Jourdain and Groves (Child support) - [2021] AATA 4243

Jourdain and Groves (Child support) [2021] AATA 4243 (6 September 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/SC021024
APPLICANT:  Mrs Jourdain
OTHER PARTIES:  Child Support Registrar
Mr Groves

TRIBUNAL:Member M Douglas
DECISION DATE: 06 September 2021
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that subsection 87AA(1) of the Child Support (Registration and Collection) Act 1988 applies as if the reference to 28 days in that subparagraph is a reference to 319 days.

CATCHWORDS

CHILD SUPPORT – care – date of effect provisions – whether there were special circumstances that prevented the objection being lodged in time – electronic service – whether person aware that decision made – special circumstances exist – decision under review set aside

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

REASONS FOR DECISION

BACKGROUND

On 12 November 2019, the Social Services & Child Support Division of the Tribunal set aside an objection decision relating to the care percentages the Registrar had determined for Mrs Jourdain and Mr Groves for their daughter, [Child 1]. The Tribunal determined new care percentages. The matter presently before the Tribunal concerns the date that the care percentages the Tribunal determined should take effect.
The Registrar acts through staff employed within a Government department that at the time the objection decision was made was known as the Department of Human Services, but which is now known as Services Australia – Child Support. It is convenient to refer to the Registrar in these Reasons as Services Australia.
The chronology relevant to the matter presently before the Tribunal is this.
On 5 June 2018 Mr Groves told Services Australia that since 23 May 2018 [Child 1] had been in his care all of the time. As at 23 May 2018 the care percentages for [Child 1] were 73% for Mrs Jourdain and 27% for Mr Groves.
On 29 June 2018, Services Australia revoked the existing percentages and determined new percentages of care of 100% for Mr Groves and 0% for Mrs Jourdain. Services Australia notified Mrs Jourdain of this decision by electronically posting a letter to her at her myGov account. Mrs Jourdain says she did not become aware of this letter until she spoke with an officer of Services Australia on 13 May 2019. On that day, she objected to the decision of 29 June 2018.
On 29 July 2019, Services Australia allowed her objection and restored the previous care percentages for [Child 1] of 73% for Mrs Jourdain and 27% for Mr Groves. Services Australia also found that there were no special circumstances that prevented Mrs Jourdain from making her objection within 28 days from 29 June 2018, that being the date Services Australia electronically posted the decision to Mrs Jourdain’s myGov account.
Subsection 87AA(1) of the Child Support (Registration and Collection) Act 1988 (the Act) stipulates, essentially, that if an objection to a care percentage decision is made more than 28 days after notice of the care percentage decision has been served and the care percentage decision is varied or changed on the objection, then that variation or change only takes effect from the date the objection was made. However Services Australia has a discretion under subsection 87AA(2) of the Act to extend the 28-day period if Services Australia is satisfied there were special circumstances that prevented the parent from lodging the objection within that time.
The consequence therefore of Services Australia making a finding that there were no special circumstances that prevented Mrs Jourdain from making an objection within 29 days from 29 June 2018, was that, in accordance with the requirement of subsection 87AA(1) of the Act, the objection decision did not take effect until 13 May 2019. By that time, the child support assessment for [Child 1] had already ended.
On 28 August 2019 Mr Groves applied to the Tribunal for review of Services Australia’s objection decision to restore the care percentages for [Child 1] to 73% for Mrs Jourdain and 27% for him. Relevant to the matter presently before the Tribunal, neither Mr Groves nor Mrs Jourdain made an application to the Tribunal for review of Services Australia’s decision not to make a determination under subsection 87AA(2) of the Act to extend the 28-day time period stipulated within subsection 87AA(1) of the Act.
On 12 November 2019 the Tribunal set aside the objection decision of Services Australia and determined that the care percentages for [Child 1] from 23 May 2018 were 30% for Mrs Jourdain and 70% for Mr Groves. Because no application had been made for review of Services Australia’s decision not to make a determination under subsection 87AA(2) of the Act, the Tribunal’s decision on review took effect from 13 May 2019.
On 9 February 2021 Mrs Jourdain applied to the Tribunal for review of Services Australia’s decision of 29 July 2019 not to make a determination under subsection 87AA(2) of the Act.
The Tribunal observes that prior to making that application, Mrs Jourdain had on 23 December 2019 applied to the General Division of the Tribunal for review of the Tribunal’s decision of 12 November 2019. She contended, as part of her application, “that the Tribunal should determine an earlier date of effect as lodgement of the objection was prevented by special circumstances”.[1] The Tribunal held in YXVZ that the issue that Mrs Jourdain was attempting to agitate on second review with respect to Services Australia’s decision not to make a determination under subsection 87AA(2) was not properly before the Tribunal at second review and accordingly the Tribunal decided it “does not have jurisdiction to review the objection decision under subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988”.[2]
[1] YXVZ & Child Support Registrar (Child Support second review) [2020] AATA 4802 (YXVZ) at [4].
[2] YXVZ at [107]
Understandably, that decision of the Tribunal in YXVZ precipitated the present application of Mrs Jourdain before the Tribunal.
The Tribunal heard Mrs Jourdain’s application on 10 August 2021. Mrs Jourdain participated and gave sworn oral evidence. She was represented by her husband, Mr Jourdain, who made oral submissions on her behalf. Mr Groves also participated and made brief submissions. Services Australia was represented by its solicitor, Ms [A], who made submissions.
Prior to the hearing Services Australia provided the Tribunal, in accordance with section 37 of the Administrative Appeals Tribunal Act 1975, with the documents it had relevant to the decision the Tribunal is reviewing. Services Australia also provided written submissions dated 5 May 2021 to the Tribunal that its solicitors had drafted.
The Tribunal deferred making a decision at the conclusion of the hearing so as to enable Services Australia to provide a transcript of a conversation that occurred between Mrs Jourdain on 13 May 2019 and one of Services Australia’s employees. Subsequent to Services Australia providing that to the Tribunal, Mr Jourdain made written submissions on Mrs Jourdain ’s behalf regarding that transcript.

