obtain the outstanding child-support from Mr Walker.
[13] Exhibit 1, T Documents, T9, pages 88 – 95, Decision of the Authorised Review Officer dated 17 August 2016.
The appeal to the ARO was unsuccessful. On 17 August 2016, the ARO found that there were no grounds to write-off or waive the recovery of all or part of the debt and that no “special circumstances” existed to waive the debts.[14]
[14] Exhibit 1, T Documents, T9, pages 88 – 95, Decision of the Authorised Review Officer dated 17 August 2016.
Ms Blong lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal. The SSCSD rejected Ms Blong’s claim and affirmed the ARO’s decision on 2 November 2016.[15]
[15] Exhibit 1, T Documents, T2, pages 7–13, SSCSD’s Decision and Reasons for Decision dated to November 2016.
Ms Blong has sought a review of the SSCSD’s decision by this Tribunal.[16]
[16] Exhibit 1, T Documents, T1, pages 1- 6, Application for Review dated 16 November 2016.
ISSUES FOR DETERMINATION
The issues for determination are whether or not:
(a)Ms Blong has been overpaid FTB for the 2013/14 and 2014/15 years;
(b)the 2014 FTB Debt and 2015 FTB Debt are recoverable; and, if yes
(c)the 2014 FTB Debt and 2015 FTB Debt should be written off;
(d)the 2014 FTB Debt and 2015 FTB Debt should be waived due to administrative error; or
(e)“special circumstances” exist such that the 2014 FTB Debt and 2015 FTB Debt should be waived.
For the reasons set out below, I have affirmed the decision under review.
WAS MS BLONG OVERPAID FTB PAYMENTS?
Pursuant to section 58 of the New Tax System (Family Assistance) Act 1999 (“Family Assistance Act”), entitlement to FTB is calculated with reference to a person’s adjustable taxable income. FTB is also subject to the maintenance income test in Division 5 of Schedule 1 of the Family Assistance Act.
Where a person, such as Ms Blong, collects her child support assessment amounts privately, that person’s maintenance income is determined in accordance with section 20D of Schedule 1 of the Family Assistance Act. Pursuant to section 20D(2) of Schedule 1 of the Family Assistance Act, if it is reasonable for the person, such as Ms Blong, to take action to obtain the child maintenance entitlements, they are deemed to have received the assessed child maintenance amounts.
The effect of section 58A of the Child Support (Assessment) Act 1989 (Cth) (“Assessment Act”), in this instance, is that where Secretary becomes aware that a parent’s adjusted taxable income is such that the child support assessment amount should be a different rate to the rate previously determined, the Registrar must immediately amend the child support assessment payable.
When the Registrar became aware that Mr Walker’s taxable income exceeded the amount estimated and relied upon for the 2013/14 year and 2014/15 year, and that as a result, Ms Blong was entitled to a higher amount of child support, the rate of FTB payments had to be varied. As a result of those variations, it was determined that Ms Blong had been overpaid.
Section 71 of the A New Tax System (Family Assistance) Administration Act 1999 (Cth)
(“Administration Act”) provides that overpaid FTB debts are debts due to the Commonwealth.
At the hearing, Ms Blong confirmed that she did not dispute the calculations of the amounts of the 2014 FTB Debt and 2015 FTB Debt.
ARE THE 2014 FTB DEBT AND 2015 FTB DEBT RECOVERABLE?
Even if a debt is owed, the Secretary may write off, or waive, a debt in certain circumstances set out in sections 95, 97 and 101 of the Administration Act.
Should the 2014 FTB Debt and 2015 FTB Debt Be Written Off?
Section 95 of the Administration Act provides relevantly:
Section 95 - Secretary may write off debt
(1) The Secretary may, on behalf of the Commonwealth, decide to write off a debt for a stated period or otherwise, but only if subsection (2), (4A) or (4B) applies.
Secretary may write off debt if debt irrecoverable or debt will not be repaid etc.
(2) The Secretary may decide to write off a debt under subsection (1) if:
(a) the debt is irrecoverable at law; or
(b) the debtor has no capacity to repay the debt; or
