GFFQ and Secretary, Department of Social Services (Social services second review) - [2021] AATA 3254

GFFQ and Secretary, Department of Social Services (Social services second review) [2021] AATA 3254 (8 September 2021)
Division:GENERAL DIVISION
File Number: 2020/5161
Re:GFFQ
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms A E Burke AO Member
Date:8 September 2021
Place:Melbourne

Pursuant to section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act, the Tribunal sets aside the decision under review and remits the matter to the Respondent with the following findings:
(a)That GFFQ was not a member of a couple during the period in question; and
(b)That special circumstances existed in accordance with section 32C(3)(b) of the A New Tax System (Family Assistance) (Administration) Act 1999 to grant GFFQ an extension of time until 20 September 2016 to lodge her income tax return for the 204/15 income year; and
(c)As such, GFFQ is eligible for top-up payments and supplements of $5,340.

...........................[sgd].............................................
Ms A E Burke AO Member
Catchwords
FAMILY TAX BENEFIT – whether applicant entitled to family tax benefit – late lodgement of income tax return – whether member of a couple during the period - whether special circumstances exist – decision under review set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975
A New Tax System (Family Assistance) Act 1991
A New Tax System (Family Assistance) (Administration) Act 1999
Social Security Act 1991
Cases
Angelakos and Secretary Department of Employment and Workplace Relations (2007) 100 ALD 9
Beadle and Director-General of Social Security (1984) 6 ALD 1
Berges and Secretary, Department of Social Services [2020] AATA 3507
Bisceglie and Secretary, Department of Social Services [2016] AATA 294
Bondzulic and Secretary, Department of Social Services [2017] AATA 455
Burgess and Secretary, Department of Social Services [2017] AATA 525
Crabtree and Secretary, Department of Social Services [2017] AATA 1024
Cobbin and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 433
Davy and Secretary, Department of Employment and Workplace Relations (2007) 94 ALD 693
Dean and Department of Education, Science and Training (2005) 87 ALD 779
Drake and Minister for Immigration and Ethic Affairs (No 2) (1979) 2 ALD 634
Dranichnikov v Centrelink (2003) 75 ALD 134
Gammaldi and Secretary, Department of Social Services [2016] AATA 1028
Groth and Secretary, Department of Social Security (1995) 37 ALD 797
Hill and Secretary, Department of Family and Community Services [1999] AATA 909
Iskenderian and Secretary, Department of Social Services [2016] AATA 717
Lineham and Secretary, Department of Social Services [2016] AATA 127
Nicholson and Secretary, Department of Social Services [2016] AATA 630
Ryde v Sec Department of Family and Community Services [2005] FCA 886
Sami and Secretary, Department of Social Services [2016] AATA 636
Secretary, Department of Social Services and Bleeker [2016] AATA 290
Secretary, Department of Social Services and Elrington [2016] AATA 169
Secretary, Department of Social Services and Hollis [2015] AATA 941
Secretary, Department of Family and Community Services and Temesgea [2002] AATA 1290
Secretary, Department of Social Services and Tseng [2017] AATA 1087
Secretary, Department of Social Security and Winters (unreported, AATA, Member SM Bullock, No 12518, 23 December 1997)
Riddell v Secretary, Department of Social Security (1993) 42 FCR 443
Woodward and Department of Family and Community Services [2001] AATA 818
Secondary Materials
Guide to Social Security Law, Family Assistance Department of Social Services
REASONS FOR DECISION
Ms A E Burke AO Member

GFFQ (the Applicant) is seeking a second-tier review by the General Division of the AAT (AAT2) of the decision made by the Secretary, Department of Human Services (the Respondent) that she was not entitled to Family Tax Benefit (FTB) top up and supplement for the 2014-2015 year pursuant to the A New Tax System (Family Assistance) (Administration) Act 1999 (the Act).
The application was heard via telephone on 2 July 2021. QFFQ was self-represented and Mr Tim Noonan, a lawyer in the Litigation Team of Services Australia appeared for the Respondent. The Applicant gave evidence under affirmation.
BACKGROUND
During the 2014-2015 year GFFQ was married (subsequently separated), had two FTB- eligible children and was paid FTB, based, among other things, on an estimated combined adjusted taxable income of $97,900 from 1 July 2014 to 22 May 2015 and $36,000 from 23 May 2015 to 30 June 2015.
On 21 March 2016 Centrelink advised GFFQ by letter that to be eligible for her full FTB entitlements she needed to lodge her tax return by 30 June 2016. The letter stated:
To make sure you receive your full Family Tax Benefit entitlement, you and your partner need to lodge a 2014-2015 tax return, or tell us if you and/or your partner are not required to lodge a tax return, by 30 June 2016.
There are benefits to lodging your 2014-2015 tax return or telling us if you are not required to lodge a tax return before 30 June 2016. These include:
• Top up payment - if you were underpaid Family Tax Benefit, you may receive any payment owing as a lump sum.
• Family Tax Benefit supplements - depending on your circumstances, you may be entitled to an additional lump sum Family Tax Benefit supplement after the end of the financial year.
Supplement Year Part A (maximum per child) Part B (maximum per family)
2014-2015 $726.35 $354.05
If you and your partner do not take action by 30 June 2016
If you and your partner have not lodged a tax return or you have not advised us that you and your partner are not required to lodge tax return/s by 30 June 2016:
• you will not be eligible for any further Family Tax Benefit, including the Family Tax Benefit supplements, for the 2014-2015 financial year
• you will have to pay back all of the Family Tax Benefit you received for the 2014-2015 financial year, and
• you will no longer be able to receive Family Tax Benefit payments fortnightly
On 21 September 2016, Centrelink notified GFFQ of her FTB payments for the 2014 - 2015 income year.
Total Family Tax Benefit you are entitled to $8,852.48
Less what you have already received           $3,512.42
Sub Total   $5,340.06
Adjustments made  - $5,340.06
Less adjustments
Balance   $0.00
On 12 January 2017, an internal review by a departmental Authorised Review Officer (ARO) affirmed the earlier Centrelink decision that GFFQ was not entitled to any Family Tax Benefit top-up payments including FTB Part A and Part B supplements for the 2014/2015 financial year. The Reasons for Decision states:
Family Tax Benefit Part A and B supplement payments are available after the end of the financial year, once reconciliation occurs. Reconciliation is a process in which a person’s income estimates are compared with the income assessed by the ATO. If the income estimates were too low, the person may incur a debt, if they were high, the person may receive arrears.
To be eligible for any top-up payments, including end of year Family Tax Benefit Part A and Part B supplements, you and your partner must lodge your tax returns with the ATO within 12 months of the end of the financial year.
As you did not lodge your 2014/2015 tax returns with the ATO until 20 September 2016 you are not eligible for any top-up payments or Family Tax Benefit Part A or Part B supplements.
A person may be granted an extension if they have special circumstances which prevented them from meeting the lodgement requirements by 30 June of the lodgement year. Special circumstances are generally due to situations that are unusual, uncommon or exceptional.
You have provided information regarding having to leave the country due to the passing of your father in April 2016. I have found no reason to doubt the information you have provided. I acknowledge the impact this would have had on your ability to lodge your tax returns at that time, however, I am not able to determine that it prevented you and your partner from lodging your tax returns at any time during the lodgement year.
You stated you had documentation from the ATO accepting you were unable to lodge business returns, therefore unable to lodge personal returns. You have not provided any evidence to support this.
You provided documents on 12 January 2017 that show correspondence between yourself and your accountant on 15 May 2016 requesting he look at your records with a view to completing your tax returns. There is also a reply from your accountant on 16 May 2016 stating he would liaise with you on Thursday regarding the next steps. I find that you were in a position to lodge your returns at this time.
You have also provided information regarding having trouble understanding accounting and finances, and with having to change accountants at the last minute. I am unable to find that these circumstances can be considered unusual, uncommon or exceptional.
I have therefore determined that you are not eligible for an extension due to special circumstances.
On 5 September 2017, the Social Security and Child Support Division of the Administrative Appeals Tribunal (AAT1) affirmed the decision of the ARO, finding no special circumstance existed to grant FTB top-up and supplementary payment. The Member stated at [20]:
The tribunal carefully considered the circumstances surrounding the late lodgement of Mr and GFFQ’s income tax returns for the 2014/2015 year. The tribunal accepts that the passing of GFFQ’s father and Mr […].withdrawing his services late in May 2016 were events beyond the control of GFFQ. However, the decision to delay attending to her taxation affairs for almost nine months is a decision well within GFFQ’s control. The tribunal is satisfied that it was open to GFFQ to commence meetings with an accountant in respect of the taxation affairs of …. in July 2015, in particular given her uncertainty surrounding operation and record-keeping of a new business. The tribunal finds that commencement of a new business and the associated learning curve does not create special circumstances that prevented Mr and GFFQ from attending to their taxation affairs at an earlier date and lodging their income tax returns by 30 June 2016. Consequently, the tribunal, standing in the shoes of the Secretary, has no discretion under subparagraph 32C(3)(b) of the Administration Act to allow a further period for lodgement beyond 30 June 2016 of Mr and GFFQ’s 2014/2015 income tax returns.
On 25 August 2020, GFFQ requested a review of the AAT1 decision by AAT2 and sought an extension of time to do so. She disagreed with the AAT1 decision, stating:
I went through a depressive state and felt that everything was against me especially after my father’s death. I also went through family domestic violence issues and needed to seek a psychologist help to deal with my partner mental and abuse issues. I am slowly coming out of this and realise I have a voice and it does matters and that the decision made by centrelink was harsh and wrong.(you can check Victoria police database for the AVO and also medicare for my regular sessions with the psychologist.
I have strong faith today that the second review will come out positive for me as i have sat for hours and reviewed Centrelink officer decision.
…
I have since got professional legal advice and have strong evidence to conclude that the officer from the first review missed key points.
Also I was overseas during the first review meeting and it impacted my full representation of my case.
On 20 November 2020 AAT2 granted an extension of time to GFFQ under section 29(7) of the AAT Act.
