CJJQ and Child Support Registrar (Child support second review)

[2021] AATA 5283

CJJQ and Child Support Registrar (Child support second review) [2021] AATA 5283 (3 September 2021)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2020/3027
GENERAL DIVISION	)

Re: CJJQ
Applicant

And: Child Support Registrar
Respondent

And: PRSS
Other Party

DIRECTION

TRIBUNAL:  Member G Hallwood

DATE OF CORRIGENDUM:            8 September 2021

PLACE:           Adelaide         

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

1.The decision on page 1, to alter the text as indicated:

The Tribunal sets aside the decision under review and in substitution decides that there is no requirement under s54F, and no reason to invoke the discretion under s54H of the Child Support (Assessment) Act 1989 (Cth) to revoke the existing care determination that: CJJQ’s child support percentage of care is 100% and PRSS’s child support percentage of care is 0%; with effect from 29 January 2016 due to the operation of subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 (Cth). 

2.  At paragraph 10, to delete the fourth word ‘2018’ and replace it with ‘2019’. 

........................[SGND]........................

G HALLWOOD
  (Member)

Division:GENERAL DIVISION

File Number:          2020/3027

Re:CJJQ  

APPLICANT

Child Support RegistrarAnd  

RESPONDENT

AndPRSS

OTHER PARTY

DECISION

Tribunal:Member G Hallwood

Date:3 September 2021

Place:Adelaide

The Tribunal sets aside the decision under review and in substitution decides that there is no requirement under s54F, and no reason to invoke the discretion under s54H of the Assessment Act to revoke the existing care determination that: CJJQ’s child support percentage of care is 100% and PRSS’s child support percentage of care is 0%; with effect from 29 January 2016 due to the operation of subsection 87AA(2) of the Collection Act.

..............[SGND]...................

Member G Hallwood

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.

Catchwords

CHILD SUPPORT – percentage of care – whether to revoke an existing care determination – whether there was a change of care percentage – whether special circumstances prevented lodgement of objection – date of effect – decision set aside and substituted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Child Support (Assessment) Act 1989 (Cth)

Child Support (Registration and Collection) Act 1988 (Cth)

Evidence Act 1995 (Cth)

Cases

Drake v Minister for Immigration & Ethnic Affairs (No 2) (1979) 2 ALD 634.
P v Child Support Registrar [2013] FCA 1312.
Polec & Stalker & Anor (SSAT Appeal) [2011] FMCAfam 959.

Secondary Materials

Child Support Guide, Department of Social Services.  

REASONS FOR DECISION

Member G Hallwood

3 September 2021

Introduction

1. This is a dispute between CJJQ (the mother) and PRSS (the father) about child support payments for the care of their daughter who is the youngest of their two children. Since 1 July 2009 the child support assessment was based on the daughter being 100% in the care of the mother, and 0% in the care of the father. The father asserts that their daughter was no longer in the mother’s care from 29 January 2016. The mother argues that the daughter continued to be in her care.

2. The decision under review is the decision of the Child Support Registrar (the Registrar)[1]that from 29 January 2016 the percentage of care attributed to each of the parents of the daughter is 0%; a decision affirmed by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) on 17 March 2020.[2]

   [1] T14, pages 62-71.

   [2] T2, pages, 7-13.

   Background

3. The daughter was born on 18 February 2000. CJJQ and PRSS have another child (the son) born on 21 April 1998. For consistency I will refer to the other key actors in this matter by their relationship to the daughter: CJJQ’s sister (the aunt), and CJJQ’s mother (the grandmother).

4. When the mother and father separated in August 2000, the father remained in Sydney and the mother and two children moved to Adelaide.

5. From late 2000, child support in relation to the daughter was registered with the Child Support Agency (the Agency) and from 8 August 2007 was registered for collection by the Agency.

6. From 1 July 2009, the Agency recorded the daughter as being 100% in the care of the mother and 0% in the care of the father.[3]

   [3] T46, page 143.

7. On 7 September 2017, the father contacted the Agency to discuss current care details, income details and debts in relation to the daughter[4], and on 11 September 2017 he lodged a ‘Ending a child support assessment’ form online (the Form)[5] for the reason ‘[the daughter] has not been living with or supported by her mother since 29 Jan 16’.[6]

   [4] T4, page 43.

   [5] T5, pages 44-48.

   [6] T5, pages 44-48.

8. On 14 December 2017, the delegate of the Registrar decided that from 29 January 2016 neither parent had care of the daughter.[7]

   [7] T14, page 62.

9. On 19 February 2019, the mother objected to the decision and also requested that special circumstances be considered with respect to the date from which any objection decision can take effect[8]. On 27 June 2019, an internal review by an authorised objections officer disallowed the objection against the care determination.[9]

   [8] T20, pages 77-78.

   [9] T39-40, pages 127-134.

10. On 17 July 2018, the mother sought a review by AAT1[10] and on 17 September 2019 the father was added as an interested party.[11] The AAT1 conducted the hearing on 17 March 2020 and affirmed the objection decision.[12]

    [10] T42, page 136.

