CQJB and Child Support Registrar (Child support second review)
[2024] ARTA 594
•11 December 2024
CQJB and Child Support Registrar (Child support second review) [2024] ARTA 594 (11 December 2024)
Applicant/s: CQJB
Respondent: Child Support Registrar
Other Parties: JHLS
Tribunal Number: 2023/9379
Tribunal:General Member P Ranson (second review)
Place:Brisbane
Date:11 December 2024
Decision:The Tribunal sets aside the decision under review and in substitution decides from 15 June 2022:
(a)CQJB has 0% care of the children, and
(b)JHLS has 0% care of the children.
................[Sgnd]............................................
[General 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 – Review of decision of Social Services and Child Support Division – whether special circumstances existed to prevent the father from appealing to the General Division of AAT – where covering letter from Centrelink can be confusing to a lay reader – where the father suffers from learning and literacy difficulties – decision set aside and substituted.
Legislation
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Child Support (Registration and Collection) Act 1988
Cases
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Secondary Materials
Child Support Guide
Statement of Reasons
Background
CQJB (the father) has four children with JHLS (the mother), one son who is an adult and three daughters (Ms C, Ms K and Ms N). Ms C is also an adult. The father is not a well‑educated man as he suffers from poor literacy, and because of his separation from the mother and later his wife (who is not the mother of the children) as well as the major difficulties in raising the children, he also suffers from depression. He has been medicated for his depression since 2022.
The care of the children had been left with the mother who implemented no boundaries in parenting them and let them do what they pleased. The mother is said to be a drug addict and may have given illicit drugs to the children. Ms C and Ms N have children of their own. Ms N became pregnant when she was 14 and had her child when she was 15. Ms K has been taken into state care after she was found being homeless. Despite the lack of care of Ms K and Ms N by the mother, the father has paid child support as he was required to do.
In August 2022, the mother went to Mackay and left Ms K and Ms N with Ms C. She says she left food and provisions for them and was only away a short time with every intention of returning to care for them. The father took a different view and contacted the Child Support Registrar (the Agency or Centrelink) to report her disappearance. The Agency couldn’t contact the mother, so they changed the childcare arrangement to be 0% care to both parents, which ended the child support case.
In December 2022, the mother successfully objected to this determination and the care percentages reverted to 100% to her and 0% to the father. However, as she had applied late the decision had effect from the date of notification. The father was unhappy with this decision and in July 2023 he applied to the Social Security and Child Support Division (as it was) of the former Administrative Appeals Tribunal (AAT) for a review of it, which found the care changed on 15 June 2022.
Unfortunately, the father applied outside of the requisite 28-day time frame and even though he was successful in his appeal, the date of effect was July 2023. That meant he had to pay child support for the period from July 2022, when Centrelink recorded the change of care to July 2023 even though the mother had no care of the children at that time.
The father then applied to the General Division (as it was) of the AAT for a review of the date of effect decision. He is satisfied with the decision to find 0% care for each parent and seeks a decision that special circumstances prevented him from applying in time.
His special circumstances include his poor literacy coupled with the confusing way the notice of the decision and the decision itself is drafted. He also says he was given conflicting advice by Centrelink and was advised by them to get evidence first and then apply for a review.
The issue before this Tribunal is whether the father’s circumstances in applying out of time are special such that the time to apply can be extended to the date of application.
For the following reasons the Tribunal sets aside the decision under review and in substitution decides special circumstances applied to the father and the time for applying for the review be extended to 13 July 2023. That means the change of care to 0% for each parent applies from 15 June 2022.
The Law
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal.
The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal. The legislation referred to in these reasons includes the Child Support (Registration and Collection) Act 1988 (Cth) (the Collection Act).
The Tribunal is charged with determining the correct or preferable decision based on an independent assessment of the facts before it and is entitled to treat policy as a relevant factor in that determination.
The Full Federal Court has found that where a policy exists to guide the decision-maker in exercising its powers, the Tribunal may apply that policy in reviewing a decision where it “makes it clear that it has considered the propriety of the particular policy and expressly indicates the considerations which have led it to that conclusion”.[1]
[1] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, from 420.
This decision relies on and applies the guidance contained in the Child Support Guide (the Guide). 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 policy is consistent with the requirements as set out in the legislation.
