CJWN and Child Support Registrar (Child support second review)
[2022] AATA 830
•22 April 2022
CJWN and Child Support Registrar (Child support second review) [2022] AATA 830 (22 April 2022)
AppID:CJWN and Child Support Registrar
MatterType: Child support second review
Division:General Division
File Number(s): 2020/6100
Re:CJWN
APPLICANT
AndChild Support Registrar
RESPONDENT
DECISION
Tribunal:Member P Ranson
Date:22 April 2022
Place:Brisbane
The Tribunal sets aside the decision dated 21 August 2020 of the Social Security and Child Support Division and in substitution finds an interim care period applies from 21 July 2018 to 14 May 2019. That means the care percentages during the interim care period are 28% to the Mother and 72% to the Father and thereafter in accordance with the actual care of the Daughter.
........................[SGD]........................
Member P Ranson
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 – objection to care percentage change – special circumstances – interim care determination – extension of time to object – extension of time to apply for external review – Federal Court parenting orders – reasonable action – mental illness – familial illness – 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)
Cases
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
FCT v Cassaniti [2018] FCAFC 212Imperial Bottleshops Pty Ltd v Commissioner of Taxation (1991) 22 ATR 148
Secondary Materials
Guides to Social Policy Law, Child Support Guide, Version 4.57, released 1 July 2021
REASONS FOR DECISION
Member P Ranson
22 April 2022
BACKGROUND
CJWN is the mother of a daughter born in 2007 (the Daughter). The child support case for the Daughter began in 2015 and recorded care as 28% to the Mother, and 72% to the Father who is not a party to in this case. This care arrangement was confirmed by the court in 2018.
On 24 July 2018, CJWN (the Mother) travelled to Jakarta, Indonesia to spend time with her elderly father who was terminally ill and later died. The Mother returned to Australia on 7 August 2018 after which she says the Father withheld care of the Daughter. On 26 October 2018, the Father advised Services Australia he had full-time care of the Daughter from 21 July 2018 and the Registrar subsequently decided to change the care to 100% to the Father (from 26 October 2018) and 0% to the Mother (from 21 July 2018).
The Mother objected to this decision, albeit there was some controversy about its lodgement, which caused the second written objection to be deemed received late due to a delay in obtaining legal advice. The delay was caused by Christmas closure of her advising solicitors. In the exchanges provided by both parents about the objection, the Father claimed he was not withholding care of the Daughter and the Mother asserted he was. The objection was disallowed.
The Mother complained to the Agency about the decision and later applied to the SSCSD of this Tribunal for a review of it, sighting her ongoing mental health issues, the death of her father and English being her second language as the reasons for the delay in lodging the objection. On the basis she had sought legal advice and mediation from a Family Relationship Centre, the Mother contended she had taken reasonable action to enforce the care orders. This Tribunal on first review affirmed the decision of the Registrar to disallow the objection.
Apart from the ill health and subsequent death of her father in 2018, her mother was also seriously ill and died of COVID-19 in 2021, and she also had to contend with her own mental health issues. Nonetheless, the Mother was dissatisfied with the decision on first review and applied to the GD of this Tribunal for a second review. Unfortunately, she applied very late. The Father was invited to be a party to the first review and did not respond. He was also invited to be a party to the second review and did not respond.
For the reasons that follow, the decision should be set aside as the Mother took reasonable action to enforce the care orders and special circumstances prevented her from seeking review within the legislated time frames.
PROCEDURAL HISTORY
The parties in this case are:
Applicant
CJWN (the Mother)
Respondent
Child Support Registrar (the Registrar)
The Tribunal advised the Respondent by e-mail on 26 February 2021 the Father had been invited on 7 January 2021 to be joined as a party in this case and failed to respond. Accordingly, the Father is not a party in this case.
A care determination for the Daughter commenced on 17 February 2015 and was confirmed by the Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia) (FCCA) on 16 May 2018 (the FCCA Orders). That care determination was 28% to the Mother and 72% to the Father (the Original Care Decision).
On 26 November 2018, an authorised officer of the Registrar found the Father had 100% care and the Mother had 0% care of the Daughter from 21 July 2018 with effect for the Father from 26 October 2018 being the date he notified the change of care (the 2018 Care Decision). The Mother knew of the 2018 Care Decision because of a phone call with the Agency on 26 November 2018.[1] The decision was issued on 6 December 2018.[2] That meant an objection to that decision by the Mother should have been lodged by 3 January 2019.
