Eden and Ross (Child support)

[2020] AATA 2671

Eden and Ross (Child support) [2020] AATA 2671 (2 June 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC017964

APPLICANT:  Ms Eden

OTHER PARTIES:  Child Support Registrar

Mr Ross

TRIBUNAL:Member M Douglas

DECISION DATE:  2 June 2020

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides to accept the application Ms Eden made by telephone on 29 May 2019 under subsection151B(1) of the Child Support (Assessment) Act 1989 for the child support assessment for [Child 1] to continue in force until the last day of the secondary school year for [Child 1], being 1 November 2019.

CATCHWORDS

CHILD SUPPORT – application to extend child support assessment beyond a child’s 18^th birthday – whether there were exceptional circumstances justifying the making of the application after the child’s 18^th birthday – decision under review set aside and substituted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

1. Ms Eden and Mr Ross are the parents of twins, [Child 1] and [Child 2], born [May] 2001. This matter relates only to the administrative assessment of child support for [Child 1], which came to an end on [date] May 2019, being the day before his 18^th birthday. 

2. [Child 1] completed his secondary schooling on 1 November 2019, which of course was after the child support assessment for him had ended.  On 29 May 2019, Ms Eden applied to the Department of Human Services – Child Support (the Department), which was how the relevant Commonwealth Department through which the Child Support Registrar acts was then described, for the child support assessment for [Child 1] to continue beyond his 18^th birthday until the conclusion of his secondary school year. Ms Eden had previously informed the Department on 3 January 2019, that [Child 1] would not complete his secondary education until after his 18^th birthday but did not on that occasion make an application for the child support assessment to continue beyond [Child 1]’s 18^th birthday.     

3. On 22 August 2019 the Department refused to accept Ms Eden’s application to continue the assessment of child support for [Child 1] beyond his 18^th birthday. On 13 August 2019, Ms Eden objected to that decision, and on 28 November 2019 the Department disallowed her objection.

4. Ms Eden then applied to the Tribunal, on 3 December 2019, for a review of the Department’s decision disallowing her objection.

5. The Tribunal commenced a hearing of her application on 7 April 2020. Ms Eden and Mr Ross participated by telephone and gave sworn oral evidence. The Department, whilst not appearing on that occasion, had provided the Tribunal, in accordance with subsection 37(1) of the AdministrativeAppeals Tribunal Act 1975 (the AAT Act), documents it held relating to its objection decision of 28 November 2019. After hearing evidence from Ms Eden and Mr Ross on 7 April 2020, the Tribunal adjourned the hearing to 2 June 2020 and issued a request to the Department under section 95G of the Child Support (Registration and Collection) Act 1988 to provide further information and documents to the Tribunal relating to the objection decision and ordered the Department under paragraph 39AA(5)(a) of the AAT Act to make oral submissions to the Tribunal on 2 June 2020 with respect to certain matters relating to the decision.

6. The Department provided the further documents and information the Tribunal requested, and when the hearing resumed on 2 June 2020, Mr[A], solicitor, participated by telephone for the Department and made oral submissions.  Ms Eden and Mr Ross again participated by telephone and gave further sworn oral evidence and also made submissions.

THE RELEVANT LAW AND THE ISSUE IN THIS CASE

1. Subsection 151B(1) of the Child Support (Assessment) Act 1989 (the Act) allows a carer entitled to child support for a child to apply to the Department for the administrative assessment of child support for the child to continue in force until the last day of the secondary school year in which the child turns 18. The Department can only accept such an application if the criteria specified in subsection 151C(2) of the Act are met.  The dispute in this case relates to one only of those criteria, and that is the criterion listed in subparagraph 151(C)(e)(ii), which reads “there are, in the Registrar’s opinion, exceptional circumstances justifying the making of the application after the child’s 18^th birthday.”

2. The issue the Tribunal must therefore consider in this case is whether it can form the opinion that there were exceptional circumstances that justified Ms Eden applying after [Child 1]’s 18^th birthday for the child support assessment to continue in force until the last day of his secondary school year.