THE ISSUES IN CONTENTION
The issue in contention is whether GFFQ was qualified for FTB top-up and supplements for the 2014-2015 income year.
THE LEGISLATIVE CONTEXT
FTB is worked out as an annual entitlement, based on the combined adjusted income of the recipient and their partner. In the financial years in question, recipients could elect to receive FTB by fortnightly instalments based on their income assessments. Alternatively, they could elect to receive their full FTB entitlement as a lump sum after the end of the financial year.
The Tribunal is assisted by the Guide to Social Policy Law: Family Assistance (the Guide). The Guide provides assistance to those who administer the Act. While it is not bound to apply policy guidelines, the Tribunal will usually do so unless there are cogent reasons in a particular case not to do so (Refer to Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
The Guide outlines the complex system for an individual to apply for their full entitlement to FBT. The guide relevantly states at 6.4.1.30:
Assessment of FA entitlement
…The first step of the reconciliation process is to determine the individual's annual entitlement for the relevant income year. This relies on the assessment of the individual's and their partner's (if applicable) actual Adjusted taxable income ATI (for FTB). This information will determine the individual's entitlement for the relevant income year.
Annual entitlement is also dependent on whether an individual is eligible for the end of year FTB Part A supplement for each of their children and/or the FTB Part B supplement.
FTB Part A supplement
The FTB Part A supplement is paid to a person who is eligible to receive FTB Part A for an FTB child but is only payable as part of the reconciliation process. The FTB Part A supplement cannot be paid in fortnightly instalments.
Payment of the supplement is conditional on:
the FTB individual and/or their partner lodging a tax return or informing Centrelink they are not required to lodge a tax return within 12 months of the relevant income year, and
the FTB individual having family ATI of $80,000 or less for the relevant income year.
The FTB Part A supplement is included as part of the rate calculation process during reconciliation and may have the effect of reducing an overpayment incurred during the current or previous income year/s.
FTB Part B supplement
The FTB Part B supplement is paid to a person who is eligible to receive FTB Part B but is only payable as part of the reconciliation process. The FTB Part B supplement cannot be paid in fortnightly instalments.
Payment of the supplement is conditional on the individual and/or their partner lodging a tax return or informing Centrelink they are not required to lodge a tax return within 12 months of the income year. The FTB Part B supplement is included as part of the rate calculation process during reconciliation and therefore, may have the effect of reducing an overpayment incurred during the current or previous income year/s.
Amount entitled versus amount paid
The second step in reconciliation is to subtract the amount paid to the individual in FTB instalments or CCS fee reductions during the relevant income year according to Centrelink records from the individual's FTB and/or CCS entitlement. The result of this calculation is the reconciliation outcome which may entitle an individual to a top-up, require the repayment of a debt, or a nil adjustment.
At 6.4.3 the Guide states:
Lodge an income tax return within 12 months of entitlement
An individual claiming FTB (and/or their partner), is required to lodge an income tax return or inform Centrelink if it is determined that they are not required to lodge, within 12 months following the income year (Income year is the year in which a person is entitled to receive FTB. The income year is a full financial year beginning on 1 July and ending 30 June.) in which they received a payment.
Where an individual (and/or their partner) lodges an income tax return or informs Centrelink they are not required to lodge, the individual's payments for the income year are reconciled.
Lodgement of tax return after the lodgement period - instalment recipients
If an individual who receives FTB by instalment (and/or their partner), fails to lodge an income tax return or inform Centrelink they are not required to lodge within 12 months following the relevant income year, then they are no longer eligible to receive any top-up payments including the FTB Part A and FTB Part B supplements.
Where an individual (and/or their partner) lodges an income tax return after the lodgement year, they will only be entitled to the lesser of:
·the amount of FA the individual was entitled to during the relevant income year, or
·the amount of FA the individual was entitled to based on actual ATI.
Explanation: This means that the individual will not be entitled to receive any top-up payment or FTB supplements if they lodge income tax return/s after the lodgement year.
An individual who has chosen to defer some of their FTB entitlement for the relevant year and lodges a tax return, or informs Centrelink they are not required to lodge after the end of the lodgement year, can only be paid for the relevant income year the lesser of their legislative entitlement based on ATI or the amount they would have received had the choice not been made to defer some or all of their FTB.
The 12 month lodgement timeframe may be extended if special circumstances exist, which prevent the individual from meeting their income confirmation obligations. An extension can be granted up to the end of the year following the lodgement year.
The definition of a member of a couple for the purposes of FTB is the same as in section 24 of the Social Security Act 1991. The Guide outlines the definition as follows at 1.1.M.50:
The term 'member of a couple' has the same meaning under the FAAct as under the SSAct.
An individual is a member of a couple with another individual under the SSAct if they are:
·legally married or in a registered relationship and not living apart on a permanent or indefinite basis, or
·in a de facto relationship and are over the age of consent and not in a prohibited relationship.
In determining if an individual is a member of a couple, consideration must be given to the following 5 factors:
·the financial aspects of the relationship
·the nature of the household
·the social aspects of the relationship
·any sexual relationship between the individuals, and
·the nature of the individual's commitment to each other.
Section 32A of the Act requires that the Secretary disregard the amounts of the FTB supplements when making or varying a determination until the person” has satisfied the FTB reconciliation conditions” which apply in the relevant period:
32A FTB Part A supplement and FTB Part B supplement to be disregarded unless and until individual has satisfied the FTB reconciliation conditions
(1) This section applies to a decision of the Secretary to make or vary a section 16 or 17 determination if, as a result of the decision, an individual (the first individual) is entitled to be paid family tax benefit at a particular rate in respect of a period (the same-rate benefit period) that consists of, or is included in, a particular income year (the relevant income year).
(2) In making or varying the determination, the Secretary must disregard the following provisions:
(a) paragraph (ca) of step 1 of the method statement in clause 3 of Schedule 1 to the Family Assistance Act;
(b) paragraph (d) of step 1 of the method statement in clause 25 of Schedule 1 to the Family Assistance Act;
(ba) paragraph 29(1)(b) of Schedule 1 to the Family Assistance Act;
(bb) paragraph (b) of step 1 of the method statement in subclause 29(2) of Schedule 1 to the Family Assistance Act;
(bba) paragraph 29A(2)(b) of Schedule 1 to the Family Assistance Act; (bc) subclause 31A(1) of Schedule 1 to the Family Assistance Act;
(c) Subclause 38A(1) of Schedule 1 to the Family Assistance Act;
Unless and until:
(d) if the same-rate benefit period to which the decision relates is the only same-rate benefit period for the first individual for the relevant income year-the first individual has satisfied the FTB reconciliation conditions for the same-rate benefit period; or
(e) if the same-rate benefit period to which the decision relates is one of 2 or more same-rate benefit periods for the first individual for the relevant income year-the first individual has satisfied the FTB reconciliation conditions for each of those same-rate benefit periods.
Note 1: If those provisions are disregarded, they will be taken into account when the determination or variation is reviewed under section 105- see section 105A.
Note 2: To work out when the first individual has satisfied the FTB reconciliation conditions, see section 32B.

Section 32B of the Act states:
32B When FTB reconciliation conditions are satisfied
For the purposes of this Act, the first individual satisfies the FTB reconciliation conditions for a same-rate benefit period:
(a) if only one of sections 32C to 32Q applies to the first individual for the same-rate benefit period-at the relevant reconciliation time; or
(b) if 2 or more of sections 32C to 32Q apply to the first individual for the same-rate benefit period-at whichever of the relevant reconciliation times is the latest.
Section 32C of the Act (relevant to the 2014 - 2015 financial year) was inserted into the Act by item 16 of the Amending Act, which was effective from 1 April 2014. That section states:
32C Relevant reconciliation time-first individual must lodge tax return
(1) This section applies to the first individual for a same-rate benefit period if:
(a) the first individual is or was required to lodge an income tax return for the relevant income year; and
(b) clause 38L of Schedule 1 to the Family Assistance Act did not apply to the first individual at any time during the same-rate benefit period.
(2) Disregard paragraph (1)(b) if the first individual was a member of a couple at any time during the same-rate benefit period.
(3) The relevant reconciliation time is the time when an assessment is made under the Income Tax Assessment Act 1936 of the first individual's taxable income for the relevant income year, so long as the first individual's income tax return for the relevant income year was lodged before the end of:
(a) the first income year after the relevant income year; or
(b) such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the first individual from lodging the return before the end of that first income year.
(4) The further period under paragraph (3)(b) must end no later than the end of the second income year after the relevant income year.
Section 32D states:
32D Relevant reconciliation time-no separation of couple and partner must lodge tax return
(1) This section applies to the first individual for a same-rate benefit period if:
(a) the first individual was a member of a couple throughout that period; and
(b) the other member of the couple (the partner) is or was required to lodge an income tax return for the relevant income year; and
(c) the first individual continues to be a member of the couple until the end of:
(i) the first income year after the relevant income year; or
(ii) such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the partner from lodging the return before the end of that first income year.
(2) The relevant reconciliation time is the time when an assessment is made under the Income Tax Assessment Act 1936 of the partner's taxable income for the relevant income year, so long as the partner's income tax return for the relevant income year was lodged before the end of:
(a) the first income year after the relevant income year; or
(b) such further period (if any) as the Secretary allows under subparagraph (1)(c)(ii).
(3) The further period under subparagraph (1)(c)(ii) must end no later than the end of the second income year after the relevant income year.
EVIDENCE
GFFQ provided numerous emails dating from 23 June to 18 August 2015 between herself and the Institute of Mental Health Singapore (IME), enquiring about her sister’s current treatment and discharge plan. GFFQ’s email on 23 June 2015 states:
Thank you for your contact and all the care and attention that has been given to my sister. I am writing from Melbourne and advising you of the situation at home.
Mum who is the caregiver already has her hands full with dad who is having dementia and can be erratic at times. You can look up his details […] as he was warded some time back due to volatile behaviour at home. He currently has doctor home visits and is better. At the other end in the same house I have an elder brother who is divorced and in depression. Younger brother has OCD and uses natural therapy with his issue.