CONSIDERATION

Mrs Jourdain ’s evidence, in summary, was:
a.    When she initially registered a case for child support with Services Australia she arranged for her child support account to be linked to her myGov account. She received correspondence from Services Australia into that account until approximately 3 or maybe 5 years before 2018. Each time thereafter when she tried to access her child support account through her myGov the link kept “glitching”. She mentioned this to Child Support before 2018;
b.    She was unaware of what was causing the glitching. She was able to access other Government services through her myGov account such as Centrelink and Medicare;
c.     In April 2019 she was notified by Centrelink that she had a debt for overpayment of a family tax benefit. She enquired with Centrelink regarding the circumstances of how that debt arose and at that time she was informed by Centrelink of the decision Services Australia had made that Mr Groves had 100% of the care of [Child 1] and that she had 0% care;
d.    In the period subsequent to Services Australia making the care percentage decision on 29 June 2018 and the assessment of child support ending for [Child 1] on 23 November 2018, she continued to receive family tax benefit for [Child 1] and also child support continued to be deposited into her bank account. She subsequently learnt that the child support that she continued to receive following the decision of 29 June 2018 was arrears of child support that Mr Groves had been paying;
e.    On 13 May 2019 she called Services Australia and this was the first time that she was made aware by it of its decision of 29 June 2018;
f.   Prior to 13 May 2019 she never received from Services Australia any mail in the post.
The Tribunal infers from Mrs Jourdain ’s evidence that at the time she applied for a child support assessment for [Child 1] she consented to receive notices from Services Australia by electronic communication and that she designated her myGov account as the address at which she could receive those communications. That is corroborated by one of the documents Services Australia provided the Tribunal, being the document titled “CSA online account history” which contains entries against dates “21/08/2014” and 27/08/2014” indicating an account was created for Mrs Jourdain and linked to myGov.
Given that, regulation 31 of the Child Support (Registration and Collection) Regulations 2018 permitted Services Australia to serve notice of its decision of 29 June 2018 on Mrs Jourdain by delivering it to her by means of electronic communication.
The documents Services Australia provided the Tribunal also included a document titled “letters list – production” which indicates that Services Australia’s care percentage decision of 29 June 2018 was transmitted to Mrs Jourdain online, but was not read by her. That document also indicates other correspondence had been posted by Services Australia to Mrs Jourdain online between 6 June 2018 and 19 July 2018, but was “unread”.
The Tribunal is satisfied that Services Australia sent its letter of 29 June 2018 notifying Mrs Jourdain of its care percentage decision by means of transmitting it to her myGov account. But the Tribunal accepts Mrs Jourdain ’s evidence that she did not read Services Australia’s letter of 29 June 2018 informing her of its care percentage decision and did not become aware of that decision until alerted to it by Centrelink in April 2019. The Tribunal accepts that Mrs Jourdain ’s first contact with Services Australia regarding that decision was when she called Services Australia on 13 May 2019.
The Tribunal accepts Mrs Jourdain’s evidence that subsequent to Services Australia’s care percentage decision of 29 June 2018 she continued to receive child support from Mr Groves, although unbeknown to her at the time, what she was receiving was not in satisfaction of a present obligation Mr Groves had, but rather his reducing an arrears of child support he had accumulated on his account with Services Australia.
In short, the Tribunal accepts that Mrs Jourdain had no knowledge of Services Australia’s care percentage decision until she was alerted to it by Centrelink and did not have the decision confirmed to her by Services Australia until she contacted Services Australia on 13 May 2019.
Subsection 14A(1) of the Electronic Transactions Act 1999 stipulates that the time of receipt of an electronic communication is the time at which the electronic communication becomes capable of being retrieved by the addressee of the communication at the electronic address designated by the addressee. Subsection 14A(2) stipulates that, unless there is an agreement between the originator of the communication and the addressee of it, it is to be assumed that the electronic communication is capable of being retrieved by the addressee when it reaches the addressee’s electronic address.
Mrs Jourdain ’s evidence is that she had not read any correspondence sent to her by Services Australia to her myGov account for many years before Services Australia’s care percentage decision, and that when she attempted to do so she experienced “glitching”. She has not led any evidence however, with respect to why she was unable to open the Services Australia link in her myGov account. Absent that evidence, the Tribunal is not satisfied that the electronic communications that were posted to her myGov account by Services Australia were incapable of being retrieved by her. The reason may well have been Mrs Jourdain ’s incompetence in managing the settings of her account or opening the link, rather than the correspondence being incapable of being retrieved from the account.