In the Statement of Facts, Issues and Contentions (SFIC), the Registrar points out the Tribunal’s review is confined to the question of special circumstances for the purposes of s 95N of the Collection Act and the parents’ percentages of care are not before the Tribunal on review.[2] The SFIC says the period between and inclusive of the date of the care change on 28 July 2022 and 13 July 2023 when the father applied for a review of the AAT1 decision represents the jurisdictional bounds of the care period in the present case.[3] This decision has more to say about the date the care changed later in these reasons.
[2] SFIC paragraph 25.
[3] SFIC paragraph 45.
If on first review, the AAT varies or substitutes a decision on an objection to a care percentage decision and the application for first review was made more than 28 days after notice of the decision was given, then the decision as varied or substituted by the AAT is taken to have had effect on and from the day the application for AAT first review was made.[4]
[4] Subsection 95N(1) of the Collection Act.
However, if the Tribunal (replacing the AAT) is satisfied that there are special circumstances that prevented the application for AAT first review being made within the 28-day period the Tribunal may determine that subsection 95N(1) applies as if the reference to 28 days in that paragraph were a reference to such longer period as the Tribunal determines to be appropriate.[5]
[5] Subsection 95N(2) of the Collection Act.
Special circumstances are discussed in the Guide at 4.1.8, which importantly says:
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 the date of the original decision. 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 word prevent is described in the Macquarie dictionary as to keep something from occurring or to hinder a person from doing something. To hinder someone is to place an obstacle or impediment in their way.
The Guide goes on to say the Registrar (and the Tribunal standing in the shoes of the Registrar) will then consider whether it is appropriate to exercise the discretion to extend the period in which to lodge the objection.[6] To do that 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 create a significant overpayment or significant arrears of child support?
·the applicant rested on their rights, as they did not take any action prior to lodging the objection. For example, did the applicant make any efforts to lodge the objection earlier, communicate to Services Australia that the decision was being contested or raised their concerns in other ways - for example, a complaint to Services Australia or the Ombudsman?’
[6] Subsection 87AA(2) of the Collection Act.
In summary, the Tribunal must first decide if special circumstances existed to prevent the father from applying to the AAT1 within 28 days of receiving the objection decision on 20 February 2023. If so, the Tribunal must consider whether it is appropriate to exercise the discretion to extend the period in which to lodge the appeal to that date.
What happened?
As mentioned above, the Tribunal is only concerned with the application of s 95N of the Collection Act. The Registrar, and the AAT on first review, made various care percentages decisions:
(a) 100% to the mother and 0% to the father, which applied up to 28 July 2022 (existing care determination),
(b) 0% to both parents, from 28 July 2022 (original decision). This was based on information from the father about the mother abandoning the children to live in Mackay,
(c) 100% to the mother and 0% to the father from 9 December 2022 (objection decision). This was the outcome of an objection by the mother, lodged late, in which she successfully argued she had retained care of the children. Late lodgement meant the date of effect was 9 December 2022, being the date of the objection,
(d) 0% to both parents from 14 July 2023, which is not before this Tribunal, and
(e) 0% to both parents from 15 June 2022,[7] with effect from 13 July 2023 as the application for review was lodged late (AAT1 decision). The father applied for a second review of the date of effect part of this decision. He agrees with the care percentage part of the decision.
[7] The date of revocation in the AAT1 decision is 14 June 2022.
On 20 February 2023, the Agency wrote to both parents advising of the objection decision. The wording of the first paragraph of the covering letter is the same for both parents and says:
‘We are writing to advise you that we have allowed the recent objection to reflect the care of [Ms K] and [Ms N] as 0% to [the mother] and 0% to [the father] from 28 July 2022.’
At this time, only Ms K and Ms N were subject to the care decision. Ms C was over 18 and had left home. The mother objected to the original decision to change the care to 0% to each parent.
Paragraph 29 of the AAT1 decision refers to a report by Child Safety,[8] which says:
‘It is noted that on 15 June 2022, investigations substantiated the children were in need of protection and that they had experienced detrimental emotional harm as a result of their mother being unable to adequately respond to their needs. As this evidence is from an independent third party and provides information relevant to my consideration, I have placed significant weight on the Child Safety evidence.’