My main concern is when [my sister] gets home and she will be back to her old self not eating not showering a problem to all. My purpose of this letter is to get her into some day program which she attends and that would be a big help to slowly help her progress.
Could you advise how we can go about this as the home environment is toxic for her and if I need to have her in some program to manage her outside of hospital. I will be back to Singapore in about a months time 4th August and can help her go to this program.
Please be aware that she doesn’t listen to mum and I am the only person who can get her out of the house. If you can manage her at the hospital till I am back or close to then it will be a big help.
A death certificate issued by the Republic of Singapore certified that GFFQ’s father passed away on 4 April 2016.
Boarding passes confirm GFFQ and her child travelled to Singapore on 4 August 2015, and again on 5 April 2016.
On 15 May 2016 GFFQ emailed her tax accountant that:
“I have been away out of the country due to my dad’s passing away. I will need to sort my tax matters and wondered if you had a chance to see my work and what else is needed so I can get this done on my return to Melbourne tomorrow”
On 16 May 2016 GFFQ’s tax accountant emailed: “I will liaise with you in Thursday in taking the next steps”.
On 8 June 2016, GFFQ emailed the IME Singapore to enquire about her brother’s recent discharge from the facility and ongoing case management, as the family was finding it extremely difficult to cope with him at home.
On 3 July 2016, GFFQ received an email from an accountant she had engaged to assist with bookkeeping for her newly established small business.
On 17 September 2016, GFFQ received an email from her new tax accountant advising that her personal and company tax returns for 2015 were ready for signing.
Centrelink records note that GFFQ lodged her income tax returns for the 2014/2015 income year on 20 September 2016.
On 7 October 2016, GFFQ wrote to Centrelink to appeal the non-payment of her FBT top up payment, advising:
I had my child in 2014 and the time when we registered this business with no knowledge in accounting or finance and support. This year I found an accountant and now have an accountant who assists me and now I am slowly learning about taxes and quickbooks and most importantly company tax returns which has delayed my personal tax returns.
I did make 2 calls to centrelink early this year to advise of this. It has been a long hard process with previous accountant leaving me in the lurch at last minute saying he couldn’t help me with taxes due to overload of work.
This was around the time I lost my dad to dementia in April and had to return to Singapore. I did the right thing not to overestimate my income even though I knew with a new business there will be no profit at the start. I was honest and hope today I don’t get penalise for my honesty, for my hardwork to get this business to this point today where I don’t have to rely to centrelink anymore hopefully and also not for my dad passing away causing me into a downward spiral. Please check your records for when I started my psychologist visits. I am good and positive today moving forward to do my best in my business. I believe this reasons are valid for the amount to be refunded to me.
On 16 June 2017, GFFQ received an email from her former accountant confirming that on 10 December 2016 he had refunded her $100 for the withdrawal of his services to assist with lodgement of her personal and company tax returns for the 2014/15 year.
On 15 September 2017, the Bacchus Marsh Magistrates Court made an intervention order against GFFQ’s former husband for 12 months, the order provides he must not:
Commit family violence against the protected person(s).
Intentionally damage any property of the protected person(s) or threaten to do so.
Get another person to do anything the respondent must not do under this order.
On 6 November 2020, GFFQ’s general practitioner provided a report that GFFQ had been facing domestic violence for many years and had been seeing a psychologist since 2017.
On 4 May 2021, the Melbourne Magistrates Court made a final order against GFFQ’s former husband for 3 years. The order provides that he must not:
Commit family violence against the protected person(s).
Intentionally damage any property of the protected person(s) or threaten to do so.
Attempt to locate, follow the protected person(s) or keep him/ her/ them under surveillance.
Publish on the internet, by email or other electronic communication any material about the protected person(s).
Contact or communicate with the first named protected person by any means, other than by text message and/or email with the first named protected person, pertaining to business administration.
Approach or remain within 5 metres of the first named protected person.
Go to or remain within 100 metres of xxx or any other place where a protected person lives, works or attends school.
Get another person to do anything the respondent must not do under this order.
The respondent may:
do anything that is permitted by a Family Law Act order or a written agreement about child arrangements; or
negotiate child arrangements by letter, email or text message; or
communicate with a protected person through a lawyer or mediator; or
arrange and/ or participate in counselling or mediation; or
go to the home of a protected person, in the company of a police officer or a person chosen by the applicant, to collect personal property.
BUT ONLY IF the respondent does not commit family violence while doing so.
On 6 August 2021, GFFQ’s general practitioner provided a report which advised:
GFFQ was consulting me during the period of 2016 to 2017 for mental health issues (depression and generalised anxiety) and was under lot of stress which affected her decision making.
She was also referred to a psychologist and prescribed antidepressants.
CONTENTIONS
Applicant
GFFQ argued that her circumstances were unique, unusual and uncommon, and that they had never been considered by the case law, as her situation was a ‘perfect storm’ of special circumstances. GFFQ outlined that leading up to the late lodgement of her 2014/2015 tax return she had been dealing with a myriad of issues all on her own. She submitted that this combination of factors had reduced her capacity to make rational decisions in managing her day-to-day affairs and had made it impossible for her to lodge her return in time.
GFFQ argued her special circumstances were not just occurring around the time when she was required to lodge her 2014/15 tax return but that her situation had been ongoing for many years. From April to June 2016 she had been completely overwhelmed by circumstances both within and beyond her control. GFFQ argued that what was happening in her life was not normal and should be considered special circumstances. She asserted she should be granted the top-up payment as it was money she was entitled to receive.
GFFQ listed the various factors she considered created her ‘perfect storm’ of special circumstances:
(a)a miscarriage in 2013
(b)caring duties for her mother, sister, brother and father, all of whom have significant mental and physical health issues
(c)the death of her father
(d)an infant child to care for, and a newborn
(e)frequent travel between Australia and Singapore to support her family
(f)traveling internationally with a small child on her own
(g)starting a new business from scratch
(h)the inaction of her first accountant
(i)the appointment of a new accountant and bookkeeper
(j)getting up to speed on all the requirements of running her own business
(k)her lack of knowledge of taxation requirements and her reliance on the advice of her accountant who she trusted as a professional was providing her with accurate information
(l)her business return needed to be completed before she could submit her personal return
(m)her own mental health issues
(n)domestic violence
GFFQ argued that her former husband should play no part in the determination of her eligibility for FBT top-up for the 2014/15 year as he played no part in her life at that time, and they were not a couple during this period. GFFQ advised the hearing about the abuse she had suffered:
Respondent representative: You’re the primary caregiver?
Applicant: Yes, of course.
What is [GFFQ’s former husband]’s involvement with the children?
A: He sees them, he plays with them, but I do all the school drop offs, I do the pickups, I prepare dinner except when they are with him, he cooks for them then, that’s it.
R: Household expenses like gas, electricity, phone, who pays for those in 2014-2015? Did you pay all those expenses or did [former husband] contribute to those?
A: No not him, 2014/2015 nothing came from him, it was my parental leave because he had no income, I would have paid everything, including the bills. All bills, that would have been me.
R: Alright ok. social relationships, did you tell your friends about the problems in your relationship with [former husband] in 2014/2015 period?
A: No, I’m very private about my personal life, except for family. It’s a rosy picture that people see because he’s a very charming person, very popular and good with words so everyone sees this perfect family, no, people don’t see what goes on behind closed doors, except family. The neighbours have known me or years and they’re not aware and they’re next door, even though I’ve run out of the house that many times, taken the car that many times. No one knows.
R: In the 2014-2015 period did [former husband] occupy a separate bedroom to yourself?
A: Yes, he’s always in the master room, he’s got the master room to himself with the attached bathroom. We have been sleeping separately for years, since prior to birth of my second child… With the first one, when she was a baby, I was the one who had the sleepless nights because I had the kids at night. I recall with my first one, when she was three months, having to go to work full time and attending to a three-month-old baby, it was a 60km drive to work, I recall once when I was driving back home because of that lack of sleep and caregiving, I fell asleep, I’m ashamed to say this but I fell asleep behind the wheel of my vehicle and smashed into another car.
R: Looking back at this period, July 2014 to June 2015, was there, in your view, any prospect of getting the relationship back on track?
A: I tried, I tried, but his mental health issues were very unpredictable. There were periods of good times, but then it always follows a period of calm always comes with a storm. I would have a couple weeks of nice weather and then where he would just lash out.
…
R: If the tribunal finds that you were a member of a couple with [former husband] in 2014-2015 period, it then has to examine whether you ceased being a member of a couple after 30 June 2015 in the two subsequent years. In terms of the nature of the relationship you had with [former husband] in the 2014/2015 period was there anything notably different about that relationship in that period than in the later periods? Was the relationship pretty much the same in the subsequent two years, or did it get worse?
A: I think it gets worse; it doesn’t get better. Like I mentioned earlier there are periods good times, but it was followed by really bad periods where the abuse escalates that goes on for weeks or months. You got to understand he didn’t have any work in that period 2014/2015, and a man with no work, you don’t want him anywhere in the house or at home, you can’t imagine his mental state if he’s not having any income, and on top of that there’s the stress of a newborn child. That’s like a time bomb ticking, do you agree?
R: That certainly makes sense. So, the main reason why the relationship got worse in those two years after, was principally what? You said the abuse escalated, anything else?
A: I won’t be talking about the abuse but I will talk about me leaving the house and staying at a friend’s with a baby as well, a child that’s barely a year old, I’m talking about a baby that’s only a couple of months old, I think that’s stressful enough. Then don’t forget the business, I started the business in 2014, that’s a big struggle as well and he’s not helping me.
R: …Just backtracking, in the 2014/2015 period, you tell us [former husband] was not working is that right?
A; No, no.
R: Ok, did he didn’t make any other financial contributions at all to the financial support of the family unit?