    [11] T43, page 137.

    [12] T2, page 7-13.

11. On 1 May 2020, the mother applied to the Administrative Appeals Tribunal – General Division for a review of the care determination.[13] This application was heard over two days:  31 March 2021 and 9 August 2021. On 31 March 2021, the Tribunal heard the majority of evidence relating to the percentage of care and dates relating to applications and possible changes in care. Oral evidence was heard from the mother, daughter, son and aunt on the first day which the father did not attend. The hearing was adjourned to allow medical evidence to be provided of special circumstances relating to the late objection application by the mother. The second day of hearing on 9 August 2021 was attended by the mother. The father also attended by telephone.

    [13] T1, page 1-2.

12. The Tribunal’s decision has regard to the documented evidence as well as the oral evidence given at the hearing.  The Applicant filed the following documents which were accepted into evidence:

    1.Witness statement of the aunt dated 14 October 2020 (Exhibit A1);

    2.Witness statement of the mother dated 14 October 2020 (Exhibit A2);

    3.Witness statement of the grandmother dated 14 October 2020 (Exhibit A3);

    4.Witness statement of the son dated 14 October 2020 (Exhibit A4);

    5.Witness statement of the daughter dated 14 October 2020 (Exhibit A5);

    6.Bank statements of the daughter for the period of 6 March 2013 to 6 June 2013 (Exhibit A6);

    7.Bundle of Bank statements of CJJQ (redacted), various dates (Exhibit A7);

    8.Medical Report of Dr Tyllis dated 3 May 2021 (Exhibit A8);

    9.Psychology Reports of Dr Black, various dates from May 2021 to June 2021 (Exhibit A9);

    10.Psychology Report of Dr Black dated 14 June 2021 (Exhibit A10);

    11.Medical Report of Dr Turner dated 15 June 2021 (Exhibit A11);

    12.Medical Report of Dr Turner dated 2 August 2021 (Exhibit A12);

    13.Briefing letters from Applicant’s Representative to Applicant’s treating practitioners (Exhibit A13).

    The Respondent filed Tribunal Documents (Exhibit R1) and the Other Party filed submissions dated 17 November 2020 (Exhibit OP1) and 5 August 2021 (Exhibit OP2), which were also accepted into evidence.

ISSUES TO BE DETERMINED

1. Based on the change in care application lodged by the father on 11 September 2017, the issues to be determined are:

   1.Should the existing determination of percentage care in relation to the daughter (100% in the care of the mother, 0% in the care of the father) be revoked?

   2.If so, from what date?

   3.What is the date of effect of any new determination?

   Should the existing determination be revoked?

2. A parent’s percentage of care for a child is calculated to reflect the cost of the child being met by each parent based on the care they are likely to provide for the child in a relevant period. A parent’s percentage of care for a child may change as care arrangements change.[14]

   [14] See Child Support Guide 2.2.1

3. A person may notify the Registrar that the care has changed. A care percentage determination may be made by the Registrar under the Child Support (Assessment) Act 1989 (the Assessment Act). A separate determination of percentage of care for a child is made in respect of each parent carer.

4. Since 1 July 2008, the Agency had recorded the daughter as being 100% in the care of the mother and 0% in the care of the father.[15]

   [15] T40, page 129.

5. In early September 2017, the father contacted the Agency asserting that the daughter was no longer in the care of the mother and had not been since 29 January 2016.

6. Under section 74 of the Assessment Act, the Registrar must immediately take such action as is necessary to take account of any change in circumstances such as a care change.

7. In circumstances where a percentage of care determination has been made, a new percentage of care determination cannot be made to take account of the care change unless the existing percentage determination is revoked.[16]

   [16] Subparagraphs 49(1)(b)(i) and 50(1)(b)(i) of the Assessment Act.

8. At chapter 2.2.2, the Guide provides the following guidance for determining changes in care:

   Change in pattern of care

   When considering a change in care, the Registrar will consider the reason for the request for a new care calculation. If there has been a change to the pattern of care, the Registrar will need to identify the event that is relevant. The event may be used to determine the commencement (i.e. date of effect) of the care period (2.2.1). The Registrar will need to determine the percentage of care that is likely to occur in the care period. Not all changes will result in the calculation of a different care percentage.

   What constitutes a change to the pattern of care will depend upon the individual circumstances of the case.

   In circumstances where the care pattern established is broadly consistent year to year, there is no reason to depart from the norm of assessing care over a 12-month period. In circumstances where the pattern of care is established over, or is referrable to, a shorter or longer period of time, reference to that period of time as the care period may be more appropriate.

9. The Tribunal is not bound to apply policy or guidelines; however as it is desirable for administrative decisions to be consistent, the Tribunal will apply policies unless there are cogent reasons for departing from them.[17]  In this case the Tribunal is satisfied that applying the guideline is consistent with the terms of the statute.

   [17] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

10. In this matter the pattern of care has existed since the mother and children moved to Adelaide following the parental separation in 2000. Because of the consistency from year to year the Tribunal sees no reason, and has received no argument, to depart from the norm of assessing care over a 12-month period.