[1] Exhibit 1, T Documents, T25, page 172-173.
[2] Exhibit 1, T Documents, T5.
In any event, the file notes from the Agency reveal in a conversation with the Mother on 1 December 2018, she advised on 21 November 2018 she had lodged an objection using the Agency’s online service. A client service officer for the Agency appears to state to the Mother the change of care request (lodged 21 November 2018) would be an objection to the care decision and the Mother asked if it had been received. It may be the document she lodged was a request for change of care (back to 72/28 as per the FCCA Orders) however, at that time the Agency had not received it and there is no evidence they ever did.
The Mother officially objected to the Original Care Decision on 11 January 2019 acknowledging it was out of time and claiming special circumstances as her solicitors were unavailable due to Christmas closures and an office relocation. Both parents provided submissions about the objection. The Father refuted the claim he was preventing the Daughter from seeing the Mother rather claiming the Daughter refused to visit the Mother. On 20 May 2019, an objections officer disallowed the objection and affirmed the decision which meant no decision was made about late lodgement.[3]
[3] Exhibit 1, T Documents, T16.
Dissatisfied with the objection officer’s decision, on 18 April 2020 the Mother lodged a complaint against the objection decision and later, on 30 June 2020, applied to the SSCSD for a review. Given the date of the objection decision, the application for first review was made over one year late (379 days). The Mother said special circumstances prevented her from applying within 28 days, being her own mental health issues, her father’s illness and death in 2018, her mother’s illness in 2019, and English was not her first language. She was seeking an interim care determination because of the action she had taken to enforce the Original Care Decision.
The decision under review was made by the Social Services and Child Support Division (SSCSD) of this Tribunal on 21 August 2020 which affirmed the decision of the objections officer and in so doing, was not required to deal with the late lodgement of the application (AAT1).[4]
[4] Exhibit 1, T Documents, T2.
Dissatisfied with the AAT1 decision, the Mother applied to the GD for a second review. The Hearing for this current application was held on 21 February 2022 (the Hearing). The Mother attended the Hearing, together with Mr Samuel Harvey (Mr Harvey) representing the Registrar. The video hearing was facilitated using Microsoft Teams and the Mother gave affirmed evidence. No witnesses were called.
The Registrar identified the issues to be decided, which are summarised as follows:
(a)Should the existing determination of percentage of care be revoked;
(b)What percentage of care did the Applicant and the Other Party each have of the Daughter;
(c)The date of effect for the purposes of the child support assessment;
(d)Should an interim care decision apply; and
(e)Were there special circumstances which prevented the Mother from objecting and applying for a review in time.
The parties agree the actual care of the Daughter changed to 100% to the Father on 21 July 2018. The Father says the care was 100% to him from that date and the Mother says she took reasonable action to enforce the FCCA Orders and there were special circumstances which prevented her from applying in time twice. The longest period for which a care percentage of an interim care determination can apply is 21 July 2018 to 14 May 2019, being 52 weeks from the date of the FCCA orders.
Prior to the Hearing, all parties were provided with an Exhibit List showing Exhibits 1 to 4. Exhibit 5, which has five parts, was received after the Hearing at the request of the Tribunal. Copies of each were sent to the other parties in each case. The following documents were admitted into evidence:
Number
Description
Exhibit 1
T Documents
Exhibit 2
Supplementary T Documents
Exhibit 3
Registrar’s Statement of Facts, Issues, and Contentions dated 22 December 2021.
Exhibit 4
Letter dated 2 December 2020 from Dr Purcell regarding anaesthetic reaction after surgery.
Exhibit 5
Applicant’s post-hearing submission received 27 March 2022.
The Tribunal has considered all the material supplied to it and the oral evidence of the Mother at the Hearing. Not all the evidence is referred to at length in this decision record. That does not mean it has not been considered in determining the outcome. It is sometimes unnecessary to canvass all aspects, arguments, and history of a case in the decision record.
THE LAW
The Registrar’s Statement of Facts, Issues, and Contentions dated 22 December 2021 (SFIC) sets out in detail the law which is relevant to this case with which the Tribunal concurs. As a copy of the SFIC and its attachments were provided to the Mother, prior to the Hearing, that law will not be reproduced in this decision other than to confirm the relevant legislation is contained in:
(a)Child Support (Assessment) Act 1989 (Cth) (the Assessment Act).