CONSIDERATION

1. On 3 January 2019, Ms Eden telephoned the Department.  Her purpose was initially to establish what amount of child support she was owed, but during the conversation she had with the Department she informed the Department that [Child 1] would still be in secondary school beyond his 18^th birthday. The Department, in accordance with its usual practice, recorded the call. The Department has provided the Tribunal with a transcript of the conversation.  The relevant parts of that transcript relating to [Child 1] being in secondary school beyond his 18^th birthday read as follows:

   “MS EDEN: YEAH I DON’T LIKE – LIKE THE LAST DECEMBER LIKE I GOT A LETTER FROM CENTRELINK SAYING THAT IT WAS CANCELLED, THAT THE KIDS WERE BEING MATURE AND HE’S IN YEAR ELEVEN. I THINK IT’S BECAUSE WHEN THEY TURN EIGHTEEN HALF WAY THROUGH LIKE IN MAY SO THEY THOUGHT THAT THEY WERE – WELL THIS IS ME GUESSING – THAT THEY WERE FINISHING BUT THEY’RE STILL AT SCHOOL, WELL THEY’RE ON HOLIDAYS AT THE MOMENT. YES SO I DON’T KNOW LIKE EVERYTHING KEPT COMING UP WRONG AND THAT WAS LIKE IF SOMEONE HAD CHANGED IT AND I DON’T KNOW WHY BUT ANYWAY
   CHILD SUPPORT AGENCY: YOU SAID HOW OLD ARE THEY?
   MS EDEN: THEY’RE ONLY SEVENTEEN.
   CHILD SUPPORT AGENCY: OKAY.
   MS EDEN: AND THEY’RE STILL AT SCHOOL.
   CHILD SUPPORT AGENCY: RIGHT OKAY, AND WHEN DO THEY TURN EIGHTEEN?
   MS EDEN: THEY DON’T TURN EIGHTEEN UNTIL [date] OF MAY BUT THEY’LL STILL BE AT SCHOOL

   CHILD SUPPORT AGENCY: OK
   MS EDEN: HE HAS TO BE HELPED UNTIL HE FINISHES SCHOOL ISN’T THAT RIGHT?