11. When requesting review of the care determination, the father contended that the change in care occurred on 29 January 2016. The Tribunal is satisfied that the relevant care period runs for 12 months from 29 January 2016 until 28 January 2017.

12. In considering the request for a new care calculation, the Tribunal looks to the reasons provided by the father when he lodged the  Formto ascertain the event that triggered the change. The reasons stated on the Form are: ‘[the daughter] has not been living with or supported by her mother since 29 Jan 16’.[18]

    [18] T5, page 47.

13. The first decision is whether, in respect of the changes in care application made by the father on 11 September 2017, the then existing determination of percentage care should be revoked.

    The father’s evidence

14. The father contends that his daughter moved out of the mother’s house and into the house of her aunt on 29 January 2016.

15. An Agency file note dated 7 September 2017 records that the father contacted the Agency stating, amongst other things, that he had evidence showing his daughter had left the mother’s care in March 2016. The Form lodged on 11 September 2017 clarified that his daughter had left the mother’s care on 29 January 2016 based on an email from his daughter dated 11 September 2017 stating: ‘I moved into Aunty […]’s January 29 2016’.[19] The Form identified that the father had reported this to the Agency previously and that he now had documentary evidence in support of this assertion.[20]

    [19] T5, page 51

    [20] T5, page 47.

16. Other documentary evidence provided by the father to the respondent were: a Westpac bank statement for the period 12 November 2015 to 4 March 2016 addressed to the daughter at the street address of the aunt;[21] and a copy of the daughter’s provisional driver’s licence listing her address as the street address of her aunt.[22]

    [21] T5, page 49.

    [22] T5, page 50.

17. The father contends that his daughter had moved out of the home of her mother’s following arguments; and had moved permanently into her aunt’s home and out of the care of her mother on 29 January 2016. The father asserts that he had been in touch with the Agency long before lodging the Form with the documentary evidence but the Agency had taken no action because he had no written proof she had moved out of home until he obtained the evidence in September 2017. The AAT1 records that the father stated that his daughter had ‘complained to him that she was living separately [from the mother] in her auntie’s house and was meeting a number of her own expenses from the income she received from a casual position at McDonalds’.[23]

    [23] T2, page 10.

18. During this current hearing the father drew the Tribunal’s attention to an Agency file note dated 19 February 2019 in which the mother’s grounds for objection against the care determination were recorded. In particular, the father noted that the mother had stated ‘[the daughter] was staying at my sister’s house…’ and ‘[o]nce [the daughter] came home at the end of the school year in Nov/Dec 2016, my mother moved back to my sister’s’.[24]

    The mother’s evidence

    [24] T20, pages 77-78.

19. The mother does not dispute that her daughter went to live with the aunt, she just disputes the date and the nature of the move. The mother contends that her daughter went to live at her aunt’s house on 29 January 2017 so that she was better able to study while completing Year 12, and that during the whole of 2016 her daughter lived with her.

20. The mother provided a description of her own medical condition at the time including a number of her own physical and psychological ailments including depression, high blood pressure, high cholesterol, Type 2 diabetes, arthritis and disc degeneration in her lower spine that have all impacted her life over many years. She also told the Tribunal that she and her two children have had to move house many times since coming to Adelaide in 2000, living at three addresses between 2015 and 2017. During 2017 the mother lived five minutes on foot along the road from the aunt. The mother put to the Tribunal that she, the aunt, and mother were a very close-knit family and that the daughter and son also were close to their aunt. At the beginning of 2017 the grandmother had boarded at the aunt’s house.

21. The son had left school after completing Year 12 and continued living with his mother. From August 2016 the son was working part time at McDonalds keeping irregular hours and having his friends over to his mother’s house. The mother said it was obvious this would be disruptive to the daughter while she was studying during Year 12.

22. The family decided that it would make sense for the daughter and grandmother to swap bedrooms so that the daughter could have a reasonable opportunity to study in peace during the school year living at the aunt’s house. The mother contends that is what occurred from 29 January 2017 until the end of the school year when the grandmother and the daughter swapped back.

23. In relation to the father’s evidence: the mother stated that the daughter’s email of 11 September 2017 to the father simply had the wrong year as the start date for the daughter moving to the aunt’s house. The mother explained that both the daughter and the son had bank accounts using the aunt’s address since 2013 because that was the only stable address they could use with the family moving house so often. The aunt’s address was on the daughter’s provisional drivers’ licence because the daughter used her bank statement as identification when she obtained her licence.

24. The mother told the Tribunal that she continued to care for her daughter financially and emotionally and that nothing had changed except where her daughter lived. She gave examples of continuing involvement such as taking her daughter to volleyball and watching her games, and attending parent and teacher nights at her daughter’s school. The mother continued to take her daughter for driving lessons until she obtained her provisional licence in February 2017.

25. It was put to the Tribunal that the mother would regularly visit her sister’s house and the daughter would often come back on weekends for meals at the mother’s house. While the mother was in financial difficulty, she continued to take responsibility for school fees agreeing to a payment plan.