(b)Child Support (Registration and Collection) Act 1988 (Cth) (the Registration Act)
(c)Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act)
The Registrar’s SFIC also refers to the Child Support Guide (the Guide) and especially Chapter 2.2.[5] The Tribunal notes where a general policy exists to guide the decision maker in exercising its powers, the Tribunal “will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision … cogent reasons will have to be shown against its application”.[6] The Tribunal considers there are no pressing reasons to depart from the policy outlined in the Guide.
[5] See Guides to Social Policy Law, Child Support Guide, Version 4.57, released 1 July 2021
[6] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645 (Brennan J).
To the extent the Tribunal has considered policy in this case, it has not applied it inflexibly and has only considered it to the extent the Guide is consistent with the requirements as set out in the legislation as it would be an error of law for the Tribunal to state it must (emphasis added) follow what policy says concerning the scope or meaning of a provision in the Act or Regulations.
Section 51 of the Assessment Act is enlivened if the Registrar is required by section 49 or 50 to determine a responsible person’s percentage of care for a child during a care period. If a care arrangement applies in relation to the child and the Registrar is satisfied the actual care of the child the responsible person has had, or is likely to have, during the care period does not comply with the extent of care of the child the person should have had, or is to have, under the care arrangement during that period (which may be nil), and a person who has reduced care of the child is taking reasonable action to ensure that the care arrangement is complied with, an interim care determination can be made.
In this case, the care arrangement for the Daughter is the FCCA Orders, which commenced on 16 May 2018, see [9], and so the maximum period for an interim care decision is 52 weeks starting on the day the court order first takes effect, that is, to 14 May 2019.
Sections 54F, 54G and 54H of the Assessment Act deal with whether an existing care percentage must or may be revoked. Relevantly, the Registrar must revoke an existing care determination pursuant to s54F where a new care percentage determination made under s49 or s50 would change the cost percentage for the child and s54G does not apply. Alternatively, the Registrar must revoke an existing care determination pursuant to s54G, where, under a new care percentage determination, one of the parents who was previously assessed to have at least regular care of the child would now be determined to have less than regular care despite the child being made available by the other parent and that other parent notified the Registrar of the care change within a reasonable timeframe from becoming aware of the change in care. The Registrar may revoke the existing care determination pursuant to s54H, where a new care percentage determination, if it was to be made, would change the cost percentage and s54F and s54G do not apply.
There are two decisions to be made in this case for which the Tribunal turns to the Guide:
(a)whether reasonable action was taken by the Mother to ensure the Original Care Decision is complied with; and
(b)whether special circumstances prevented the Mother from objecting to the care decision of 6 December 2018 and applying for the first review.
The Guide at section 2.2.4 provides some assistance in considering whether reasonable action was taken by a party with reduced care to enforce the care arrangements prior to the change. It states the person with reduced care must take reasonable action to ensure compliance with the care arrangement throughout the interim period to have the child support assessment continue to be based on the care arrangement for the interim period, in line with the Assessment Act. If the person with reduced care ceases taking reasonable action, the interim period will end on the day the reasonable action ceased. Reasonable action could include:
·negotiating with the other party in a genuine attempt to ensure compliance with the care arrangement
·making and/or attending an appointment at a Family Relationship Centre (FRC) or other dispute resolution service with the aim of ensuring the care arrangement is adhered to
·seeking or obtaining legal advice regarding the making of a court order
·filing an application to a court to have an order made or enforced
·attending a hearing at court to seek an order to be made or enforced, or
·notifying the police that the child has been taken without consent.
The above list is not exhaustive, nor prescriptive, and other forms of action may be considered reasonable, according to the circumstances of both parties and the child. The Registrar may seek evidence that reasonable action has been taken. Evidence may include:
· a written account of the steps the parent has taken to negotiate with the other parent, verified by an independent third party such as a legal representative documentation from an FRC or
· dispute resolution service setting out the details of an upcoming appointment and the action sought, or
· documentation of police or court action.
Where the parent with reduced care has not taken reasonable action to have the care arrangement complied with, and their percentage of care has been determined according to the actual care they have of the child (i.e., an interim determination was not made), and the parent subsequently takes reasonable action for the care arrangement to be complied with, an interim period will not apply. This is because once a determination of actual care has been made, it cannot be revoked and replaced with a new care percentage unless there has been a change to the actual care of the child (CSA Act section 54F).