CHILD SUPPORT AGENCY: YES THAT’S CORRECT. YES SO I’M JUST GOING TO HAVE A LOOK TO SEE ABOUT THE – BECAUSE WE’VE GOT AN APPLICATION THAT YOU CAN APPLY FOR WHICH IS TO EXTEND THE CHILD SUPPORT BEYOND THE CHILDREN’S EIGHTEENTH BIRTHDAY
MS EDEN: MH
CHILD SUPPORT AGENCY: YES SO THE APPLICATION HAS TO BE MADE PRIOR TO THEM TURNING EIGHTEEN AND YOU CAN DO THAT OVER THE PHONE. IT’S JUST A MATTER OF YOU PROVIDING DATES FROM THE SCHOOL AS TO WHEN THEIR LAST REQUIRED DAY IS.
MS EDEN: OK
CHILD SUPPORT AGENCY: IF THEY’RE DOING EXAMS THEY MIGHT BE THERE UNTIL THE TWENTY-SIXTH OF NOVEMBER OR WHATEVER IT MIGHT BE.
MS EDEN: YEP
CHILD SUPPORT AGENCY: AND SO WE JUST INFORMATION ABOUT THE SCHOOL. SO WHAT WE DO IS THAT WE PROCESS YOU THROUGH THE SYSTEM. WE PEND IT FOR FOURTEEN DAYS AND ALLOW THE OTHER PARTY THE OPPORTUNITY TO DISPUTE THE FACTS OF THE APPLICATION AND IF THERE’S NO DISPUTE, IT’LL BE PROCESSED TO EXTEND THAT CHILD SUPPORT UP UNTIL THAT DATE THAT YOU ADVISE US THAT THEY ARE REQUIRED TO BE AT SCHOOL UNTIL. 
MS EDEN: CAN I DO THAT NOW?
CHILD SUPPORT AGENCY: IF YOU HAVE THE DATES, YES NO PROBLEM.
MS EDEN: I DON’T HAVE – OH I CAN TRY AND GET THEM FROM MY PHONE.
CHILD SUPPORT AGENCY: YES THAT’S ALRIGHT. I’LL JUST REDRAW THE OTHER THINGS HERE – END OF DATE – HAPPENING DATE.
MS EDEN: YOU NEED THE SCHOOL TERM IS IT?
CHILD SUPPORT AGENCY: LOOK THE DATES DIFFER, IT DEPENDS ON THE CHILD’S EXAMS, IF THEY ARE REQUIRED TO GO BACK TO SCHOOL FOR THE FINAL AWARD OR WHATEVER IT MIGHT BE
MS EDEN: YEP
CHILD SUPPORT AGENCY: IT’S PRETTY MUCH THE LAST DAY THAT THEY ARE REQUIRED TO BE GOING TO SCHOOL IS THE DATES THAT WE REQUIRE. AND THE REASON THAT WE NEED THE DATE TO BE ACCURATE IS BECAUSE IF THE OTHER PARTY DECIDES TO DISPUTE THE DATES OR THE FACT THAT THE CHILD’S GOING TO SCHOOL WE WOULD HAVE TO COME BACK AND REQUEST EVENTS FROM THE SCHOOL, A LETTER.
MS EDEN: OK, I CAN TELL YOU THE SCHOOL BUT I DON’T KNOW THE DATES YET AND THEY’RE NOT BACK YET FOR ME TO CALL THEM.
CHILD SUPPORT AGENCY: THAT’S OK. SO YOU SAID THEY TURN EIGHTEEN IN MAY?
MS EDEN: YEAH
CHILD SUPPORT AGENCY: YEAH YOU’VE GOT TIME. SO AS LONG AS IT’S DONE BEFORE THEY TURN EIGHTEEN WE CAN STILL HAVE IT PROCESSED. IF IT’S AFTER THEY TURN EIGHTEEN WE CAN’T PROCESS IT.
MS EDEN: OK
CHILD SUPPORT AGENCY: YEAH SO YOU’VE GOT UP UNTIL WHENEVER IT IS IN MAY UNTIL THEY TURN EIGHTEEN, JUST CALL US BEFOREHAND. I’LL JUST FINISH THIS OFF UH
MS EDEN: I’VE JUST GOT TO REMEMBER TO DO IT THEN
CHILD SUPPORT AGENCY: YEAH MAYBE JUST LEAVE YOURSELF A NOTE OR SOMETHING. LOOK YOU SHOULD RECEIVE A LETTER AS WELL IF IT HASN’T ALREADY GENERATED, YOU SHOULD RECEIVE A LETTER. DON’T RELY ON THE LETTER IN CASE WE, YOU KNOW WHAT I MEAN, LIKE IF WE –
MS EDEN: YEAH
CHILD SUPPORT AGENCY: UM, THEREFORE –
MS EDEN: I KNOW IT’S THE BEGINNING OF DECEMBER BUT I CAN’T REMEMBER THE EXACT DATE, IT’S NORMALLY AROUND THE FOURTH OR THE FIFTH
CHILD SUPPORT AGENCY: YEAH SO ALL THE DATES DIFFER LIKE I’VE TAKEN SOME WHERE IT WAS THE END OF OCTOBER, I’VE TAKEN SOME THROUGH NOVEMBER AND I’VE TAKEN SOME IN DECEMBER, IT DEPENDS ON THE SCHOOL ITSELF AS WELL
MS EDEN: YEAH
[SILENCE]
CHILD SUPPORT AGENCY: OK – EXCELLENT ALRIGHT SO THAT’S ALL DONE THERE. ALRIGHT SO THE APPLICATION, CHECK –[date] OF MAY, OK.
CHILD SUPPORT AGENCY: SO AS LONG AS IT IS MADE BY THE [date] OF MAY
MS EDEN: YEP
CHILD SUPPORT AGENCY: WE CAN PUT THAT THROUGH TO BOTH CHILDREN AND THEN AS I SAID, IS THE OTHER PARTY AWARE THAT THEY ARE STILL IN SCHOOL?
MS EDEN: YEAH
CHILD SUPPORT AGENCY: OK, SO THEN A LETTER WILL JUST GENERATE ADVISING THE OTHER PARTY AN APPLICATION TO EXTEND THE CHILD SUPPORT. YOU HAVE FOURTEEN DAYS IN WHICH TO DISPUTE. IF HE DOESN’T MAKE CONTACT, OUR SYSTEM WILL AUTOMATICALLY ACCEPT IT. IF HE DOES WE’LL COME BACK TO YOU FOR EVIDENCE.

MS EDEN: NO PROBLEM

1. What occurred in that conversation, in the Tribunal’s view, is that Ms Eden sought to make an application under subsection 151B(1) but was dissuaded from doing so by the officer of the Department with whom she was speaking. This officer suggested to Ms Eden that Ms Eden had to provide the Department the date “from the school as to when [[Child 1]’s] last required day is” and that Ms Eden had to do so at the time she made the application. When Ms Eden enquired “can I do that now?”, meaning make her application under subsection 151B(1) during the call, the officer responded, “If you have the dates, yes, no problem.”