26. The mother provided the Tribunal with a copy of her daughter’s bank statement from March 2013 to June 2013 as evidence in support of her statement that the daughter’s address on her bank statement was not a reflection of her daughter moving into her aunt’s home.

    Daughter’s evidence

27. The daughter told the Tribunal that she had completed Year 12 during 2017 through a local High School and a local Adult College, the latter where she completed a Certificate III in Business. She said she moved from her mother’s home to her aunt’s house in 2017 because her brother’s lifestyle was disruptive when she was studying. This had become worse when her brother was old enough to drink – which was April 2016. It was not such a problem when she was in Year 11 but his ‘weird hours’ [working at McDonalds from August 2016] and having his friends over grew worse. She felt it was important to do well at school. The daughter said she had suggested swapping houses to improve her ability to study and then she spoke to her mum, then her aunt and grandmother who all agreed.

28. She stayed at her aunt’s house until October 2017 and then moved back to her mother’s house. She was still at her mother’s house for her 18^th birthday in February 2018. It had always been the intent that she would return to her mother’s house. The daughter told the Tribunal that her mother was very present in her life during 2017, taking her to volleyball and going to school events such as parent and teacher nights.

29. The daughter explained that her mother gave her money ‘all the time’. Her mother would give her daughter $20 to $50 almost every time she saw her as well as occasionally transferring money into her bank. The mother paid for food for school, petrol, clothes, her “P” plate licence in February 2017, a third of the cost of the car purchase and car registration. Her mother paid for volleyball fees and uniforms and paid for her hair appointment and dress for the school formal. Occasionally she would stay with her mother when her brother was away for the night and did sleep on her brother’s couch on occasion. She would still help her mother with washing and occasionally with preparing meals.

1. The daughter had worked part time at McDonald’s since 2015, short shifts once or twice a week, earning between $90 and $200 a fortnight. She said she used that money on herself, and going out to the city.

2. In relation to the email to her father stating that she had moved in with her aunt on 29 January 2016, the daughter told the Tribunal that she had put in the incorrect year and the correct date was 29 January 2017. She stated that she had shown her father a certificate in childcare in 2016 which had her aunt’s address on it and that after that her father kept asking for information showing her aunt’s address. She said that she had used her bank statement as proof of identification to obtain her driver’s licence so that then had her aunt’s address. She also used her aunt’s address for certificates and other things of importance because they moved house so often. In about October 2018, several months after her 18^th birthday, the daughter moved out of home to live with her partner.

3. The daughter provided a signed statement dated 14 October 2020 which aligned with her oral evidence.

   The aunt’s evidence

4. The aunt gave sworn evidence that supported the evidence of the mother and the daughter. She also provided a signed written statement which was also in accord with the evidence of the mother and the daughter. Below represents a summary of that evidence.

5. The daughter moved in with the aunt, and the grandmother swapped bedrooms moving in with the mother from 29 January 2017 – the day before the daughter started school. It was a temporary move because it was easier for the daughter to study and she stayed for most of the school year.

6. The aunt’s description depicted a family group operating from two houses close to each other. Although the aunt could not recall the daughter staying at her house during 2016, the daughter had stayed from time to time at the aunt’s house all of her life. In 2017 the grandmother continued to pay board of $90 a week to the aunt even when she was staying at the mother’s home. The daughter did not pay any board. The sister said that apart from an agreed short-term exchange of accommodation by the daughter and grandmother, everything else remained the same for the family.

7. The aunt says she only had responsibility for providing a bedroom, some meals, and a quiet place to study for the daughter. She thinks during 2017 she occasionally took the daughter to volleyball and paid for bits and pieces as she always had for her niece. Once she had her provisional drivers licence the daughter usually took herself to school.

8. The aunt’s signed statement dated 14 October 2020 included that the daughter and son both had keys to her house and they tended to come and go as they pleased. She said that they have always been a close family and socialised regularly.

   The son’s evidence

9. The son lived with his mother during 2016 and he moved out at the end of 2017. He stated that the daughter lived with them in 2016 but had moved out in early 2017 because the daughter ‘wanted quiet for study’. He was unsure how long the daughter stayed with the aunt but knew that his mother continued to pay for her care and upkeep. He saw his mother give the daughter money whenever she required it.

10. The son told the Tribunal that his aunt lived just down the road. In a written statement the son stated that the family regularly had family gatherings at both houses.

11. Until the daughter had her “P” plates the mother took her places regularly ‘as did he’. Even while his sister was living at his aunt’s house his mother took her to school and volleyball until she bought a car.

12. In July 2016 the son purchased a motorbike as did a number of his friends. He would often have his friends over and they were pretty noisy. He stated that he had never been as serious as his sister about school so did not care much about her need for a quiet environment.

13. In terms of money, the son said that he spent most of the money he earned at McDonald’s, on his motor bike and going out with friends. His mother paid for all of his other expenses such as food. He did not contribute to household expenses.

    Other evidence

14. The grandmother provided a written statement dated 14 October 2020. Her statement closely accorded with the mother’s evidence including the date the daughter and she swapped bedrooms, and the continuing care and support provided to the daughter by the mother when the daughter was living at the aunt’s house.