The Guide at section 4.1.8 provides some assistance in considering whether special circumstances existed to cause a party to object to a decision or apply for a review of a decision. It suggests the Registrar look at the circumstances of the applicant who must show their circumstances prevented them from lodging an objection within the required timeframe. The applicant must explain why there was a delay in lodging the objection and their circumstances are sufficiently special for them to receive the benefit of an extension to the period in which to lodge an objection, for the objection decision to have effect from an earlier date. 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.
The AAT1 decision is a decision under s 43(1)(a) of the AAT Act and is reviewable by this Tribunal by operation of s 96A(b) of the Registration Act.
THE FACTS AND EVIDENCE
Oral evidence
The Tribunal approaches oral evidence understanding the following principles apply:
(a)Facts may be found based on oral evidence alone. There is no barrier to a fact being found on the uncorroborated evidence of a party to proceedings. There is no requirement that direct evidence by oral testimony or affidavit may only be accepted if corroborated. However, self-serving statements should be given close scrutiny.
(b)Evidence of a party is not to be regarded as prima facie unacceptable. While it will often be prudent to put forward corroborating evidence, parties are not obliged to call all material witnesses or produce all material documents.[7]
[7] For this and the preceding proposition, see, for example: Imperial Bottleshops Pty Ltd v Commissioner of Taxation (1991) 22 ATR 148, 155; and FCT v Cassaniti [2018] FCAFC 212.
The oral evidence of the Mother concerning her mental health is corroborated by external evidence. To the extent the Mother makes assertions about the actions of the Father in contributing to her mental health issues, his decision to not be a party to the proceedings means the Tribunal may accept those assertions as fact, subject to consideration of his written submission at T13[8].
[8] Exhibit 1, T Documents.
Registration of the child support case
On 17 February 2015 the Registrar first recorded a child support case for the Daughter with the Father having 72% care and the Mother having 28% care (the Care Orders). Consent Orders by the FCCA confirm this arrangement.[9]
[9] Exhibit 1, T Documents, T4.
FCCA Orders dated 16 May 2018
The FCCA Orders state at paragraph 4:
‘That except as otherwise stated, the parents are to have equal shared parental responsibility for the major long-term issues of the child.’
Further, paragraph 8 states:
‘That during the time the child is with either parent, that parent shall:
a. Respect the privacy of the other parent and not question the child about the personal life of the other parent;
b. Speak of the other parent respectfully, and
c. Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.’
Then, at paragraph 9:
‘That the child shall live with the mother at all times as may be agreed between the parties but failing agreement as follows:
a. During the school term, each alternate week from 5.30pm Friday to 5.30pm Sunday;
b. That on no more than one occasion each calendar month, with no less than two days' notice to the father and coinciding with a weekend the child would be spending time with the mother, the mother be at liberty to collect the child directly from school after school has finished on the Friday; and
c. This Order shall be suspended for the weekends during any school holiday period.’
Otherwise, the Daughter shall live with the Father during school terms in accordance with paragraph 10. It is incumbent on both parents to fully comply with the FCCA Orders.
What happened?
To better understand the sequence of events relevant to this case, the Tribunal has prepared a timeline which is set out in Appendix A.
At the Hearing, the Mother explained she travelled to Indonesia on 24 July 2018 to visit her father who was terminally ill and who subsequently died. She returned to Australia on 7 August 2018. The Mother expected to resume regular care on her return however the Father claimed the Daughter refused to spend time with her. He claimed in his written submission the relationship between the Daughter and the Mother was fraught with difficulty and the Mother prevented the daughter from contacting the Father.[10]
[10] Exhibit 1, T Documents, T13
The Mother returned to Indonesia on 27 September 2018 to attend her father’s funeral. She returned to Australia on 16 October 2018 and expected care of the Daughter to resume as per the FCCA Orders. Care again did not resume as the Father advised the Mother the Daughter did not want to spend time with her. The Mother says in her written evidence ‘I constantly informed my solicitors that [the Father] was not complying with the Court order.’[11]
[11] Exhibit 1, T Documents, T10, page 49.
The Father says the situation deteriorated to the point where the Daughter refused to go to school or into the care of the Mother. He says the Mother threatened police action and so, on 17 August 2018, he forced the Daughter to meet with her Mother and provided an account of an exchange through the window of a car and the Mother driving off before an explanation could be provided. Extracts of text messages were provided in support of this contention. The Daughter was age 11 when this occurred.