There is no evidence of any agreement between Services Australia and Mrs Jourdain so as to rebut the assumption to be made in accordance with subsection 14A(2) of the Electronic Transaction Act 1999 that Services Australia’s letter of 29 June 2018 was capable of being retrieved by Mrs Jourdain when it reached her electronic address. Consequently, she is taken to have received that letter at the time it was posted to her myGov account on 29 June 2018.
That said, however, the situation is that Mrs Jourdain was unaware of Services Australia’s care percentage decision of 29 June 2018 until basically the time that she lodged an objection with Services Australia with respect to the decision. Further, the document “letter list – production” that Services Australia provided to the Tribunal reveals that Services Australia was aware, or ought to have been aware, that Mrs Jourdain had not read the letter that it had posted to her online, and indeed had not read earlier and subsequent correspondence from it. In that circumstance, it seems to the Tribunal that Services Australia ought to have posted a copy of its letter to Mrs Jourdain by normal post to ensure Mrs Jourdain was aware of its decision.
Insofar as Mrs Jourdain was unaware of the decision of Services Australia, she was prevented from lodging an objection to it. She was only able to lodge an objection to its decision when she became aware of it. That coupled with the fact that Services Australia was aware, or at least were alerted to the fact that Mrs Jourdain had not read the decision, combine to create special circumstances that set this case apart from others.
The Tribunal therefore concludes that special circumstances did exist which prevented Mrs Jourdain from lodging until 13 May 2019 an objection to Services Australia’s care percentage decision of 29 June 2018. Consequently, the Tribunal sets aside the decision of Services Australia of 29 July 2019 refusing to make a determination under subsection 87AA(2) of the Act and, in substitution, the Tribunal determines that an appropriate time within which Mrs Jourdain ought to be allowed to make an objection under subsection 87AA(1), without deferring the date of effect of the substituted care percentage decision, is the date upon which she lodged her objection, being 13 May 2019. The Tribunal calculates this is 319 days after the decision of 29 June 2018.
Services Australia submitted to the effect that were such a decision to be made, then section 95N of the Act would thereupon be engaged requiring the Tribunal to consider whether there were special circumstances that prevented Mrs Jourdain from applying to the Tribunal for review of Services Australia’s objection decision of 29 July 2019 within 28 days of receiving notice of that decision.
Subsection 95N(1) of the Act stipulates that the date of effect of any decision of the Tribunal varying or substituting a decision on an objection to a care percentage decision takes effect from the date the application to the Tribunal for first review was made if the application to the Tribunal for review of that decision was made more than 28 days after notice of the objection decision was given. Subsection 95N(2) provides the Tribunal with a discretion to extend that 28-day period to such period as the Tribunal considers appropriate provided the Tribunal is satisfied that special circumstances prevented the application being made to the Tribunal within 28 days of notification of the objection decision.
The term “care percentage decision” is defined in section 4 of the Act to mean, relevantly, a decision as to the particulars of an administrative assessment to the extent that the decision involves (wholly or partly) a determination of a person’s percentage of care for a child that was made under a provision of Subdivision B of Division 4 of Part 5 of the Child Support (Assessment) Act 1989 (the Assessment Act).
Services Australia submitted that a decision by it to make or not to make a determination under subsection 87AA(2) of the Act (a section 87AA decision) falls within that definition because it is a decision as to the particulars of an administrative assessment that at least partly involves a determination of a parent’s percentage of care under Subdivision B of Division 4 of Part 5 of the Assessment Act. The Tribunal considers there is merit in that submission.[3]
[3] See YXVZ at [46] – [47]
It is not, however, necessary for the Tribunal in the matter presently before it to make any finding regarding whether a section 87AA decision is a care percentage decision. This is because, even if, in arguendo, a section 87AA decision is a care percentage decision, section 95N is not engaged with respect to such a decision. An application to the Tribunal for a review of a section 87AA decision does not involve the Tribunal reviewing “an objection” to a care percentage decision. Section 89 of the Act permits a parent to apply for review of a section 87AA decision without firstly having to lodge an objection with Services Australia about the decision. Consequently, any decision that the Tribunal may make varying or substituting a section 87AA decision is not a decision by which the Tribunal varies or substitutes “a decision on an objection to a care percentage decision”.
Consequently, the Tribunal’s decision to exercise the discretion under subsection 87AA(2) to extend the time in subparagraph 87AA(1)(b) to 319 days, takes effect on 29 July 2019, being the date of Services Australia’s decision not to make a determination under subsection 87AA(2).

DECISION