A: No, because 2014 that was the time I started the business and he thought he didn’t have to work. That was his impression. The business started June/July 2014, that’s when the business started, we started exactly after her birth. Even after I gave birth to her I had to do everything, I would go on the computer and do the necessary work for the business set-up and everything. I was caring for my newborn child and at the same time I was setting up this company and he wasn’t working because he knew there was this company and he just said we can rely on the business, even though we are starting from scratch.. I remember in 2014, I was switching between my little one, she was a few months old, if I wasn’t caring for her then I would be in the office working on the paperwork for the business, starting it up, reading the manuals, trying to understand how it all works, you know going on ASIC doing the registration, paying the fees, working on the website, it’s not a simple process setting up a business. If there were ten steps to go through, I did all the steps, if I had to use an accountant, I would use an accountant but if I could do it myself I would do that in between caring for this newborn child while I was on this parental leave. Don’t worry about the man, the man sits at home even though there’s no money coming, the money is coming from the paid parental leave.
R: You mentioned the paid parental leave, am I right in that you worked in this period except for when on paid parental leave? Is that right?
A: Yeah, of course, I worked 2014 I was working, August I was still driving into the city, then ten days before my delivery I was instructed by my boss to go this parental leave in September.
…
R: What do you say about how the domestic violence prevented or contributed to your inability to lodge your tax return by 30 June 2015??
A: Like I explained, I had in my care a young child, that period she was barely a year old and this was a new set-up of a business in 2014. So, I had that young child, I had a new set-up of the business, it was quite a lot to deal with besides what’s happening back home. Not forgetting the travels to deal with everything back home. With domestic violence, how do you describe what you go through, you go through really low periods, you think you’re not able to do anything, you think you are not capable because the other party puts you down all the time. There are days when I can’t even go into the office and that’s part of that mental thing that I’ve suffered. There are periods when I’m sleeping in the bed and says Mum you need to get up, and I’m still dealing with that today, as we speak, I’m seeing a specialist for my sleep issues and that has been the consequences of that violence. You know, low self-esteem, inability not able to function. Talk about the tax but even with the girls, I really can’t be focused on them because a lot of the time I’ve been so angry because all that violence that’s been targeted at me. And Sometimes it’s a vicious cycle and it effects the kids as well. I can’t function, I’m not the same person I am, I’m not that same person anymore today talking to you. I’m not that person who came, a fresh, confident, beautiful young woman who took that flight and came to this country. It’s a great country, don’t get me wrong, I love this country. But the man has destroyed me mentally, destroyed me physically, I have such poor self-care that there are days when I don’t shower, I don’t do my hair, I just sleep in. You know that abuse effects me, that I can’t even get into the office and sit down and get any work done…..
Member: Was it arranged?
Applicant: Yes, it was.

GFFQ argued that her mental health condition, combined with her caring responsibilities, greatly impacted her ability to deal with her taxation issues at the time. She advised the Tribunal:
Member: But you have been to see a psychiatrist?
Applicant: Not a psychiatrist, a psychologist. A psychologist, yes, I did but it was A lot earlier, not that period. I have been on anti-depressants since the birth of my first child.
M: Right, did you have Post-Natal Depression?
A: That’s what he says but I don’t think it was post-natal depression. I think it was too much stress. I think it was more him, even though he says it was post-natal, every time I think back on that period, I don’t think it was post-natal. I think it was just not having that support, I had a newborn child, he’s screaming, I remember we were at the rental property, we had just arrived in the country and he was screaming down at me and the neighbour had to come across the road to tell him to calm down.
Respondent representative: The mental health disorder, how would you say it impacted your ability to lodge your tax return?
A: I think when we talk about mental health disorder is that I’m not just dealing with one, I’m dealing with four family members with mental health disorders. I told my friend the other day, I have been a carer to a partner’s who’s …I’ve been a caregiver to my sister who’s got an eating disorder, I’ve also been a caregiver to a brother who’s got OCD, and in that period August 2015 I’ve also been a caregiver for my Dad who’s got dementia because he has been very difficult prior to his passing. I recall, on one of those flights when I had to go back, We had to call the police in because he was out of control in the house, the ambulance coming, I taking my child with me going to the mental health hospital in Singapore. I remember sitting in this chair in this room full of doctors and I had to explain to them what was happening with Dad and the family issues. I remember thinking, why are there so many people in this room, they needed to know the family history, Dad’s depression, the sibling’s issues. It was stressful for me, to represent my family, talking about the family mental health issues to a panel of five mental health experts in front of me. I had to deal with that. That’s the period during the flights, that I had to things like that, dealing with panels of doctors when Dad was out of control and the next thing the doctor called and asked who was representing the family and I’m the one who went into the hospital there
M: How was your mental health impacting you at that stage? Just think about you for a second.
S: I had to be strong, I had to keep pushing myself. It was hard. At times I just collapsed. It impacted my upbringing of my girls. They’re always late for school. Today I’ve got my 12-year-old is blaming me for never really being there. It’s impacted me in my role as a mother to these kids. I cannot be a normal mother because I’m exhausted. Then I’m in Melbourne with this man wrecking me. I collapse, I’ve had periods of collapse. I go to my room and sleep for hours. I’ve got sleep issues, I am seeing a specialist; my days start at 2pm, that’s how my days go, and I can’t deal with it. I have my anti-depressants which I have consistently taken since 2009 but at times I collapse and I don’t function. Even with the company, there are periods where I can’t even sit in the office, there have been months where I can’t even sit down and send invoices to customers, there are months where I can’t do anything. That’s my mental collapse. I just do what I need to do for the girls, I cook for them and drop them to school. But I’m in bed and I’m not functioning like normal, there’s no self-care.
M: So, this is ongoing?
A: Yes this is ongoing, there are things that are not done and they eat into my head every day, and it’s hard to live like that because I’ve always been on top of things as a person, I give my work 100%. It eats at me when I can’t do a task, every day it east into my mind. It’s a horrible way to live, besides the fear than man has created in me. What else can I tell you? I go through periods where I can’t do anything, can’t do any work, I can’t.
GFFQ argued that the challenges associated with starting a new business, combined with the inaction of her first accountant and the need to get a second accountant, all whilst she was attending to the death of her father and family responsibilities back in Singapore, should be considered special circumstances. GFFQ advised the Tribunal:
Respondent rep: When Mr P withdrew his accountancy services, do you know what additional work was necessary to complete the preparation of the tax return?
Applicant: They had done nothing, he had done nothing. He had just asked me to gather the documents, that was about it. I had all the documents ready for him, that was the same month, June 2016, when I was in touch with new accountant. Why would an accountant give me false information, I trust this person, I paid for the professional fees and told him I’m entitled to FTB.
R: Can you say whether Mr P was aware of the 30 June time limit?
A: Of course, most certainly.
R: You were obviously concerned about the lack of progress on behalf of Mr P, did you raise that issue with him in June 2016?
A: Yes, I did. I took immediate action and straight away got a new one. I didn’t sit around for months, doing nothing, I immediately looked for another one, as soon as I found out this one wasn’t responsible.
R: Getting back to my earlier questions, at what point Mr P withdraw his accountancy services?
A: It’s June 2016 because I left the country on the 5^th April 2016 to attend to my Dad’s matters. So 5 April I left, I was in touch with the accountant on the 4^th of April. I sit down before I leave, I take the responsibility, – look at email dated 4 April asking him to look at the attachment and I asked if I was doing it right – then on the next day I’m on a flight out of the country with a child, dealing with more matters out of the country and then as soon as I got back, I tried to get progress, I know it was June because that’s the time when I immediately looked for the new accountant.
R: The information you have provided with regards to your contact with Mr M refers to dates of 29 and 30 June, can you recall when you first contacted Mr M to take over for Mr P?
A: I think it was very close to the end of financial year, let me have a look. I saw him at his address on 22 June 2016 at 2:30pm.
R: So knowing that you first contacted Mr M on 26 June, would that then enable you to recall about the approximate time Mr P withdrew his services?
A: I have answered this question a couple of times, it would be the month of June 2016, I don’t have the exact date.
R: So, when you contacted Mr M on 26 June, did you tell him of the pressing time limit of 20 June?
A: Of course, of course.
R: And what was Mr M’s response? Did he give you an answer?
A: He didn’t tell me that I had to lodge my individual returns. I told him I had this Centrelink payments and he said that can wait, let’s do the company side of things and then we’ll lodge the individual.
R: Do you know why he said that?
A: I don’t know, I don’t understand the law, I don’t understand. Like I said I took over the business in 2014, I trusted the accountant to do his job, so I relied on their information and trust their professional advice. These are certified accountants
Member: When you took over the business, were these people doing business already or did you look for your own?
A: No, I looked for an accountant.
M: So the advice was given to you was, we can hold off on personal one’s, let’s get the company one’s done, they’re more important?
A: Exactly, exactly.
R: Alright. When you first instructed Mr M, given Mr P had done nothing, Mr M had to start from scratch in terms of the work to prepare the returns?
A: Yes, that is what happened. He had to do everything from the beginning because there was nothing exchanged, there was no documents prepared by Mr P, that’s why I had my deposit refunded, I had $100 refunded so there was nothing paid because there was no work done.
R: Now, there’s a reference in the material to you consulting a Mr Patel on 3 July 2016 in relation to bookkeeping. Can you tell me a bit about why you consulted him about bookkeeping?
A: I think that would be on instructions by the second accountant because Mr M does not do bookkeeping, he doesn’t do the bookkeeping side of things. Whatever I was asked to do, I followed, so I followed the accountant’s instructions. So he did my book keeping because I know nothing about this, I relied 100% on these people, I didn’t know anything about Quickbooks. These requirements for the company, no one teaches you, you don’t go to a class, setting up a company is a struggle. I’ve learnt everything from scratch. So as instructed by Mr M to get a bookkeeper to handle that side of things, so I got a bookkeeper. If Mr P had given me that information, I would have done the same thing as well.
M: Your ex-partner was not involved in the business? He wasn’t doing anything?
A: No, he’s never involved in my life.
R: Are you able to say what information was needed with regards to preparation of the company tax return which was relevant to the preparation of your individual tax return?