    Revocation during the care period 29 January 2016 until 28 January 2017

15. Subdivision C of Division 4 of Part 5 provides for the circumstances where the existing care determination must be revoked and where the existing care determination may be revoked. Sections 54F and 54H of the Assessment Act are relevant:

    (a)Section 54F provides that the existing care determination must be revoked where there would be a change to the cost percentage, that is, the percentage of a child’s cost the parent meets directly through care, if the Registrar determined new percentages of care that the parents had of the child.

    (b)Section 54H provides that the existing care determination may be revoked if, under the new care determination, the other percentage would not be the same as the person’s existing percentage of care and sections 54F and 54G of the Assessment Act do not apply.

16. Given the volume and consistency of evidence now available, the Tribunal is satisfied that the daughter continued to live with her mother and remained 100% in her care during the entire care period from 29 January 2016 until 28 January 2017.

17. The Tribunal is satisfied that evidence previously relied upon when it was determined that the child support assessment ended on 29 January 2016 was a result of a misguided belief by the father resulting from an email from the daughter to the father containing the incorrect date the daughter left the mother’s house to live with the aunt and a belief by her father that this was a permanent arrangement resulting from an argument. The use of the aunt’s address for official purposes was a result of the family not having a stable residential address. The daughter did not leave the mother’s house or her care during the care period.

18. The oral evidence and written statements of the mother, daughter, aunt and son in this matter all support that the daughter lived with the mother during the entire period 29 January 2016 to 28 January 2017 and that nothing changed in terms of the percentage of the daughter’s costs met by the parents directly through care. For this reason, the Tribunal is satisfied that there is no requirement under s54F, and no reason to invoke the discretion under s54H of the Assessment Act to revoke the existing care determination.

    Did the pattern of care change to cause revocation of the determination?

19. The Tribunal also considered whether there was a subsequent care period prior to the father lodging the Form that should be identified for the purpose of a change of care, and in particular from 29 January 2017 to 28 January 2018 – the twelve month period from the date from which the Tribunal is satisfied that the daughter left the mother’s home to live with the aunt.

20. If the Tribunal is satisfied that a parent has had, or is likely to have, no pattern of care, the Tribunal must make a determination under subsection 49(2) that the percentage of care is zero (subsection 49(3)). If the Tribunal is satisfied that a parent or a non-parent carer has had, or is likely to have a pattern of care, it must make a determination of the care percentage under subsection 50(2). This determination must be based on the actual care that is taking place (subsection 50(3)). In both situations, where a care arrangement is not being complied with, the Tribunal must consider sections 51 and 52 of the Assessment Act.

21. In situations such as this one, where the father disputes that the mother is providing care for the daughter, the Tribunal considers whether the mother is providing care. The term ‘care’ is not defined in the legislation. Section 54A(2) of the Assessment Act provides that the Registrar may work out the actual care a person has had based on the number of nights that a child was, or is likely to be, in the care of a person during the care period. However, the Tribunal may consider other criteria where, in the circumstances of the case, the methodology in this section is inappropriate or provides no guidance.[25]

    [25] P v Child Support Registrar [2013] FCA 1312.

22. The Federal Magistrates’ Court case of Polec & Staker & Anor[26] (Polec) which discusses the meaning of ‘care’ in detail, including the factors that should be taken into account when deciding if a person is providing care for a child: 

    (a)To what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, childcare, education, health care, emotional support, supervision, transport and extracurricular activities?

    (b)To what extent does the person make arrangements for others to meet the needs of the child?

    (c)To what extent does the person pay for the costs of meeting the needs of the child?

    (d)To what extent does the person otherwise provide financial support for the child?

    (e)To what extent does the child provide for his or her own needs or have those needs met from another source?

    (f)To what extent is the child financially independent or financially supported from another source?

    [26] SSAT Appeal) [2011] FMCAfam 959 at [56].

23. While Polec was intended to be no more than a guide to assist decision makers in determining the extent of care,[27] in this matter the Tribunal finds it is assistive in relation to the facts of this case and so addresses these considerations below.

    [27] P v Child Support Registrar [2013] FCA 1312 at [107] (Wigney J).

24. Oral evidence and written statements from the mother, daughter, and aunt together with the written statement of the grandmother confirm that the mother directly met or took responsibility for meeting the majority of the daughter’s needs.  The mother, daughter and aunt all told the Tribunal that the mother bought and paid for most of the daughter’s clothing, school lunches, transport costs, netball, and computer and pay TV services.  Even though she struggled financially, the mother contended that she continued to take responsibility for the daughter’s education and health care costs including entering into arrangements to pay outstanding amounts. The mother’s bank statements for 2016 and 2017 as well as a recovery agreement letter from the Department for Education and Child Development South Australia dated 5 December 2018 support this contention.

25. In relation to accommodation and board, oral evidence and written statements were provided by the mother and aunt, and a written statement was provided by the grandmother stating that an arrangement was in place in which the grandmother continued to pay board to the aunt when she was boarding with the mother so that the mother exchanged covering the grandmother’s costs of board for the cost she would normally pay toward her daughter’s accommodation and food.