The Father says he has tried to repair what he describes as the damaged relationship between the Mother and the Daughter, including counselling, to no avail. He says the Mother refuses to cooperate. The Mother disputes the Father’s assertions about these events and provided evidence in support of her position.[12] Given the age of the Daughter at the time, the Tribunal considers it was not up to her to make the decision about her care. It was for her parents to make those decisions in compliance with the FCCA Orders.
[12] Exhibit 1, T Documents,T15.
Revoking the existing care determination
Section 51 of the Assessment Act applies if, among other things, the Registrar (or in this case the Tribunal) is required by section 49 or 50 of the Assessment Act to determine the responsible person’s percentage of care for a child (paragraph 51(1)(a)). Sections 49 and 50 require the determination of a responsible person’s percentage of care in essentially two situations:
(a)An application is made under section 25 or 25A of the Assessment Act for a parent to be assessed in respect of the costs of the child pursuant to 49(1)(a)(i) and 50(1)(a)(i); or
(b)The determination of a responsible person’s percentage of care for a child that was made under section 49 or 50 is revoked or suspended pursuant to 49(1)(b)(i) and 50(1)(b)(i).
Neither 49(1)(a)(i) or 50(1)(a)(i) apply in this case because there was no application for a child support assessment.[13] Therefore, there is only a requirement to determine a responsible person’s percentage of care if a previous determination is revoked or suspended. The threshold question, before any further care determination can be made, is whether the existing care determination is revoked. A care determination can only be revoked under one of sections 54F, 54G and 54H of the Assessment Act.
[13] See sections 25 and 25A of the Assessment Act.
54F and 54H can only apply if 54G does not. In this case 54G won’t apply because there is no suggestion that the Father was making the child available.
The Tribunal has determined there was a change in the actual care of the Daughter. Prior to 21 July 2018, the percentages of care for the Daughter were 72% to the Father and 28% to the Mother in accordance with the FCCA Orders. The parties agree the actual care of the Daughter was 100% to the Father and 0% to the Mother from 21 July 2018, which means the cost percentages for the Father change from 76% to 100%, and the Mother’s from 24% to nil.
In relation to the existing care determination (emphasis added), subsection 54F(2) applies because section 51 did not apply and all of the conditions in subsection 54F(1) are met. Accordingly, the existing determinations must be revoked.
Subsection 54F(3) then sets out the dates of revocation for the care determination for each parent. However, those dates of revocation will only have a practical effect if section 51 does not apply.
In summary:
(a)the previous care determination must be revoked pursuant to subsection 54F(1).
(b)As the previous determinations are revoked, sections 49 and 50 require there must be a new care percentage determination for each parent.
(c)As there is a requirement under sections 49 and 50 to determine a percentage of care in relation to each parent, the condition in paragraph 51(1)(a) is met.
Did the Mother take reasonable action?
On 13 July 2018, the Mother sent an e-mail to the Father threatening to notify the police that the child has been taken without consent if the care orders are not complied with. The Father was due to depart Australia shortly thereafter. As this predates 21 July 2018 it is not relevant to this decision.
Both parents provided copies of various e-mail exchanges during the period after 21 July 2018, including those of 24 August 2018 from the Father and on 27 August 2018 from the Mother in reply, between themselves about the care of the Daughter. Each parent claimed the other was at fault for the Daughter not wanting to visit the Mother. There is a further exchange on 25 October 2018 concerning the care of the Daughter over the forthcoming Christmas holidays.
Given the apparent toxic nature of the relationship between the parents it is difficult to envisage them negotiating with each other in a genuine attempt to ensure compliance with the care arrangement. Nonetheless there was an exchange which seems to have been an attempt to do just that.
On 17 September 2018, the Mother attended Ferguson Legal seeking legal advice about the non-compliance with the FCCA Orders. On 9 January 2019, Ferguson Legal provided advice to the Mother not to use the FCCA Orders to force the Daughter to spend time with her. They also advise her there is no basis for a recovery order to succeed given the time between the FCCA Orders (16 May 2018) and the change of care (21 July 2018). There is no evidence an application to a court to have an order made or enforced was filed and neither party attended a hearing at court to seek an order to be made or enforced.
On or about 13 April 2019, a ‘meet up’ with the parents is arranged by Interrelate Family Relationship Centre. It was unsuccessful, the parents agreed to proceed to mediation and a parenting plan emerged from that process.[14] The evidence of the Mother at the hearing is the process leading to the ‘meet up’ and mediation began in September 2018 and the Tribunal understands such a process can take a long time. Then, on 4 January 2019 there is an e-mail exchange between Family Relationship Centre, Gold Coast and the Mother in which a copy of the FCCA Orders was requested.