[8] Queensland Government, Department of Families, Seniors, Disability Services and Child Safety.
Centrelink recorded the date of change of care as 28 July 2022 and the SFIC adopts that date also although at paragraph 58 it notes:
Even though the objection was lodged late, if the Tribunal were to find special circumstances under s95N(2), the AAT1 care decision of 0% care for each parent would apply from 15 June 2022 (and not from the date of the objection).
However, the compelling evidence before the AAT on first review was the report from Child Safety. The AAT1 decision found the care changed on 15 June 2022 and not 28 July 2022 as recorded by Centrelink. The Tribunal understands the full report by Child Safety is not in evidence because it contains copious personal information which in and of itself is not relevant to this decision. The involvement of Child Safety is nonetheless referred to many times throughout the T Documents including in the AAT1 decision at T2.
Accordingly, the Tribunal finds the care changed on 15 June 2022.
According to the SFIC, on 25 May 2023 the father uploaded documents on Child Support Online including 4 screenshots of text message exchanges between him and the youngest daughter and another showing a bank transfer of funds to her. He then called the Agency on 29 May 2023 expressing his dissatisfaction with the decision and was advised he would have to apply to the AAT for a review.
He later provided copies of emails dated 27 June 2023 from Ms C to him relaying her understanding of the living and care arrangements for Ms K and Ms N, noting that did not include any care from the mother. There is also a letter of support from the father’s brother (RP) who discusses the conflict between the mother and Ms K and Ms N and the living and care arrangements of them, again not including any reference to care by the mother.
On 13 July 2023 the father applied to the AAT for a first review of the objection decision saying he disagreed with it because he believes the children were not living with the mother and she was not supporting them financially.[9]
[9] T29.
On 16 November 2023, the AAT1 decision changed the care back to 0% to each parent, based on the Child Safety report, the text messages and the letters of support provided by the father. However, as the application was outside the 28-day period required to appeal, the date of effect was 13 July 2023, being the date that the father applied. The AAT1 decision found there were no special circumstances that prevented the father from applying in time.
The father was satisfied with the decision to change the care to 0% to each parent and dissatisfied with the decision to make the date of effect 13 July 2023. He applied to the AAT for a second review of the date of effect decision on 8 December 2023.
What does the father say?
In his pre-hearing submission, the father sums up his reasons for applying for a second review of the date of effect of the AAT1 decision. His comments were repeated in his oral evidence and that of his witness, his estranged wife (Mrs P), at the hearing. He says in part:
‘I thought I had actually won against JHLS when I read the letters as the letters only come to me online and I didn’t realise there was multiple pages to this document and therefore only read the first page. Therefore, I didn’t think I needed to lodge an appeal until I was notified that child support were going to take money from my wages. I honestly do not understand how child support works or why they haven’t been listening to me when I have been telling the truth. I called child support endlessly and would get all different advice and different information which is why I ended up adding my wife as a contact. That way she could explain it to me. I felt that there was no point to appeal the decision if I could not even prove to child support that JHLS was lying how was I going to prove it to a court. I was at a loss on how to get any of this sorted.’
The father said at the hearing he was taken out of school in year 9 to go to another school where his learning difficulties could be accommodated. He was asked at the hearing to provide some third-party evidence of his learning difficulties and he said he would ask his father for a statement given it was this father’s decision to change schools. No such submission was provided to the Tribunal.
The Tribunal understands autism spectrum disorder (ASD) and attention deficit hyperactivity disorder (ADHD) are neurodevelopmental disorders which affect the central nervous system, which is responsible for movement, language, memory and social and focusing skills. The father explained at the hearing he suffers from undiagnosed ASD and ADHD. In his pre-hearing submission, he says this:
‘I have a suspected learning disability, ASD and ADHD but no formal diagnosis. I went to a flexi school from year 9 as normal school was too hard for me and I have always struggled with literacy, understanding and comprehension. I struggle to understand what is written or being said a lot of the time. Which is why I rely heavily on my wife to explain things to me.’
The father was requested to provide some third-party evidence to support his claim he suffers from ASD and ADHD even though he said the condition was undiagnosed.