26. The father relied on his discussions with his daughter indicating that she had not been happy at home and had moved out to live with her aunt as the basis for his belief that the daughter was no longer in the mother’s care.

27. The Tribunal is satisfied that the mother continued to meet the needs of the daughter and to accommodate her need for quiet accommodation in which to study for year 12 by making arrangements for the daughter to be boarded at the aunt’s home. The Tribunal is also satisfied that the mother continued to meet the cost of the child’s needs; either directly, or through arrangements such as those with the aunt and grandmother, or through a commitment such as with her schooling.

28. In oral evidence the daughter stated that she had been working part time at McDonald’s and had used her earnings on herself, such as by going out into town. This was supported by the evidence of the son stating that he used his earnings from McDonalds on his motor bike and to go out with friends and that his mother paid for all his other expenses such as food. He did not contribute to household expenses. There was some evidence that the aunt, grandmother, and son may have contributed some minor amounts to the daughter in respect of gifts but the Tribunal is satisfied that this is not beyond what occurred historically.

29. The daughter’s evidence was that she earned small amounts and that she spent these amounts on recreation for herself and there is no evidence available to suggest she was being financially supported by another source.

30. The evidence shows that the family: mother, aunt, grandmother, daughter, and son; is close knit in that they regularly caught up for meals, had keys to each other’s homes, and at that time lived in very close proximity. The evidence including bank accounts, oral and written submissions also indicates that the mother continued to care for the daughter financially and emotionally in the same way as she always had when the daughter changed where she slept and ate breakfast and some dinners to her aunt’s house down the road. The mother retained responsibility for the payment of school fees and health expenses even though at times she struggled to pay bills and entered into payment arrangements.

31. The mother, in agreement with her daughter, delegated responsibility for providing a quiet place to study and sleep to the aunt. The Tribunal is satisfied that this temporary agreed delegation of responsibility did not represent any diminution of care by the mother who still paid for the daughter’s needs, attended her netball games and parent and teacher nights, and was available to care for her as she had always been. While the funding of the daughter’s board was complicated because the grandmother continued to pay board to the aunt with the mother providing board for the grandmother and aunt providing board for the daughter, it is not a surprising approach for a temporary board arrangement and would have seemed a simple method to the mother and sister. The evidence of the daughter, which the Tribunal found to be honest, was that having temporarily swapped accommodation with her grandmother, she returned to live in her mother’s home in about October 2017 and continued living there until about October 2018 when she moved out with her partner.

32. The Tribunal is satisfied that the daughter continued to be 100% in the care of her mother and 0% in the care of her father throughout the period she was living at her aunt’s house.

33. For these reasons the Tribunal finds that there is no event that changes the pattern of care to cause revocation of the determination that was in existence.

    Do special circumstances exist?

34. The care determination, which the Tribunal has now determined is incorrect, was made on 14 December 2017 and the notice of the determination was sent to the mother and father on that date.[28]

    [28] T14, page 62.

35. Section 160 of the Evidence Act 1995 (Cth) provides that a postal article sent by prepaid post addressed to a person at a specified address in Australia was received at that address on the seventh working day after having been posted.

36. Section 163 of the Evidence Act 1995 (Cth) states that such a letter from a Commonwealth agency is presumed to have been sent by prepaid post on the fifth business day after the date that the letter was purportedly prepared.

37. Section 87AA(1) of the Collection Act provides that if a person lodges an objection to a care percentage decision more than 28 days after notice of the care percentage decision was served, any change to the care percentage decision will be given effect from the date the person lodged their objection.

38. It is accepted by the parties, and the Tribunal is satisfied, that the service is deemed to have occurred no later than 8 January 2018 which means that the date by which an objection needed to be filed was 28 days later on 5 February 2018. The mother did not lodge her objection to the care determination until 19 February 2019.[29]

    [29] T20, pages 77-78.

39. The care percentage objection decision may have effect from an earlier day if the Registrar is satisfied that there are special circumstances that prevented the person from lodging their objection within the required timeframe (section 87AA(2)). This is a two-step process in which the Registrar must first be satisfied that special circumstances exist, and then be satisfied that those special circumstances prevented the person from lodging their objection within the desired timeframe. If both criteria are met, the Registrar then has discretion as to whether to extend the period in which to lodge the objection, for the objection decision to have effect from the earlier date.

40. The Guide informs the considerations of special circumstances at 4.1.8: 

    In considering special circumstances the Registrar will look at the particular circumstances of the applicant. The applicant must show that their particular circumstances prevented them from lodging an objection within the required timeframe. They must explain why there was a delay in lodging the objection and that the circumstances are sufficiently special for the applicant to receive the benefit of an extension to the period in which to lodge an objection, in order for the objection decision to have effect from an earlier date.