[14] Exhibit 5d.
Given the events described above, the Tribunal finds the various actions by the Mother after 21 July 2018 and continuing into 2019 amount to reasonable action to enforce the FCCA Care Orders. It follows an interim care period applies from 21 July 2018 to 14 May 2019, being 52 weeks from the first day of the FCCA Orders, and the Tribunal must make two care percentage decisions pursuant to s51 of the Assessment Act. The first care percentages (pursuant to subsection 51(3)) are 72% for the Father and 28% for the Mother in accordance with the FCCA Orders, and the second care percentages (pursuant to subsection 51(4)) are 100% to the Father and 0% to the Mother
The Tribunal has found an interim care period applies from 21 July 2018 under s51 of the Assessment Act. The Tribunal, standing in the shoes of the Registrar, must or may revoke an existing care determination pursuant to s54F, s54G or s54H where a new care percentage determination is made under s49 or s50 and which would change the cost percentage for the child.
The effect of an interim care determination under s51 is not to make a new care percentage determination rather to suspend the existing determination, as per the FCCA Orders, until the end of the interim care period, in this case, 14 May 2018. Accordingly, no determination is required under either of s54F, s54G or s54H.
The issue of special circumstances is discussed below.
Did special circumstances exist?
It follows that the Tribunal must consider if special circumstances existed on two occasions, which prevented the Mother from objecting or applying for a review in time. They are:
(a)When she objected to the Registrar’s decision to change the care to 100% to the Father from 21 July 2018 with effect from 26 October 2018; and
(b)When she applied to the AAT1 for a review of the objection decision.
In relation to the objection (section 87AA(2) of the Collection Act)
According to the SFIC, the care decision which set the care of the Daughter to 100% to the Father from 21 July 2018 was made on 26 November 2018 and advised to the parents by letter dated 6 December 2018. On that basis, the 28-day time limit to object to the decision expired on 3 January 2019. However, it is also the case the Agency called the Mother on 1 December 2018 to discuss her online application lodged on 21 November 2018, which the mother confirmed was a request to change the care. In that conversation, the Mother claimed she had already lodged, by e-mail, a written objection to the care decision, and she was told it had not been received.[15]
[15] Exhibit 1, T Documents, T25, p174.
On 24 December 2018 the Mother contacted the Agency and enquired about objecting to the care decision, which is strange if she had already lodged a written objection. She was advised of the required timeframe. The Mother’s objection was lodged on 11 January 2019, that is, eight days late.
The Mother contacted Ferguson Legal on 24 December 2018 who replied on 9 January 2019 advising their office closed on 21 December 2018 and would not reopen until 7 January 2019. On 2 January 2019, Ms Emma Gallagher of Beek & Gallagher Legal sent an e-mail to the Mother forwarding an e-mail from her to the Father in 2018 concerning her travel to Indonesia. The e-mail from Ms Gallagher noted the firm had closed for the Christmas holidays and was relocating. It would reopen on 16 January 2019. In both cases, the solicitors contacted by the Mother were closed until after the due date for lodging the objection.
The Mother sights language difficulties in managing her affairs as English is not her first language. However, the report dated 25 August 2020 by Doctors at Southport Park notes the language spoken at home is English and the Mother speaks it ‘very well’.[16] Also, the Mother has completed a Master of Social Work from Griffith University, presumably in English. Accordingly, the Tribunal places little weight on the Mother’s claim to language difficulties in managing her affairs.
[16] Exhibit 5f, p1.
However, given the Mother is not legally trained and was under severe stress, it is reasonable for her to seek advice before lodging her objection. Unable to obtain that advice by 3 January 2019 through no fault of her own and not for the want of trying, the Mother nonetheless lodged her objection on 11 January 2019.
The Tribunal considers it appropriate to exercise its discretion under section 87AA(2) of the Collection Act to extend the period in which to lodge the objection to the care decision dated 6 December 2018 because it is satisfied special circumstances prevented the Mother from lodging the application for review within that period and there is no evidence before the Tribunal to indicate such an extension will create a significant overpayment or significant arrears of child support.