…
(d)it is not cost effective for the Commonwealth to take action to
recover the debt.
(3) For the purposes of paragraph (2)(a), a debt is taken to be irrecoverable at law if, and only if:
(b)there is no proof of the debt capable of sustaining legal proceedings for its recovery; or
…
(4) For the purposes of paragraph (2)(b), if a debt is recoverable by means of:
(a)deductions under section 84; or
(aa) deductions under section 1231 of the Social Security Act 1991; or
(b)setting off under section 84A family assistance; or
(c)application of an income tax refund under section 87; or
(d)setting off under section 87A against a payment referred to in paragraph 82(2)(a);
the person is taken to have a capacity to repay the debt unless recovery by those means would cause the person severe financial hardship.
A debt is taken to be irrecoverable at law if, and only if, there is no proof of the debt capable of sustaining legal proceedings for its recovery: section 95(3) of the Administration Act.
If a debt is recoverable by means of (section 95(4) of the Administration Act):
(a)deductions under section 84 of the Family Assistance Act; or
(aa) deductions under section 1231 of the Social Security Act 1991; or
(b)setting off under section 84A Family Assistance Act; or
(c)application of an income tax refund under section 87 Family Assistance Act; or
(d)setting off under section 87A Family Assistance Act against a payment referred to in paragraph 82(2)(a);
the person is taken to have a capacity to repay the debt unless recovery by those means would cause the person severe financial hardship.
Is the debt irrecoverable at law? (section 95(3), Administration Act)?
None of the circumstances set out in section 95(3) of the Administration Act exists in this case and therefore I find the debt is not irrecoverable at law.
Does Ms Blong have the capacity to repay the debt? (section 95(4), Administration Act)?
If a debt is recoverable by means of deductions from social security payments, income tax refunds or family assistance payments, the debtor is taken to have a capacity to repay the debt unless recovery by those means would result in the debtor being in severe financial hardship.
The issue is whether Ms Blong is suffering from “severe financial hardship”.
At the hearing, Ms Blong submitted that she was suffering from severe financial hardship. According to Ms Blong’s evidence at the hearing and her Statement of Financial Circumstances:[17]
[17]         Ms Blong’s Statement of Financial Circumstances dated 8 August 2017.
(a)she receives income of approximately $5,750.68 per month made up of:
(i)take home income of approximately $3,904.60;
(ii)child support disbursements of, on average, $1,536.08;[18]
[18]         See also Exhibit 3, Child Support Agency records.
(iii)FTB payments of $310.00;[19] and
[19]         See also Exhibit 3, Centrelink records
(b)has monthly expenses totalling approximately $6,080.00 per month made up of:
(i)Rent - $1,560;
(ii)Child education expenses - $200
(iii)Fuel - $150;
(iv)Private health cover - $170;
(v)Car loan - $300;
(vi)Personal loan repayments - $900;
(vii)General household expenses - $1,900;
(viii)Electricity - $150;
(ix)Credit card repayments - $400;
(x)Car registration/insurance/repairs - $300;
(xi)Phone - $50.
Ms Blong told the Tribunal that she also relies on, when necessary, her parents for financial assistance, and at the end of the week, she is left with approximately $100.
Since 1 June 2016, $15 per fortnight is being deducted from Ms Blong’s FTB payments to go towards repaying the 2014 FTB debt and 2015 FTB debt.[20] Ms Blong told the tribunal that her tax refund from the financial year ending 30 June 2016, of approximately $2000, was also used towards repayment of the debt and that this would occur again in relation to the tax return for the financial year ended 30 June 2017.
[20] Exhibit 1, T Documents, T 12, page 183, Centrelink records.
The Tribunal has decided in other matters that severe financial hardship needs to involve severe or extreme financial suffering and that a person’s entire financial position would need to be materially less than the current rate of their pension.[21]