Mrs P was appointed as the representative of the father at Centrelink, which Ms Smith for the Registrar confirmed at the hearing in her cross examination of the father. The father did that because he said he couldn’t understand what he was being said to him when he called Centrelink. He said appointing Mrs P that way would enable her to explain matters to him.
Notwithstanding the lack of third-party evidence of his literacy and learning difficulties, the Tribunal accepts his oral evidence of these conditions because he appointed Mrs P as his representative due to his lack of understanding.
The father provided a copy of a document marked ‘Progress notes for [the father]’. It is dated 8 September 2022 and was prepared by a Dr Brungeswara Konda, who says the father has chronic issues with depression, is not motivated to do things, is occasionally teary, has no psychotic symptoms and has normal speech.
According to the Progress Notes, the father reported to Dr Konda he gets thoughts of self-harm sometimes, but he won’t act on them, has no suicidal ideations and has made no plans about suicide. The father was on meds [medication] in the past which he self-selected to stop. He wanted to go back on the medication and can’t remember the name of it. Dr Konda explained to the father about the possible side effects of anti‑depressants and recommended sleep hygiene, exercise and meditation.
The Tribunal accepts the progress notes from Dr Konda as third-party evidence of the diagnosis of depression for the father from at least 8 September 2022 and for whom Lexapro tablets were prescribed with the dose of 10mg once per day.
Ms Smith acknowledged at the hearing how the opening sentence of the covering letter sending out objection outcomes can be confusing for some readers, and it takes a thorough reading of the letter and the attached ‘Details of Objection Decision’ for a proper understanding of the outcome to reveal itself. The Tribunal agrees with that comment and for that reason sought clarification of the objection decision at the hearing.
The quote above from his pre-hearing submission tells the story of why the father delayed until 13 July 2023 appealing the date of effect part of the AAT1 decision which he agrees he received by e-mail on 20 February 2023. The Tribunal agrees that on a plain reading of the first sentence of the covering letter it appears as though the decision was to return to 0% care for both parents from 28 July 2022. On that basis, the Tribunal considers it unreasonable for someone with known learning and literacy difficulties to be expected to go past that sentence.
Even though the covering letter says in the third paragraph ‘If you think this decision is wrong you can ask the Administrative Appeals Tribunal (AAT) to review it. You must do this within 28 days from the date you receive this letter’, once the father concluded he had ‘won’ there was no reason for him to appeal.
The Tribunal is satisfied there are special circumstances that prevented the father from applying for a first review of the objection decision within the prescribed 28-day period because the father:
(a)suffers from depression diagnosed in September 2022,
(b)has communication difficulties, due to illiteracy or poor English-language skills arising from undiagnosed ASD and ADHD since childhood, and
(c)reasonably relied upon the opening paragraph of the covering letter dated 20 February 2023 which for him was misleading as he interpreted it as he had ‘won’, meaning there was no need for him to appeal.
Accordingly, for the purposes of this decision, the Tribunal finds the reference to 28 days in paragraph 95N(2)(b) is a reference to 13 July 2023, being a period ending on the date the father applied for the review. That means the time to apply for the review is extended to 13 July 2023.
The Tribunal considered whether the decision to extend the period in which to lodge the appeal to the AAT for first review of the objection decision may prejudice the mother. Ms Smith provided an estimate of $2,800 being the potential overpayment of child support paid to her by the father. The Tribunal considers this is not a significant amount because it can be repaid at less than $30/week over two years, which the mother can fund by periodic deductions from other social security benefits or employment income.
The Tribunal then considered whether the father rested on his rights and did not take any action prior to lodging the appeal against the objection. The father called Centrelink multiple times once he realised childcare payments were being deducted from his pay. He told them the decision was wrong and he says he was given conflicting advice and that he would need to gather evidence before he could appeal the decision for a second review with the AAT. The Tribunal finds the father did not rest on his rights nor failed to take any action prior to lodging his appeal.
Decision
The Tribunal sets aside the decision under review and in substitution decides from 15 June 2022:
(a)CQJB has 0% care of the children, and
(b)JHLS has 0% care of the children.
| Date(s) of hearing: | 2 September 2024 |
| Date final submissions received: | 10 September 2024 |
| Solicitors for the Applicant: | Self-Represented |
| Solicitors for the Respondent: | Ms Donna Smith, Deputy General Counsel for the Registrar |
0
2
0