2. In substance, what the officer told Ms Eden was that she was not entitled to make an application under subsection 151B(1) unless she could tell the Department what [Child 1]’s last day at secondary school would be. The officer was wrong to do so. The legislation does not require that information be given to the Department as part of an application a carer entitled to child support makes under subsection 151B(1). It may have been a matter of convenience for the Department to have had that information, because, as indicated by the officer, it would save the Department the trouble of having to revert to Ms Eden in the event that Mr Ross disputed [Child 1] would still be in secondary school beyond the child’s 18^th birthday, but the fact that Ms Eden could not provide the information by phone on 3 January 2019 did not disqualify her from then making the application.

3. The Department posted a letter to Ms Eden on 1 March 2019 in which it informed Ms Eden that she would need to apply before [Child 1] turned 18 to have the assessment continue beyond his 18^th birthday until the conclusion of his full-time secondary education.

4. Ms Eden’s evidence to the Tribunal was to the effect that on 29 May 2019 she accessed her CSA online account and then discovered the assessment had ended. She then called the Department and said that she believed she had lodged an “18 claim” for both children when she contacted the Department in mid to late April.

5. As mentioned earlier, it is the Department’s practice to record all incoming calls. There is no record of Ms Eden calling the Department in April and, given that it is the Department’s practice to record incoming calls and there is no record of Ms Eden calling the Department in April, the Tribunal considers that, in all likelihood, Ms Eden did not make a call to the Department in April.

6. Notwithstanding that, the Tribunal considers that there are exceptional circumstances in this case that justified Ms Eden making her application under subsection 151B(1) on 29 May 2019.

7. The term “exceptional circumstances” is not defined in the Act.  The Department lists some examples within paragraph 2.5.5 of the Child Support Guide of what might constitute exceptional circumstances, but these examples, because they are examples, are only illustrative and not definitive of the types of circumstances that would be exceptional.  Each case must be considered on its own merits.   

8. The definition given for “exceptional” in both the third edition of the Macquarie Concise Dictionary and the online edition include, relevant to this case, “forming an exception or unusual instance; unusual; extraordinary”. The definition for “exception” includes “an instance or case not conforming to the general rule”. The definition for “extraordinary” includes “out of the regular or established order”.  The definition for “unusual” includes “not usual, common or ordinary”.

9. One would expect that when a parent calls the Department regarding a query about the parent’s child support case, the parent would get accurate advice from the Department. That would be the “general rule”. That would be what is usual for the parent to expect. That ought to be what a parent should expect as being regular. In this case Ms Eden did not get accurate advice in her conversation with the Department on 3 January 2019 and was actively dissuaded from making an application under subsection 151B(1). Having regard to what was said in the conversation, specifically:

   ·    Ms Eden informing the Department that [Child 1] would still be at school after his 18^th birthday,

   ·    Ms Eden expressing her understanding that [Child 1] “has to be helped until he finishes school isn’t that right”,

   ·    the Department wrongly telling Ms Eden that she could only make an application under section 151B(1) if she could provide the Department with the date on which [Child 1] finished his secondary schooling,

   ·    Ms Eden telling the Department that his last day of [Child 1]’s school year would likely be the fourth or fifth of December, and

   ·    Ms Eden seeking to make the application during the telephone conversation but being dissuaded by the Department from doing on the basis that Ms Eden could not provide the Department with the last day of [Child 1]’s secondary school year, which was not a pre-requisite to Ms Eden making the application.

   It is plausible and in the Tribunal’s view likely that Ms Eden was subsequently confused regarding whether she had made an application. It is plausible, and in the Tribunal’s view likely her confusion led her to believe that she had in fact made the application, whereas in fact she had not. In the Tribunal’s view that amounts to an exceptional circumstance that justified her making the application on 29 May 2019.

10. The Tribunal notes that in the documents the Department provided there is a letter from [Child 1]’s school dated 5 November 2019 in which the school advises that [Child 1] completed his HSC exams on 1 November 2019.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides to accept the application Ms M made by telephone on 29 May 2019 under subsection151B(1) of the Child Support (Assessment) Act 1989 for the child support assessment for [Child 1] to continue in force until the last day of the secondary school year for [Child 1], being 1 November 2019