In relation to applying to the AAT1 (Section 95N(2) of the Collection Act)
The Mother was asked at the Hearing to explain why she took so long to apply to the Tribunal for a first review. She sighted her mental illness as a significant cause for the delay coupled with the death of her father and her mother becoming seriously ill. She stated:
‘I was basically really stuck and in survival mode. So I don’t know if this answer going to have any effect or anything, but the reason why it took – it took that long is, because it took that long for me to regain my – my capacity to be back to do – to fix what I can fix. I know. I know it was late, but I decided to give it a try anyway, because – because I want to give it a try and I want to – I want – I want – I’m seeking justice, because I did not have a care time for my child, because I wanted it, but it’s because the situation, and the situation that’s really out of my – my hand and my capacity. That’s why it takes that long.’
According to an Australian Government health website, mental illness can happen due to a mix of factors including genetics, how your brain works, how you grew up, your environment, your social group, your culture and life experience. Factors such as trauma and stress in adulthood, traumatic life events or ongoing stress such as social isolation, domestic violence, relationship breakdown, financial or work problems can increase the risk of mental illness. Personality factors such as perfectionism or low self-esteem can increase the risk of depression or anxiety. [17]
[17]
The role of the Tribunal is to evaluate the evidence placed before it and apply the relevant law to that evidence. It is not to form opinions, such as medical opinions, it is not qualified to make, rather to rely on expert opinions of others.
Remembering oral evidence is prima facie to be accepted without corroboration unless it is self-serving, the evidence of the Mother is her mental illness prevented her from applying in time. She further stated at the Hearing:
I – I didn’t – I didn’t think that far, because after rejection and dispute, I – I cannot even – I didn’t even finish reading that, because it’s so – it’s really affect me so much. Like, I haven’t healed that much that time. And then, when I read that I felt that it was – I didn’t, I really didn’t have capacity to make a phone call. I mean, I didn’t even have capacity to read through the whole, let alone to make a phone call and dispute. My mental health was really still not recovered that time. And it’s stated clearly from the letter from – from the – from Belinda said, like, she – she knew how – my capacity.
The reference to ‘Belinda’ in the previous quote from the Mother is to Ms Belinda Seib, who is a clinical psychologist at Impact Health Pty Ltd at Southport in Queensland. Ms Seib wrote a letter dated 16 October 2019 addressed ‘To whom it may concern’ stating the Mother has been a client of Impact health since 2017 for management of stress arising from family conflict and limited access to the Daughter.[18] In paragraph 3 of her letter she states:
‘Currently [the Mother] reports Moderate levels of [various mental health conditions]. She attributes this to having had no contact with her daughter from mid 2018 and throughout 2019. During this time it is reported that [the Mother’s] X-husband, [the Father], has allegedly changed [the Daughter’s] mobile number, relocated her to a different school and has provided no updates regarding their daughter’s general wellbeing. This is all in contravention of standing court Parenting Orders.’
[18] Exhibit 5e.
Then in paragraph 4 she states:
‘[the Mother] is extremely worried about her daughter and is eager to be able to spend time with her as per the court orders. The current lack of communication between these family members is having a detrimental impact on [the Mother’s] wellbeing. She has found it extremely difficult to fully focus on her studies and work placement. In addition, some of the client’s circumstances she has encountered in her work placement have been similar to her current situation which has compounded the stress she has been experiencing and triggered significant anxiety for her.’
Dr Aung Thura of Doctors at Southport Park provided a copy of the ‘GP Mental Health Treatment Plan’ for the Mother. It is dated 25 August 2020.[19] This report confirms the diagnosis of a mental health condition (in remission) since 2018. This coupled with the report by Ms Seib discussed above, corroborates the oral evidence of the Applicant at the Hearing, that is, her mental state during the relevant period (2018 to 2020) created a situation for her that was exceptional and as such prevented her from applying for the first review within 28 days.
[19] Exhibit 5f.
Accordingly, the Tribunal finds the application for review lodged by the Mother on 30 June 2020 to be treated as having been lodged within the prescribed period as it is satisfied special circumstances prevented the Mother from lodging the application for review within that period.
CONCLUSION
It is clear to the Tribunal the Father withheld care of the Daughter after the Mother returned from Indonesia in August 2018, and thereafter on the basis he believed the Daughter refused to visit the Mother. The Tribunal does not doubt the Father did what he thought was best in the circumstances as he understood them.
Nonetheless, the FCCA Orders are clear and unambiguous, and it was incumbent on both parents to follow those orders especially as the daughter was age 11 at the time. She was not old enough to make decisions about who would care for her. The court had already done that, and it was for the parents to act in accordance with the orders in place.