A: I understand it has something to do with director fees. I also understand, I mean this was a new set up, so basically everything starts from scratch, nothing has been reconciled, no bookkeeping had been done. So there was a lot of work to be done with the accounts, it was all in disarray, nothing has been done, we are talking about ground zero. We had to start from the bottom and reconcile all this. I think he had to put some director’s fees into the individual returns which was why he couldn’t lodge them. One second I think I’ve got that information, Yes, it was the Director fees.
M: Who were the directors?
A: Myself
M: Just you?
A: Yes, I am the director.
R: The information in relation to director’s fees, was there any problem in ascertaining what those fees were? Was there any delay? In preparation of 2015 return? Was that information recorded in a document? Was that information accessible easily or was there some time necessary to gather that information?
A: We had to start from scratch. Nothing had been done with this account. I had to get the bookkeeper to do the business entries. So obviously he couldn’t transcribe it just like that, he had to go through that whole- all those figures had to be reconciled.
M: So when you bought the business, What process did you go through with transferring and buying the business at that stage?
A: That’s it, I started from scratch, there was no buying it.
M: So you registered a business, it wasn’t an existing business. So what he’s said to you is, I can’t do your personal return until I know what you’ve actually earned from the company?
A: That’s correct, yep.
M: So if you’re the sole director, and what your income is, is your director’s fees because you weren’t drawing a salary from the business at that stage?
A: Yep.
M: You weren’t actually paying yourself?
A: No, no, that’s correct.
Respondent
The Respondent submitted that GFFQ had asserted that a combination of the following circumstances prevented lodgement of her tax return by 30 June 2016:
(a)The passing of her father
(b)Withdrawal of the accountancy services of her first account and the requirement to instruct a new accountant
(c)Inability to lodge individual tax return before finalisation of the company tax return
(d)Mental ill health condition
(e)Domestic violence
(f)Caring for her siblings
The Respondent accepted that GFFQ had provided evidence of her mental health condition, noting:
(a)the mental health care plan dated 9 August 2016;
(b)Dr B’s mental health referrals (with a history of anxiety and depression and consulting a psychologist in November 2016) in August 2016 and November 2016; and
(c)Dr B‘s report dated 6 November 2020 that GFFQ suffered from domestic violence for many years and had seen a psychologist since 2017, and that GFFQ’s day-to- day activities were impacted.
The Respondent submitted that despite GFFQ’s doctor’s report of 6 August 2021, which opined her mental health issues were impacting her decision making, she had been able to instruct and communicate with two accountants and operate her business albeit with intermittent absenteeism. The Respondent contented that this demonstrated GFFQ had capacity to make rational decisions in managing her day-to-day affairs, particularly the lodgement of the 2014/2015 tax return by 30 June 2016.
The Respondent contended that GFFQ’s doctor had not expressed a view about whether her mental health issues so affected her decision making that she was “prevented” from lodging the 2014/2015 tax return by 30 June 2016.
The Respondent took the Tribunal to the matter of Singleton and Secretary, Department of Social Services [2019] AATA 766, where the Tribunal stated at [42]:
The special circumstances must have been such that they served as an insurmountable block, hindrance or impediment to the lodgement taking place within the required time frame.
The Respondent submitted that despite the absence of evidence from the treating psychologist, it was open to the Tribunal to find GFFQ’s mental health condition was a special circumstance. However, the Respondent contended that there was insufficient evidence to conclude that the condition ‘prevented’ lodgement of the tax return by 30 June 2016.
The Respondent took the Tribunal to the following determinations on this point:
(d)In Dean and Department of Education, Science and Training (2005) 87 ALD 779 at [59]-[61], the Tribunal provided the following analysis pf previous Tribunal decisions and concluded that an assessment of ‘special circumstances’ involved consideration of the impact of the medical condition on the person’s ‘capacity to make rational decisions in managing their day to day affairs’:
59 In making the conclusion that "special circumstances" apply for part of the period that Austudy overpayments were made to Mr Dean , the Tribunal had given due regard to the following legal principle as to the breadth of the discretion in relation to "special circumstances":
The Full Federal Court, in Riddell v Secretary, Department of Social Security; (1993) 42 FCR 443 at 450 commented:
"Each particular case must be considered on its merits. It is the essential nature of the provision to create a broad discretion to meet the great variety of circumstances which must occur, raising considerations of individual hardship, need, fairness, reasonableness, and whatever else may move an administrator, keeping in mind the scope and purposes of the Act, to make a decision one way or the other."
60. Accordingly, in the context of Riddell’s case, and an analysis of cases decided by the Tribunal as to the circumstances which fall within the meaning of "special circumstances" because of the impacts of the medical condition on the social security recipients, the following principles emerge:
(a) Woodward and Department of Family and Community Services [2001] AATA 818
The Tribunal found that the applicant who was suffering from emotional and psychological trauma at the time of overpayments of social security benefits had been impaired to the extent she was unable to manage her affairs. The Tribunal accepted that during the period the applicant was distraught and disorganised, she was severely depressed and distressed in her factual circumstances.
(b) Secretary, Department of Family and Community Services and Temesgea [2002] AATA 1290
The Tribunal found "special circumstances" to apply because of the "respondent’s prevailing state of mental and emotional distress at the time the debt was incurred" [reducing the respondent’s ability to understand his obligations and responsibilities under the Act];
(c) Hill and Secretary, Department of Family and Community Services [1999] AATA 909
At the relevant time, the applicant was being treated for "severe depression". The Tribunal accepted the medical opinion evidence that the applicant was "capable of rational decision making although his cognitive functioning is impaired by his medication and his depression and that ["the applicant] has trouble thinking rationally" and "exhibits confusion and difficulty with decision-making". In its conclusion that "special circumstances" applied, the Tribunal accepted that the applicant was "not capable of great feats of rational thought and has impaired cognitive functions"; and
(d) Secretary, Department of Social Security and Winters (unreported, AATA, Member SM Bullock, No 12518, 23 December 1997):
The Tribunal concluded that there were "special circumstances" operating in the life of the applicant at the time overpayments of social security were made. The Tribunal concluded that the impacts of her psychiatric state (depression, schizophrenia) on her actions to act impulsively, panic and depression, were "special".
61.Accordingly, with respect to "special circumstances", the application of the law in cases decided by the Tribunal involves a consideration of the impacts of the medical condition on the Social Security recipient’s capacity to make rational decisions in managing their day to day affairs
(e)Cobbin and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 433 at [62], the Tribunal approved of the Dean approach to the assessment of special circumstances.
(f) In Lineham and Secretary, Department of Social Services [2016] AATA 127 at [20-[22], the Tribunal considered the impact of Mr Lineham’s mental health condition upon the late lodgement of his tax return in the context of section 32D of the Act. Mr Lineham suffered from depression following separation from his wife and the suicide of a close friend. Mr Lineham claimed that his mental health prevented lodging his tax return within the required timeframe. The Tribunal was not satisfied that there was sufficient evidence to sustain a finding of special circumstances and relevantly stated:
20. Without medical or psychological evidence I have nothing of an independent nature which can corroborate Mr Lineham’s claimed state of mind at the time when his tax return was due for lodging.
21. I am not in a position therefore to say whether, at that time, he was truly suffering from depression or not – as opposed to being merely sad or very upset. The difference between the two is critical in my view. Depression can be a very disabling condition but sadness – even great sadness – is not an uncommon everyday occurrence.
22. If I could be satisfied Mr Lineham was suffering depression as such which was clinically diagnosed at the time, I might readily enough be able to find special circumstances. His depressed mental state could then be said possibly to have prevented him from lodging his return on time.
(g)In Sami and Secretary, Department of Social Services [2016] AATA 636, Mrs Sami’s treating psychologist reported that “due to the circumstances around her termination case with FairWork (her) depression is really bad and affected her concentration, memory…her husband, 3 children and home rely on her for the welfare of the family and it has affected (her) taking on that responsibility alone being unemployed, depressed than [sic] holding a full time job”. Mrs Sami’s evidence included dismissal from her long-time job in March 2012; proceedings in Fair Work Australia; part time employment from November 2012 to August 2013, and then full-time work.
(h)In Iskenderian and Secretary, Department of Social Services [2016] AATA 717 at [27], the Tribunal relevantly stated:
…she has not provided any contemporary corroborating medical evidence in support of her contention that she was suffering from a post-natal depression condition which prevented her from lodging her and her partner's income tax return for the 2012/2013 financial year by 30 June 2014, as required by s 32C of the Administration Act. Indeed, on her own evidence, Ms Iskenderian 's post-natal depression condition was undiagnosed at the relevant time. Without independent contemporary medical/psychological evidence corroborating that Ms Iskenderian had post-natal depression at the relevant time the Tribunal is unable to find that Ms Iskenderian 's mental state constituted "special circumstances" which prevented her from lodging her 2012/2013 income tax returns by the due date…
(i)The Tribunal in Bondzulic and Secretary, Department of Social Services [2017] AATA 455 considered whether special circumstances prevented lodgement of the 2013-2014 tax returns of Mrs Bondzulic and her partner by the due date. The Tribunal concluded that there were special circumstances:
37. While it is true, and regrettable, that many such cases involve ill health and associated financial and emotional pressures, there are a number of aspects peculiar to the present case which lead me to believe that their convergence amounts to “special circumstances”. Mr Leach’s illness was sudden, unexpected and serious. The post-operative treatment was both lengthy and costly. No doubt, those factors together heightened the emotional and financial stress that Mrs Bondzulic and Mr Leach would have been experiencing. As if that were not enough, Mrs Bondzulic had to keep their small business operating, as well manage the everyday demands of her family (a convalescing Mr Leach and their two adolescent children). When those various matters are taken together, I believe the circumstances are sufficiently unusual or out of the ordinary to warrant being described as “special”.