41. Some examples of special circumstances may include:

    ·     the parent was seriously ill or had an accident that stopped them from lodging an objection

    ·     the parent suffered a personal trauma such as a death in the family or a natural disaster that caused damage to the parent’s property

    ·     the parent had communication difficulties, including isolation, illiteracy or poor English-language skills

    ·     the parent reasonably relied upon inaccurate or misleading information.

42. The mother contends that during the relevant period, between 5 February 2018 and 19 February 2019, special circumstances in the form of serious physical and mental health conditions prevented her from lodging the objection.

    The mother’s evidence – special circumstances

43. The mother told the Tribunal that she had not realised that her payments had changed due to a care determination, thinking changes were as a result of the daughter finishing year 12. She said she would have objected earlier had she realised the decision had been made. Her physical and mental health condition made it very difficult to deal with everyday life during 2017 through to 2019. She was being treated by a psychiatrist and a psychologist during the relevant period. Her financial situation meant that she was not always able to access the internet or use her phone because during 2017 and 2018 as her service was regularly cut off due to her being behind with her bills. During these times, she could not access the Agency’s online services and it was put to the Tribunal that there is a notable gap in contact between the mother and the Agency from the end of 2017 through to February 2019.

44. The mother accepted that the Agency probably sent her the letter of advice dated 14 December 2017[30] but she told the Tribunal she probably had not read it as she was not opening or reading much of the mail she received due to her mental health problems.

    The daughter’s evidence – special circumstances

    [30] T14, pages 62-63.

45. The daughter told the Tribunal that she would usually bring the mail in from the letterbox and set it out on the table. She said her mother would not deal with the mail and provided an example of being pulled over because her car registration had not been paid. Her mother was worse in 2017 through 2018, leaving mail in unopened piles on the kitchen table. The daughter would sometimes draw her mother’s attention to mail that was urgent. A lot of things were missed and got lost in the mess of the house, so it was a regular occurrence for her mother not to see or receive mail. The daughter said that at that time her mother struggled with daily tasks, had trouble with personal hygiene and stayed in bed a lot because she was unable to cope.

    The son’s evidence – special circumstances

1. The son told the Tribunal that he knew his mother suffered from mental health issues which he believed impacted her ability to work. He said she also had difficulty with mobility and anything physical. He said his mother wasn’t organised, she missed things and lacked motivation. She regularly forgot to attend to bills.

   Dr Tyllis’ Report

2. A report dated 3 May 2021 from Dr Panayiotis Tyllis, the mother’s treating psychiatrist since June 2017, corroborates that the mother had a severe mental health condition and that the condition had a debilitating impact on some of her functioning throughout the relevant period stating:

   It is my opinion that between late 2017 and early 2019 [the mother] experienced severe symptoms of Major Depressive Disorder… These symptoms would have exerted a pervasive impact on [the mother’s] functioning including her ability to deal with her finances, her ability to work, her ability to deal with external agencies and her ability to maintain her home. The pervasive impact of [the mother’s] symptoms on her function were evident in my support for [the mother’s] application for the Disability Support Pension at the time. [The mother’s] functional disability related to her depressive symptoms was further added to by her comorbid back and knee pain and onset of Type 2 Diabetes.[31]

   Ms Black’s Report

   [31] Exhibit A8.

3. A report dated 14 June 2021 from Ms Carol Black, the mother’s treating clinical psychologist since referral on 30 January 2019, corroborates the mother’s diagnosis of Major Depressive Disorder (recurrent), severe based on the DSM5 diagnostic criteria. In describing the impact of the condition on the mother’s functioning Ms Black offers:

   [The mother] experiences significant impact in all areas of functioning during depressive episodes (occupational, academic, social, interpersonal). She presents with significant impairment in executive functioning (working and short-term memory, organisational and planning abilities, decision-making, attention and concentration) and is unable to manage daily activities including home management, self-care, attend appointments at times, open mail and pay bills. During treatment it is evident she forgets to complete reading and assigned tasks and requires repetition of information and instructions.[32]

   Dr Turner’s Report

   [32] Exhibit A10.

4. The mother’s GP of about 20 years also confirms the mother’s longstanding depression as well as health issues in a report dated 15 June 2021. Dr Turner relevantly makes the following observations in relation to the mother’s functioning:

   She has always been keen to work, including part time … but of recent times has been unable to secure a position…

   I consider she is capable to deal with Centrelink and the Child Support Agency…

   I do not think [the mother] has ever had good control of her finances in the time | have known her, despite good family support, financial support from her ex-partner, psychological support, and agency support, such as Hutt Street Centre.

   Given her inability to follow through with her appointments with our clinic (despite reminders) I think it likely her dealing with correspondence is similarly unreliable.[33]

   Was the mother seriously ill and did that stop her from lodging an objection?

   [33] A11

5. The evidence of the treating psychiatrist, treating clinical psychologist, and the long term treating general practitioner are all in accord that the mother was suffering from depression with the psychiatrist and psychologist describing it as a severe Major Depressive Disorder. The functional impact of this condition on the mother as described by both the psychiatrist and the clinical psychologist corroborates the assertions of the mother and daughter that the mother was unable during the relevant period to deal with correspondence and communication in a way that would have prevented her from lodging an objection or knowing that she needed to do that. While her general practitioner says that she was capable of dealing with Centrelink, she also describes the mother’s functionality in a way that aligns with the opinions of the psychiatrist and psychologist.