[21] Re Lumsden and Sec, Department of Social Security [1986] AATA 228; Stubbs and Sec, Department
of Family and Community Services [2003] AATA 729; L and Department of Social Security [1995] AATA 159; Sec, Department of Family and Community Services and Birgden [2003] AATA 67.
There is no evidence that Ms Blong suffers from severe financial hardship or that she does not have the capacity to pay. Ms Blong is managing to house herself and to care for her child and her expenses do not outweigh her income.
I also refer to the Family Assistance Guide, which is used by Centrelink, and sets out in section 1.1.S.45 that:
For the purpose of considering a waiver or a write-off, or reducing or suspending recovery of an FTB advance a person would be subject to severe financial hardship if their net fortnightly income (after reasonable expenses are deducted from gross income) over the debt repayment period (for both debts and advance recovery) would be less than the minimum fortnightly amount the person would be allowed to repay under the flexible repayment arrangements for FA debts.
The Tribunal is not bound to apply the Guide but it may, and it should apply it in exercising its discretion unless it is unlawful or “tends to produce an unjust decision”.[22]
[22] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, at 645.
Based on the Guide, Ms Blong would not be found to be suffering from severe financial hardship.
Ms Blong does have the capacity to pay and therefore there is no basis for the FTB Debts to be written off pursuant to sections 95(2)(b) of the Administration Act.
Is it cost-effective for the Commonwealth to recover the debt?( section 95(2)(d), Administration Act)?
There is no indication from the Secretary that it is not cost-effective for it to recover the debt.
Should the debts be written off?
There is no basis for the FTB Debts to be written off under section 95 of the Administration Act.
SHOULD THE FTB DEBTS BE WAIVED DUE TO ADMINISTRATIVE ERROR (SECTION 97, ADMINISTRATION ACT)?
The Secretary must also waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt: section 97 of the Administration Act.
If an administrative error was the sole cause for the debt arising, the Secretary must waive the right to recover the debt. The debt “must be "attributable solely" to an administrative error. It is not enough that, in the absence of administrative error, the debt would not have arisen. Administrative error must be the sole cause, not merely one of multiple causes”: Secretary, Department of Family & Community Services v Sekhon[2003] FCA 76, per Wilcox J (at [41]) and on appeal to the Full Federal Court Sekhon v Secretary, Department of Family and Community Services[2003] FCAFC 190, at [23].
The FTB Debts arose due to a reconciliation by the Child Support Registrar of the child support assessments and corresponding FTB amounts paid to Ms Blong during a time when she was not eligible to receive those payments. Ms Blong does not dispute the reconciliation calculations.
The FTB Debts did not arise solely from, or in relation to any, administrative error.
There is no basis for the FTB Debts to be waived under section 97 of the Administration Act. Ms Blong does not contend that there has been any administrative error.
ARE THERE SPECIAL CIRCUMSTANCES THAT MAKE IT DESIRABLE FOR THE FBT DEBTS TO BE WAIVED: SECTION 101, ADMINISTRATION ACT?
There are a few elements to be satisfied under section 101 of the Administration Act before a debt may be waived. First, the debt must not have arisen from the debtor, that is, Ms Blong must not have knowingly made a false statement or a false representation or knowingly failed or omitted to comply with a provision of the Act or the Administration Act. Second, there must be special circumstances (other than financial hardship alone) that make it desirable to waive the debt. Third, it must be more appropriate to waive than to write off the debt or part of the debt.
The Secretary does not contend that Ms Blong “knowingly” failed to comply.