The Mother tried to enforce the care orders to no avail. It seems she was blocked at every turn. She made several attempts to contact the Father by e-mail and given the toxic relationship between the parents, e-mail is probably the only reasonable means of doing so. She also initiated a meeting with the Father and subsequent mediation through a family relationship centre, and she sought legal advice.
Mental illness can be very debilitating and can prevent a sufferer from functioning much if at all whilst in its grip. The Mother has been so diagnosed. Coupled with the illnesses of her father and then her mother and the subsequent death of her father and the unavailability of her legal advisers during the period under review, these factors prevented her from first objecting to the care decision and then applying to this Tribunal for a first review.
The law provides for the situation the Mother found herself in by allowing a period where an interim care determination can apply to not allow a parent with increased care from benefiting financially from care withheld in circumstances where the other parent tried to enforce the care orders in place.
DECISION
The Tribunal sets aside the decision dated 21 August 2020 of the Social Security and Child Support Division and in substitution finds an interim care period applies from 21 July 2018 to 14 May 2019. That means the care percentages during the interim care period are 28% to the Mother and 72% to the Father and thereafter in accordance with the actual care of the Daughter.
81. I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Member P Ranson
…………………[SGD]………………..
Associate
Dated: 22 April 2022
Date of Hearing: 21 February 2022, final submissions received 27 March 2022
Applicant:
By Microsoft Teams Solicitor for the Respondent: Mr Chris Murphy Appendix A – Timeline
Date Event 16-05-2018 FCCA care orders. 11-07-2018 Mother sends agent (Henri) to collect the Daughter. Father refuses to release the Daughter to him. 13-07-2018 Mother threatens police action if care orders not complied with – Father going overseas (T15, p105). 14-07-2018 Daughter in care of the Mother until 22-07-2018 (T15, p100). E-mail from Mother to Father (T15, p104). 17-07-2018 Father claims the Daughter ‘ran away’ from Mother’s home. Mother has diary entries showing she was travelling to Noosa with the Daughter that day. 21-07-2018 Mother sends e-mail to father advising the whereabouts of the Daughter (with Elis) (T15, p106). Care changes to 100% to the Father 24-07-2018 Mother travels to Indonesia – father terminally ill. 07-08-2018 Mother returns to Australia 24-08-2018 Father’s e-mail to Mother complaining Mother not making herself available. Daughter in extreme distress. 27-08-2018 Mother’s e-mail to Father in reply disputing his assertions. 17-09-2018 Mother consults with Ferguson Legal. 27-09-2018 Mother travels to Indonesia to attend father’s funeral 16-10-2018 Mother returns to Australia. 25-10-2018 E-mail re Christmas holidays care arrangements. 26-10-2018 Father informs the Agency he has 100% care of the Daughter 26-11-2018 Care decision made by the Agency 01-12-2018 Mother calls the Agency and says she has lodged a written objection. Told not received. 06-12-2018 Care decision sent to parties 24-12-2018 Mother contacts the Agency re objecting to care decision 09-01-2019 Mother consults with Ferguson Legal who advise not to use court order to force the daughter to spend time with her. No basis for a recovery order to succeed. 11-01-2019 Mother lodges objection to care decision 15-02-2019 Agency writes to parties re objection (T11) 27-02-2019 Father responds (T13) 21-03-2019 Mother responds (T15) 13-04-2019 Parent meeting with Interrelate – no resolution 15-04-2019 Interrelate unable to issue 601C certificate as parents have agreed to mediate (Exhibit 5c). 18-04-2019 Mother lodges complaint to the Agency re the care decision (T20) 30-04-2019 Mediation at Interrelate Family Relationship Centre, Lismore –> Parenting Plan (Exhibit 5d) 20-05-2019 Objection disallowed (T16) **-05-2019 Mother returns to Indonesia as her mother had a stroke. (Died on 03-07-2021) 30-06-2020 Mother applies for first review (SSCSD) (T21) 21-08-2020 Decision reviewed and affirmed by AAT1 23-09-2020 Mother applies for second review (GD) 24-11-2020 AAT Directions extends the time to make application for second review to 23-09-2020. 04-12-2020 AAT Decision re EOT not required.
Key Legal Topics
Areas of Law
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Family Law
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Administrative Law
Legal Concepts
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Appeal
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Jurisdiction
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Procedural Fairness
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Remedies
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Statutory Construction
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