However, those circumstances did not prevent lodgment of the tax returns by the due date. In relation to Mrs Bondzulic’s failure to timely lodge her tax return, the Tribunal stated:
42. While I do not dispute that Mrs Bondzulic was suffering from a generalised anxiety disorder, I am not satisfied that it, or her associated circumstances, were responsible for the tax returns not being lodged by the required date…
44. Second, notwithstanding her condition, it is clear that Mrs Bondzulic was capable of assessing issues for herself and prioritising them before deciding on a course of action (or inaction). She was very much alive to the need to keep the business running throughout the relevant time and the importance of being available to attend to guests. She was able to rely on the advice and support of her bookkeeper who reminded her of the importance of her trust account obligations. Faced with the financial implications of her husband’s illness and the cost of its treatment, she organised the early release of superannuation on compassionate grounds. While there is no direct evidence on the point, she presumably played a role in arranging for her husband’s surgery to be performed at RBWH at no cost (compared with the $25,000.00 estimate received for surgery in the private health system). In the accounting and tax area, she resigned herself to the fact that “everything was late”, including the business’ BAS, saying that “nothing mattered”. Similarly, when asked by the Secretary’s advocate if she would have acted sooner had she known that she could be out of pocket for FTB entitlements, she replied “no”, repeating that “nothing mattered”. In short, in spite of her anxiety disorder, Mrs Bondzulic demonstrated throughout the period an ability to identify priorities and address a range of different matters, while leaving others for another time. It was within her capacity to arrange for the returns to be lodged by the required date.
(j)In Burgess and Secretary, Department of Social Services [2017] AATA 525, the Tribunal concluded that the Applicant's mental state and marital issues did not prevent lodgement of tax returns by the due date. The Tribunal noted that there was no corroborative medical evidence of the mental condition; the Applicant did not seek treatment for the condition; she assisted in the preparation and lodgement of business activity statements for her husband's business; and she cared for her 4 children:
43.The difficulty with assessing the impact on Ms Burgess ' mental health at the relevant time and whether it prevented her from filing her tax returns in time, is that there is no corroborating medical evidence.
44.Marital issues and busy work and family commitments and the normal vicissitudes of life are not "uncommon", "out of the ordinary", or "exceptional" circumstances. They are not, generally, "special circumstances" for the purposes of the Act.
45.I note the Full Federal Court decision in Secretary, Department of Social Security v O'Connell; Secretary, Department of Social Security v Sevel [1992] FCA 559; (1992) 38 FCR 540 where the Court noted that (at p 546):
Given the evident parliamentary intention to protect the interests of dependent children, an interpretation of the Act leading to a loss of allowance by qualified people should be adopted only in the clearest of cases.
46.However, whilst it is understandable that Ms Burgess was going through a difficult and emotional period between March 2015 and June 2015, having discovered her husband's infidelity, there is no medical evidence to corroborate that the impact of that occurrence was such that Ms Burgess was not capable of arranging for her tax returns to be completed.
47.Ms Burgess says she did not seek medical treatment for her mental state at that time because she did not want, and does not agree with taking, medication. However, if she was in such a bad way that her mental state was impacting to such a degree on her ability to think clearly, it is surprising that no treatment or counselling was sought. Further, Ms Burgess acknowledged she was still able to care for her 4 children at that time and was preparing and lodging business activity statements and providing other bookkeeping assistance for her husband's business.
(k)The Tribunal in Secretary, Department of Social Services and Tseng [2017] AATA 1087 considered whether special circumstances prevented lodgement of the 2013-2014 tax return of Ms Tseng’s partner (Mr Mac) by the due date. Mr Mac asserted special circumstances on the basis of mental illness, work commitments and the need to deal with a complex business structure, combined to prevent him focusing on the need to meet the statutory deadline for lodgement of his tax return. He provided medical evidence that he suffered from anxiety and depression. Despite Mr Mac’s worsening depression from the middle of 2014, he continued to operate his business (in partnership) until its sale in mid-2016, with only intermittent absences due to mental ill-health. The Tribunal found there were no special circumstances:
23. In the Tribunal's opinion, special circumstances did not exist, in the sense referred to in section 32D of the Act, which warrant an extension of time for the submission of a tax return. The Tribunal accepts that Mr Mac was subjected to a range of stresses, that he was preoccupied in running his business and that he was suffering a degree of undiagnosed anxiety or depression. These pressures, however, are not of themselves unusual; and they are not, in this Tribunal's opinion, sufficient to take Mr Mac out of the realm of the ordinary.

The Respondent contended that following the Dean and Cobbin decisions, an assessment of “special circumstances” depends on the impact of the mental health condition on the Applicant’s ‘capacity to make rational decisions in managing her day-to-day affairs’.
The Respondent contended GFFQ’s mental health issues did not prevent her from lodging her 2014/2015 tax return by 30 June 2016.
The Respondent accepted that GFFQ had provided evidence of her allegations of domestic violence noting:
(a)The intervention orders dated 15 September 2017 and 16 May 2021; and
(b)GFFQ’s statement dated 4 May 2021 that her former husband had been emotionally and psychologically abusive throughout their 14 years of marriage, with two incidents of physical violence.
The Respondent accepted that domestic violence can constitute special circumstances. However, they contended there was insufficient evidence for the Tribunal to find that the alleged domestic violence perpetrated by GFFQ’s former husband had “prevented” lodgement of her 2015 tax return by 30 June 2016.
The Respondent contended that the change of accountant was not a special circumstance. In any event, it did not prevent lodgement of the Applicant’s tax return by 30 June 2016.
The Respondent referred the Tribunal to the following decisions:
(c)The Tribunal in Secretary, Department of Social Services and Elrington [2016] AATA 169 stated:
27 I find that Mr Elrington went to his accountants’ offices in early May 2014 with information so that they could prepare his income tax return for the year ended 30 June 2013. The accountants moved their offices to an adjoining office in the ensuing months and did not lodge his return before 30 June 2014. I accept that Mr Elrington gave the accountants all of the information they needed and that he told them that the return had to be lodged by 30 June 2014 for FTB purposes. While I also accept that his accountants’ oversight in lodging his income tax return was due to their moving from one location to another, I do not accept that their failure to lodge it was beyond his control. Mr Elrington knew that it was crucial that he lodge his income tax return by 30 June 2014. The Department had sent him a lengthy note emphasising the necessity of doing so. It had sent that note on 21 March 2014 and followed it up with an SMS dated 30 May 2014. Mr Elrington has not suggested that he did not receive those notices.[20]
28 There is no evidence that Mr Elrington had received notice from his accountants asking him to make a declaration that the information in the income tax return was true and correct and that he had authorised the accountants to lodge the approved income tax return. Although it may be made by email or in hard copy, a taxpayer cannot give a blanket declaration but must make a fresh one each time an income tax return is lodged by accountants or a tax agent on his or her behalf. If he had not been asked for a declaration, that should have made him question whether his accountants had lodged his return. Mr Elrington has not said that he contacted his accountants as 30 June 2014 drew near to enquire about whether they had lodged his income tax return. Given the notices he had been given by the Department as to the consequences of his not lodging his income tax return by 30 June 2014, Mr Elrington could, I find, be expected to have contacted his accountants to check whether his income tax return had been lodged. As he did not, I find, there is nothing in Mr Elrington ’s circumstances that enable them to be characterised as special circumstances. Therefore, I find that Mr Elrington has not met the reconciliation condition in s 32C(1)(c)(ii) of the FA Administration Act and he is not entitled to the FTB supplement and top up of FTB for the 2012/2013 year of income.
(d)The Tribunal in Secretary, Department of Social Services and Bleeker [2016] AATA 290 stated:
18 Growth Focus Accounting in a letter dated 12 February 2015 remarked: “At this stage both our office and our clients were unaware that this would cause problems with the FTB payments”. However, the respondent had been sent a letter on 21 March 2014 and an email on 30 May 2014 to advise her of the changed reconciliation procedures. While I accept that the tax agent had not promptly lodged the income tax returns because of the upgrade in the office software, I am not satisfied that the failure to lodge it was beyond the control of the applicant who was informed by Centrelink that it was important that the income tax returns be lodged by 30 June 2014.
20 The respondent has confirmed that she did not ensure that the tax returns were lodged on time. She could have sought confirmation from the tax agent that the tax returns were lodged by 30 June 2014 because she had been advised of the importance of lodging the returns on time.
21 I do not find the circumstances of the respondent are special circumstances…
(e)The Tribunal in Nicholson and Secretary, Department of Social Services [2016] AATA 630 stated:
56 A taxpayer is responsible for ensuring that they lodge returns on time, regardless of what their accountant does or does not do. It is for the taxpayer to ensure their accountant is doing what he or she is being paid to do and on time.
(f)The Tribunal in Bisceglie and Secretary, Department of Social Services [2016] AATA 294 stated:
26 The Tribunal notes that Ms Di Bisceglie did not engage an accountant until September 2014 and did not complete her 2012/2013 income tax return until 10 September 2014. In these circumstances, there was nothing “unusual, uncommon or exceptional” in the fact that the tax return was lodged after the 30 June 2014 deadline. Any unfairness or injustice was the result of Ms Di Bisceglie ’s delay in taking the steps necessary to ensure her tax return was lodged within the required period. These were not circumstances which prevented Ms Di Bisceglie from lodging her tax returns.
27 Whilst the Tribunal acknowledges that the circumstances in which Ms Di Bisceglie found herself in the relevant period may have been challenging, including juggling running a business, dealing with “many problems” in managing the business (including the need to re-program a new cash register, delays in lodging the quarterly BASs to the ATO), working long hours (i.e. 7am to 4.30pm, six days a week), dealing with associated paperwork, having family health issues (i.e. helping care for her father who was diagnosed with Alzheimer’s disease) and caring for small school-age children, the Tribunal finds that none of those circumstances are so “unusual” or “uncommon” so as to make them “out of the ordinary” or “special”.
28 For the above reasons, the Tribunal finds that no “special circumstances” existed in Ms Di Bisceglie ’s case and, further, that there were no “special circumstances” that “prevented” Ms Di Bisceglie and her husband from lodging their 2012/2013 income tax returns with the ATO by the statutory deadline of 30 June 2014. As such, Ms Di Bisceglie is not entitled to FTB “top up” payment for the 2012/2013 income year.