The issue, therefore, is whether special circumstances exist.
What does “special circumstances” mean?
The Act does not define what constitutes “special circumstances”.
There has been considerable judicial consideration of the phrase in the context of other social security legislation, for example:
·“Special” denotes something different from the usual or ordinary: Groth v Secretary, Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541, at 545 per Kiefel J (as she then was).
·French J (as he then was) said in in Secretary, Department of Social Security v Hales (1998) 82 FCR 154, at 162:
The concept of special circumstances is broad. A constellation of factors, including financial circumstances, may fall within it. The express exclusion of financial hardship alone as a special circumstance is an indicator that it would otherwise be included. This gives some measure of the range of circumstances which will qualify as special. But as a matter of grammar and ordinary logic, the exclusion of financial hardship alone as a special circumstance does not mandate its inclusion in the range of matters constituting such circumstances for the purpose of enlivening the Secretary's discretion… It is inappropriate to constrain that flexibility by imposing a narrow or artificial construction upon the words. It may be that there will be few cases in which the Secretary will be satisfied that there are special circumstances in the absence of financial hardship. It may be that there are few cases in which having found special circumstances to exist, the Secretary would exercise the discretion to waive in the absence of financial hardship. But to anticipate the limits of the categories of possible cases by imposing on the language of the section a fetter upon its application which is not mandated by its words, is to erode its useful purpose.
·The Full Federal Court in Riddell v Secretary, Department of Social Security (1993) 42 FCR 443 held, at 450:
Each particular case must be considered on its merits. It is the essential nature of the provision to create a broad discretion to meet the great variety of circumstances which must occur, raising considerations of individual hardship, need, fairness, reasonableness, and whatever else may move an administrator, keeping in mind the scope and purposes of the Act, to make a decision one way or the other.
·Jacobson J in Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs v Jones (2012) 89 ATR 267; [2012] FCA 639 explained the effect of the authorities as follows [emphasis added]:
[51] ...the phrase “special circumstances”, although lacking in precision, is sufficiently understood as including events or things that render the operation of the statute in a particular case as unfair, unintended or unjust. What is required is something that takes the case out of the ordinary, and unfairness or unintended consequences may show that this exists. Moreover, the circumstances of the case are not confined to matters that are external to the operation of the statutory scheme: see Smith per von Doussa J at 60, 61–62; Groth
per Kiefel J at 545, Kertland v Secretary, Dept of Family and Community Services (1999) 95 FCR 64 per Merkel J at 71, 73; Kirkbright v Secretary, Dept of Family and Community Services (2000) 106 FCR 281 per Mansfield J at [22], [26]–[27] and [31]–[32]; see also Secretary to the Department of Family and Community Services v Allan (2001) 116 FCR 1 per Heerey J at [17].
The AAT has also considered the phrase and held that the interpretation in Beadle and Director-General of Social Security (1984) 6 ALD 1, at [12] (i.e. that the circumstances must be unusual, uncommon or exceptional), applies to the Act.[23]
[23]See Hunnibell and Secretary, Department and Community Services [2004] AATA 992, at [19]; Papps and Secretary, Department of Family and Community Services [2005] AATA 660, at [37].
In summary, the circumstances relied upon to be “special” must be unusual, different, uncommon or exceptional.[24]
[24]The core requirement for “special reasons” is that there be something “unusual or different”: French J in Boscolo v Secretary, Dept of Social Security [1999] FCA 106; (1999) 90 FCR 531, at [18]; Barker J in Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084,
Do special circumstances exist?
The Secretary submits that no special circumstances exist and that therefore the discretion in section 101 of the Administration Act cannot be invoked.[25]
[25] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 11 April 2017, paras 37-38.
Ms Blong gave evidence before the Tribunal that she originally agreed to privately collect child support from her husband in 2012 because at that time Mr Walker was very ill and not working and it was not certain that Mr Walker would have any future capacity to work. Further Ms Blong said that:
(a)she did not want to engage in a custody battle with Mr Walker over the residency of her child;
(b)she was not aware that pursuant to section 20D(2) of Schedule 1 of the Family Assistance Act that she could be deemed to have received assessed child maintenance amounts; and
(c)at the time she entered into the private collection arrangement with Mr Walker she was suffering from postnatal depression.
Ms Blong said that she has taken advice from 2 solicitors regarding taking action against Mr Walker to recover the child maintenance amounts that she has not received but that the advice she has obtained is that it would cost her in the vicinity of $10,000-$15,000 and that it was a high risk because she is unlikely to recover any money from Mr Walker. Ms Blong says that in the event that she attempted recovery proceedings that it is likely that Mr Walker would return to New Zealand and that he has threatened to fight for custody of their child. Ms Blong says that over the last 4 years Mr Walker has been assessed as owing approximately $85,000 in child maintenance amounts but that she has received only $40,000 in that time. Ms Blong says if she knew that she could recover the $45,000 from Mr Walker she would have pursued him for it. Ms Blong says that she contacted the Child Support Agency in or around 2012/2013 to inform them that the estimate of Mr Walker’s income, on which they were basing the child support assessment, was an underestimate and asked if they had been taking into account the amounts Mr Walker was receiving by way of income protection insurance payments. Ms Blong says that the Child Support Agency told her that income support payments were not income that would be taken into account in assessing child support. Ms Blong said, that as a result, she believed that there would not be any arrears payable by her once Mr Walker’s actual income was known. Ms Blong believes that the Respondent should be seeking to recover the FTB Debts from Mr Walker and not from herself, particularly given that Mr Walker failed to lodge his tax returns for so many years.