6. Based on the descriptions of the mother’s functionality by the mother, the daughter, the son, the psychiatrist and the clinical psychologist I am satisfied that the mother was seriously ill with Major Depressive Disorder which caused such disfunction that she was stopped from lodging an objection in the relevant period.

7. If the Registrar is satisfied that special circumstances exist, the Registrar will then consider whether it is appropriate to exercise the discretion to extend the period in which to lodge the objection (section 87AA(2)). The Registrar will consider if:

   ·the decision to extend the period in which to lodge the objection will prejudice the other parent. For example, will the extension that results in an earlier date of effect for the objection decision create a significant overpayment or significant arrears of child support?

   ·the applicant rested on their rights. For example, did the applicant make any efforts to lodge the objection earlier, communicate to OHS that the decision was being contested or raised their concerns in other ways – for example, a complaint to OHS or the Ombudsman?

8. The father made a formal care change application on 11 September 2017 using an ‘Ending a child support assessment’ form. In answer to question 13, “[o]n what date do you want the assessment to end?” the father provided the date 12 September 2017[34], about five months short of the daughter’s 18^th birthday. The Tribunal also notes that the mother is seeking an outcome that the mother’s child support percentage of care was 100% and the father’s child support percentage of care was 0% during the period 29 January 2016 to 30 November 2017.   

   [34] T5, page 47.

9. The Tribunal notes that the father expressed that his concern has been that the daughter received funding for the care provided. In a file note by the Agency dated 15 December 2017, when the Agency called the father to inform him of the care decision, the father requested that overpayment be followed up because ‘[the father] would like this collected so that he can provide it to the Aunty looking after the child’.[35]

   [35] T17, page 72.

10. For these reasons, the Tribunal is satisfied that a decision to extend the period in which to lodge the objection will not prejudice the father.

11. The next question for the Tribunal is whether the mother rested on her rights.

12. An Agency file note dated 5 October 2017 notes that the mother called the Agency and explained that the daughter was still in her care. The file note also indicates that the mother was to provide evidence that she was continuing to care for the daughter. This was the last file note indicating communication between the mother and the Agency until 1 February 2019.

13. The medical reports of Dr Tyllis from 15 June 2017 onwards and in particular his summary for the purpose of the Tribunal dated 3 May 2021, describe the pervasive impact of the severe Major Depressive Disorder on the mother’s functioning including her ability to deal with external agencies. [36] The Tribunal is satisfied that the mother was, during the relevant period, incapable of managing her own affairs, including identifying or understanding the Agency’s decision, or of taking action required to lodge an objection to the decision.

    [36]Exhibit A8.

14. For this reason, the Tribunal is satisfied that the mother did not rest on her rights and the Tribunal extends the period in which to lodge the objection.

CONCLUSION

1. The Tribunal is satisfied that the daughter did not leave the mother’s house or her care and the daughter continued to be 100% in the care of her mother and 0% in the care of her father from 29 January 2016.

2. The Tribunal is also satisfied that when the daughter did leave the mother’s house to temporarily live with her aunt from 29 January 2017 until the father lodged a formal care change application on 11 September 2017.

3. For these reasons, the Tribunal finds that there is no event that changes the existing pattern of care to cause revocation of the determination that was in existence.

4. For this reason, the Tribunal is satisfied that there is no requirement under s54F, and no reason to invoke the discretion under s54H of the Assessment Act to revoke the existing care determination.

5. There is no dispute and the Tribunal finds that the mother lodged an objection to a care percentage decision more than 28 days after notice of the care percentage decision was served. Under s87AA(1) of the Collection Act, if a person lodges an objection to a care percentage decision more than 28 days after notice of the care percentage decision was served, any change to the care percentage decision will be given effect from the date the person lodged their objection unless the Registrar is satisfied that there are special circumstances that prevented the person from lodging their objection within the required timeframe (section 87AA(2)). In this matter the Tribunal is satisfied that the mother’s serious mental health condition represents special circumstances that prevented her from lodging her objection.

6. The Tribunal is satisfied that a decision to extend the period in which to lodge the objection will not prejudice the father and nor did the mother rest on her rights (section 87AA(2)).

DECISION

1. The Tribunal sets aside the decision under review and in substitution decides that there is no requirement under s54F, and no reason to invoke the discretion under s54H of the Assessment Act to revoke the existing care determination that: CJJQ’s child support percentage of care is 100% and PRSS’s child support percentage of care is 0%; with effect from 29 January 2016 due to the operation of subsection 87AA(2) of the Collection Act.

I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for the decision herein of Member G Hallwood  

..............[SGND]...................

Dated: 3 September 2021

Date of hearing:

31 March 2021 and 9 August 2021 

Counsel for the Applicant:

Michelle Barnes, Len King Chambers

Counsel for the Respondent:

Other Party:

Mills Oakley Lawyers

Self-Represented