(g)The Tribunal in Berges and Secretary, Department of Social Services [2020] AATA 3507 stated, with regard to the relevance of special circumstances to complex financial transactions:
51 The Tribunal found that the following elements:
(a) The applicant’s increased paperwork workload relating to her partner’s small business; (b) The workload relating to the applicant and her partner’s seven investment properties;
And
(c) The complexity of the applicant’s and her partner’s tax affairs with a trust, a small business and a self- managed superannuation fund;
are not relevant considerations as special circumstances in relation to the applicant managing their FTB obligations because they are the normal obligations of any taxpayer who chooses to operate such entities.
The Respondent contended that GFFQ’s inability to lodge her personal income tax return because her business return had not been finalised did not constitute special circumstances. The Respondent submitted the Tribunal should adopt the findings of AAT1, which found:
19. The tribunal is sympathetic to the difficult family circumstances encountered by GFFQ in April 2016 and accepts that it impacted on her emotional state at the time. However, the email from the original accountant, Mr P, requested financial records for the company in respect of the 2014/2015 year on 22 March 2016. This is some nine months following the end of the 2014/2015 year. It was open to GFFQ to choose to get the finances of …in order from July 2015. The tribunal accepts that starting up a company is a steep learning curve. However, many people commence new businesses through various structures every year and must abide by the taxation laws to lodge the returns in a timely manner. In respect of the 2014/2015 year, when lodging through a registered taxation agent, that date is 15 May 2016. The ATO website sets out clearly that while it is possible to have a concessional arrangement where you will not have to pay failure to lodge on time penalties if you lodge late, the lodgement end date itself is not extended. In addition, in Re Baronessa and SDFaCS (2003) and Re Hopkins and SDFaCS (2004), the tribunal made it clear that the fact that the ATO accepted a late return did not affect the operation of the family assistance legislation. In any event, …is a registered company, not a sole trader. As such, the business finances are not recorded in the individual tax returns. Therefore, the tribunal sees no reason why GFFQ and her husband were unable to lodge their personal income tax returns recording the wages drawn from .. during the 2014/2015 year before finalising the …income tax return.
20. The tribunal carefully considered the circumstances surrounding the late lodgement of Mr and GFFQ’s income tax returns for the 2014/2015 year. The tribunal accepts that the passing of GFFQ’s father and Mr P withdrawing his services late in May 2016 were events beyond the control of GFFQ. However, the decision to delay attending to her taxation affairs for almost nine months is a decision well within GFFQ’s control. The tribunal is satisfied that it was open to GFFQ to commence meetings with an accountant in respect of the taxation affairs of … in July 2015, in particular given her uncertainty surrounding operation and record-keeping of a new business. The tribunal finds that commencement of a new business and the associated learning curve does not create special circumstances that prevented Mr and GFFQ from attending to their taxation affairs at an earlier date and lodging their income tax returns by 30 June 2016. Consequently, the tribunal, standing in the shoes of the Secretary, has no discretion under subparagraph 32C(3)(b) of the Administration Act to allow a further period for lodgement beyond 30 June 2016 of Mr and GFFQ’s 2014/2015 income tax returns.
The Respondent contended that the passing of GFFQ’s father did not constitute special circumstances but was more appropriately characterised as a vicissitude of life.
The Respondent contended that GFFQ’s caring responsibilities for her siblings did not constitute special circumstances and referred the Tribunal to the following decisions:
(h)In Gammaldi and Secretary, Department of Social Services [2016] AATA 1028, the Tribunal stated:
30. The Tribunal accepts that the 2013/2014 financial year was a difficult one for the family and for Mr Gammaldi. The Tribunal is, however, not satisfied that the situation and responsibilities faced by Mr Gammaldi prevented him from lodging a tax return by 30 June 2014. It could certainly have been a low priority in his life to think or worry about his tax return and the consequences of late lodgement while his wife and youngest child faced health problems and he himself faced increased family responsibilities and business challenges. However, being distracted from lodging the tax return by the prescribed date due to such events is not, in the Tribunal's view, an uncommon or unusual occurrence. The Tribunal is therefore not satisfied that the family's difficulties constitute special circumstances that prevented lodgement by the due date of the tax return.
(i)In Crabtree and Secretary, Department of Social Services [2017] AATA 1024 at [41], the Tribunal stated:
Whilst there is little doubt Mrs Crabtree had to deal with many "problems", including the very serious matters relating to her father's health, coupled with working, travelling, and caring for young children, the Tribunal does not find that those circumstances were "unusual" or "uncommon" so as to make them "out of the ordinary" or "special".
The Respondent submitted that while it was open to the Tribunal to find GFFQ’s mental health condition and domestic violence issues constitute special circumstances, there was insufficient evidence for the Tribunal to conclude that special circumstances prevented lodgement of the Applicant’s individual tax return for the 2014/2015 financial year by 30 June 2016.
The Respondent contended it was unclear upon what special circumstances GFFQ’s former husband relied. The Respondent contends that there was no evidentiary basis for the Tribunal to find that special circumstances prevented lodgement of GFFQ’s former husband’s 2015 tax return by 30 June 2016.
The Respondent submitted the Tribunal could not be satisfied on the available evidence that GFFQ’s circumstances (apart from the mental health disorder and domestic violence issues), were 'special' or, if special, that they prevented lodgement of her individual tax return for the 2014/ 2015 income year by 30 June 2016.
Accordingly, the Respondent contended the discretion in s 32C(3)(b) of the Act was not enlivened. Consequently, GFFQ was not entitled to receive the FTB supplement and top up payments of $5,340.06 for the 2014-2015 income year.
CONSIDERATION
The Tribunal finds that GFFQ had lodged her personal tax return for the 2014/2015 year on 20 September 2016 which was outside the allowable time to lodge tax returns to receive a FTB top-up payment. GFFQ’s needed to submit her return within 12 months of the relevant income year, which was 30 June 2016. Accordingly, she lodged her return 3 months late.
The Tribunal accepts Centrelink’s determination that GFFQ’s total FTB benefit was $8,852.48; of which she had received $3,512.42 by fortnightly instalments, based on her estimated income for that period. The Tribunal finds that GFFQ was not entitled to receive her full entitlement to FTB as she had not lodged her 2014/15 tax return in time to satisfy section 32C and 32D of the Act. Therefore, the Tribunal determines that GFFQ was not eligible to her top-up payment of $5,340.06
As such, for GFFQ to receive a top up payment, her relevant reconciliation time needs to be extended by the Tribunal, standing in the shoes of the original decision maker, to 20 September 2016. For the Tribunal to extend this period it must be satisfied that there were special circumstances that prevented GFFQ from lodging her return before the end of that first income year, to satisfy section 32C(3)(b) of the Act.
In addition to this requirement, the Tribunal must also determine if GFFQ was not a member of a couple during this period to exclude the requirement to consider her former husband’s inability to lodge his 2014/15 income tax return, as GFFQ’s claim for FTB was originally lodged with her former husband.
Member of a Couple
The Tribunal accepts GFFQ’s evidence that during this period, while she and her husband were living under the one roof, they were not a member of a couple. GFFQ advised the Tribunal that:
(a)she was making all mortgage repayments at the time (and continues to do so even though she and the children have left the family home). She was paying all her expenses as she was on paid maternity leave and her former husband was not working. That at the time she had a joint account with her former husband but has subsequently gotten her own.
(b)she did all the work in the home, was responsible for all the care of the children and ran the business, as her husband claimed he was not required to assist with any of these duties.
(c)she was a very private person and did not want people to know her situation, but on occasions over the year’s neighbours had telephoned the police to come to her aid and on numerous occasions she had been required to flee the house with the children.
(d)she and her husband had not shared a bedroom since the birth of their first child.
(e)she had tried to get her marriage back on track but her former husband’s mental health issues were very unpredictable. She advised there were some good times; but a period of calm always came with a storm where he would lash out; that he had outbursts where he destroyed the kitchen; that he had presented with manic episodes during the relationships; and that finally she decided to end the marriage after her friend told her “she had to get out of there or you’re going to be killed”..
The Tribunal considers that, at the time in question, GFFQ was not a member of a couple but was living in a precarious situation in which she was dealing with the erratic and unpredictable behaviour of her former husband. The Tribunal accepts as corroborating evidence of these claims the intervention orders made by the Magistrates Court.
Special circumstances
The expression ’special circumstances’ where they appear in sections 32C and 32D are not defined in the Act or related legislation. However, the meaning of “special circumstances” has been considered extensively by the Federal Court and the Tribunal; examples of which follow:
(a)Beadle and Director-General of Social Security (1984) 6 ALD 1 at 3, where the Administrative Appeals Tribunal stated:
...An expression such as "special circumstances" is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special...
(b)Groth and Secretary, Department of Social Security (1995) 37 ALD 797, where the Federal Court stated at 545:
...The phrase "special circumstances", it has been said, although imprecise is sufficiently understood not to require judicial gloss...it is sufficient to observe that it would require something to distinguish Mr Groth's case from others, to take it out of the usual or ordinary case. That was, I consider, the only enquiry to be undertaken in this case. It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary. The enquiry I have referred to would involve considering what would be the effect, if the provision in question or the principle of liability it creates, is applied...
(c)Dranichnikov v Centrelink (2003) 75 ALD 134, where the Full Federal Court stated at [66] :
… Other cases which have considered analogous words such as "special reasons" has tended to conclude, albeit in different contexts, that what is required will be circumstances which distinguish the case in consideration from the usual case. There will be a requirement that the circumstances are such that takes the case out of the ordinary…
(d)Angelakos and Secretary Department of Employment and Workplace Relations (2007) 100 ALD 9, where the Federal Court stated at [33]:
… There is less risk of overstatement if the words "unusual" or "uncommon" are emphasised. Those words indicate, correctly in my view, the fact that there must be something that distinguishes the case from the ordinary or usual case.