Ms Blong also said that her mental health should be taken into account. Ms Blong says she is stressed and anxious as a result of having to deal with this over the last 18 months and has been on antidepressants since 2012 and more recently has had to seek private counselling.
Ms Blong says that based on her evidence, special circumstances exist such that the discretion should be exercised to waive the FTP debts. Ms Blong says the special circumstances are primarily:
(a)Mr Walker’s health and that whether he would even have any ability to pay the child support amounts that he owes even if she did pursue him;
(b)that she does not have the money to pursue her husband for the outstanding child maintenance payments;
(c)that Mr Walker has sent her texts threatening to return to New Zealand and not work and to apply for residency of their child in the event that Ms Blong pursues him for the outstanding child support amounts;
(d)she never received the deemed child support amounts that have resulted in the FTB Debts; and
(e)her mental health.
The reasons given by Ms Blong for why she entered into a private collection arrangement with Mr Walker are understandable. However, they do not give rise to a special circumstance of the kind required under section 101 of the Administration Act. In relation to whether or not the Child Support Agency told Ms Blong that income protection payments received by Mr Walker would not be taken into account, there is simply no record to corroborate that evidence. The available records of communications between Ms Blong and the Child Support Agency at the relevant time show that:[26]
(a)on 6 March 2012 the Child Support Agency explained to Ms Blong that if the estimated income is lower than the actual income that there will be arrears payable and that because she had entered into a private arrangement it would be her responsibility to collect any arrears herself;
(b)on 31 May 2013 Ms Blong informed the Child Support Agency that Mr Walker was off work and on unpaid sick leave for a decent part of the 2011/2012 financial year but that he was now working full-time earning an approximate salary of $130,000.
[26] Exhibit 3, Child Support Agency Records.
There is no mention in the Departmental records of Ms Blong informing Centrelink or the Child Support Agency that Mr Walker was receiving income protection that needed to be taken into account for the purposes of assessing the child support amounts payable.
In relation to whether or not it is reasonable for Ms Blong to take action to obtain the child maintenance entitlements from Mr Walker, there is simply no evidence before the Tribunal to enable an assessment that to take such step would fail. Ms Blong is legally entitled to seek to recover that debt and therefore in the circumstances it is not unreasonable for Ms Blong to take such action. Whilst it is apparent that Ms Blong is extremely concerned that to take such action could result in Mr Walker contesting residency of their child, there is no corroborating evidence of this, nor is there any evidence that would make this, if it were true, a special circumstance. Custody disputes and fights about child support are, unfortunately, everyday occurrences in the Australian legal system.
Marital issues, including child support and custody disputes, busy work and family commitments and the normal vicissitudes of life are not “uncommon”, “out of the ordinary”, or “exceptional” circumstances. They are not, generally, “special circumstances” for the purposes of the Act. In Gammaldi and Secretary, Department of Social Services (Social services second review) [2016] AATA 1028 the Tribunal found that even where the Applicant had had a difficult year, with family health issues, business challenges, and increased responsibilities, this did not constitute uncommon or unusual occurrences and were not “special circumstances”.
Consistency with comparable cases and decisions is “[o]ne of the factors to be considered in arriving at the preferable decision”.[27]
[27] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 per Brennan J (as President of
the AAT), at 643.
In relation to Ms Blong’s mental health, there is neither corroborating medical evidence regarding Ms Blong’s current mental health issues nor the impact they are having upon her at the present time. Ms Blong did not wish to provide the Tribunal with her medical records at this stage. In any event, Ms Blong confirmed that she has continued to work full-time, albeit because she has a supportive employer, and continues to be able to fulfil her parenting responsibilities. As a result, I do not consider Ms Blong’s mental health issues to constitute a special circumstance of the purposes of section 101 of the Administration Act.
On the available evidence, I am unable to find that Ms Blong’s financial and health issues constitute “special circumstances”. There is no basis for the 2014 FTB Debt and 2015 FTB Debt to be waived under section 101 of the Act.
In the event that Ms Blong circumstances change it is open to Ms Blong to make a fresh application for waiver of the FTB Debts.
CONCLUSION
Ms Blong’s appeal fails.
The decision under review is affirmed.

I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

..........................[Sgd]..............................................
Associate
Dated: 25 August 2017

Date of hearing: 8 August 2017

Applicant: By Phone

Solicitors for the Respondent: Department of Human Services

at [37].

[2017] AATA 1360

25 August 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Standing

Statutory Construction

Remedies

Date of hearing:	8 August 2017
Applicant:	By Phone
Solicitors for the Respondent:	Department of Human Services