(e)Davy and Secretary, Department of Employment and Workplace Relations (2007) 94 ALD 693, where Deputy President Forgie of the Tribunal stated at [80]:
… "special circumstances" are not merely directed to the person's own circumstances. Rather, they are directed to those that are "special circumstances… that make it desirable to waive". That necessarily requires a consideration of the person's individual circumstances but also a consideration of the general administration of the social security system. Waiver of the debt would mean that Mr Davy would have had the benefit of part of his DSP in circumstances in which he was not entitled to it… He has had the benefit of the money and there is no injustice in requiring him to repay the money of which he has had the benefit but not the entitlement… The system of administration of the Social Security Act does not visit any injustice for many if not all social security recipients but it did not lead to any injustice or unfairness on Mr Davy that is not visited, or potentially visited, upon all other recipients of social security payments under the Act. Therefore, I am not satisfied that there are special circumstances that make it desirable to waive the debt under s1237AAD of the Act…
(f)In Ryde v Sec Department of Family and Community Services [2005] FCA 886, where Branson J said:
…the evident purpose of s 1237AAD is to enable a flexible response to the wide range of circumstances which could give rise to hardship or unfairness, the statutory requirement for special circumstances discloses an intention to proscribe waiver in ordinary cases. The hardship or unfairness to which French J referred must be understood to be hardship or unfairness sufficient to justify departure from the general rule in the particular case.

In summary, it has been held that for circumstances to constitute “special circumstances” the circumstances must be “unusual, uncommon or exceptional”, “markedly different from the usual run of cases”, “special”, or “out of the ordinary”, and they include “events which would render the strict application of the rule in question unfair or inappropriate”.
In respect of special circumstances in the case of a late claim for FTB, the Tribunal has found on numerous occasions that there is a more stringent two-part test. As the lodgements of tax returns are the responsibility of the individual, including those who lodge via a tax agent, failure by an accountant or tax agent to lodge a tax return within the lodgement period will not ordinarily constitute special circumstances.
Deputy President Humphreys in Secretary, Department of Social Services and Hollis [2015] AATA 941 stated at [30]-[31]:
However, Dr Hollis needs to show more than that the circumstances she faced were special. In Hooker and Secretary, Department of Social Services [2015] AATA 732 Senior Member Toohey considered the test in s 10(2) of the Act, which imposes a similar test for late lodgement of a claim for family tax benefit to the test in s 49J(2). She observed (at [19]):
In the case of a late claim for FTB, the special circumstances must prevent a person from making a claim on time. That is a more stringent, two-part test.
In order for the time for making a claim to be extended, the secretary (and in turn the Tribunal) must be satisfied of two things: first, that circumstances existed that were special and, secondly, that those special circumstances prevented the claimant from making her claim within time.
Special Circumstances Existed
The Tribunal finds that GFFQ was suffering from a multitude of factors which individually may be considered the normal vicissitude of life; and tragically some of the pressures she faced may not of themselves be considered unusual. However, in this case it was, as GFFQ described, the perfect storm of circumstances which the Tribunal considers to be so unusual as to take them out of the ordinary.
The Tribunal concludes that GFFQ’s circumstances, as the Full Court described in Dranichnikov,, distinguish her case when considered in the context of the usual cases; and finds that her set of circumstances were such that it took them out of the ordinary.
The Tribunal finds that the long term systemic domestic violence GFFQ had been subjected to by her former husband for what appears to be the entirety of their marriage was not the norm or common. The Tribunal, whilst all too aware that domestic violence and complex family breakdowns are sadly not extortionary, the Tribunal does not accept they should be considered the norm. As such, the Tribunal found GFFQ was experiencing a set of circumstances at the time which took her situation out of the ordinary, including her experience of domestic violence. The Tribunal had the evidence of GFFQ’s treating doctor, the intervention orders made by the courts, and her own testimony to arrive at a conclusion that this situation was impacting her during the time she was required to lodge her 2014/15 tax return.
The Tribunal finds GFFQ’s was suffering from mental health issues during the period, as verified by her general practitioner and psychologist, and for which she was receiving counselling and taking anti-depressant medication. The Tribunal considers that while her mental health issues on their own may not constitute special circumstance, as many people live with such conditions, when put together with her numerous other issues, they form part of the combination of factors to be considered special circumstances.
The Tribunal finds GFFQ’s caring responsibilities for her family in Singapore and the death of her father, as verified by emails with IME in Singapore, boarding passes and a death certificate, again on their own may not constitute special circumstance, as many migrants in Australia deal with the complexity of family issues remotely. However, when put together with her numerous other issues, these responsibilities formed part of the combination of factors to be considered special circumstances.
The Tribunal does not agree with the findings of AAT1 that GFFQ had failed to take action on her taxation issues for 12 months in advance of lodgement. The Tribunal finds GFFQ had attempted to deal with her taxation issue before the required date of lodgement, as evidenced by her emails with her former accountant. The Tribunal does not consider the failure of GFFQ’s former accountant, the issue of finding a new accountant, and relying upon the new accountant’s advice amount to special circumstances. The law and the Guide are clear that it is an individual’s responsibility to lodge their own return. The Guide states at 6.4.3
Note: Lodgement of tax returns are the responsibility of the individual, including those who lodge via a tax agent. Providing financial statements to a tax agent or accountant prior to 30 June of the relevant lodgement year does not constitute lodgement of tax returns. Extensions to the tax lodgement period may be granted if there are special circumstances that prevent an individual from lodging their tax return before the end of the lodgement year. Special circumstances are circumstances that are unusual, uncommon or exceptional. Failure by an accountant or tax agent to lodge a tax return within the lodgement period (e.g. forgetting to lodge in time or delay due to high workloads) will not ordinarily constitute special circumstances.
Additionally, the Tribunal does not consider GFFQ’s decision to set up a new business was special circumstances, as this was within her control.
However, the Tribunal finds that establishing the business, dealing with the relevant paper work, the inaction of her first accountant, finding a new accountant, relying on the new accountant’s professional advice, and securing a bookkeeper were adding to the already considerable stresses she was experiencing at this time; and these issues do form part of combination of factors to be considered special circumstances.
Special Circumstances Prevented lodgement of GFFQ’s claim
The Tribunal finds that GFFQ’s complex set of circumstances prevented her from lodging her 2014/15 tax return by 30 June 2016. The Tribunal relies on the case of Sami, referred to by the Respondent in their submission, where the Member found:
33. I am satisfied that the series of events that occurred during the period March 2012 to 30 June 2014 had a significant impact on Mrs Sami 's capacity to meet the relevant requirement during the time allowed. In this period she suffered a back injury, lost her job in difficult circumstances, underwent court proceedings, and suffered from depression and panic attacks, all while caring for her husband and their three children.
34 While each circumstance alone may not be seen as unusual or uncommon, a combination of a number of serious circumstances such as these makes this case unique. I am satisfied that there were special circumstances that prevented the claimant from making a claim by the statutory time period for the 2012/13 income year.
In respect of GFFQ, the Tribunal finds that during the period from June 2015 to 30 June 2016, the combination of events had a significant impact on GFFQ’s ability to meet the relevant requirements of the Act to qualify for FTB top-up for the 2014/15 year.
Whilst the evidence of domestic violence alone may not have prevented GFFQ from lodging her 2014/2015 tax return by 30 June 2016, it was a significant factor in the storm of events bearing down on GFFQ at this particular time.
Additionally, while GFFQ’s mental health issues alone were not so affecting her decision making that she was “prevented” from lodging the 2014/2015 tax return by 30 June 2016 they were a significant factor in the storm of events bearing down on GFFQ at this particular time.
To summarise, the Tribunal finds that in this period GFFQ was managing the care of her sister remotely, she was suffering from a significant complex issue of domestic violence, she was dealing with the health issues of her father remotely (and his subsequent death), she had to travel to Singapore with a small child on several occasions, she was dealing with her own mental health issues, she was providing care for her mother remotely, she was managing the care of her brother remotely, she had taken on the added responsibility of starting a new business, her first accountant had failed to act on her instructions, she had to find a new account, she relied on professional advice that her business tax returns had to be finalised before she could lodge her personal income tax, while she was caring for a new born and a toddler, with little to no help from her former husband.
The Tribunal finds that it was the combination of all these factors which impacted on GFFQ’s ability to deal with the administration of life and impacted her ability to lodge her 2014/15 income tax return by 30 June 2016.
The Tribunal does not consider that GFFQ’s travel overseas, instructing and communicated with two accountants, operating her business, and looking after two children demonstrated GFFQ had capacity to make rational decisions in managing her day-to-day affairs. The Tribunal finds that GFFQ was dealing with issues as they arose and was trying to look after herself and family as best she could. The Tribunal finds GFFQ’s ‘capacity to make rational decisions in managing her day to day affairs’ was being impacted by the perfect storm of events she was experiencing at the time, which prevented her from lodging her 2014/2015 tax return by 30 June 2016.
The Tribunal finds that GFFQ faced insurmountable circumstances, which were blocking her ability to lodge her return on time; as in the matter of Singleton where the Tribunal stated at [42]:
"The special circumstances must have been such that they served as an insurmountable block, hindrance or impediment to the lodgement taking place within the required time frame".
DECISION
Pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act, the Tribunal sets aside the decision under review and remits the matter to the Respondent with the following findings:
(a)That GFFQ was not a member of a couple at the relevant time;
(b)That special circumstances existed in accordance with section 32C3(b) of the Act to grant GFFQ an extension of time until 20 September 2016 to lodge her income tax return for the 204/15 income year; and
(c)As such, GFFQ is eligible for top-up payments and supplements of $5,340.

I certify that the preceding 87 (eighty-seven) paragraphs are a true copy of the reasons for the decision herein of

.......................[sgd]...........................................

Associate

Dated: 8 September 2021

Date of hearing:	2 July 2021
Date of final submission:	13 September 2021
Applicant:	Self-Represented
Advocate for the Respondent:	Tim Noonan Services Australia