PFPS and Child Support Registrar (Child support second review)

PFPS and Child Support Registrar (Child support second review) [2022] AATA 3263 (11 October 2022)
Division:GENERAL DIVISION
File Numbers: 2021/6814
Re:PFPS
APPLICANT

AndChild Support Registrar
RESPONDENT

Decision
Tribunal:Senior Member Dr M Evans-Bonner
Date:11 October 2022
Place:Perth

The Reviewable Decision, being the AAT1 Decision dated 28 July 2021, is set aside and substituted with the following decision:
a)there was no change in care or terminating event on 28 April 2020. The Mother had 100% care and the Father had 0% care of the child;
b)I determine under s 95N(2) of the Child Support Registration and Collection Act 1988 (Cth) that there were special circumstances which prevented the Mother from making her application to the AAT1 within the relevant timeframe and that a longer period of time until 1 May 2021 is appropriate; and
c)there were special circumstances preventing the Mother from objecting within the relevant timeframe and according to subsection 43(6) of the Administrative Appeals Tribunal Act 1975 (Cth) I determine that the date of effect of the decision in (a) above is 28 April 2020.

.................[Sgd].......................................................
Senior Member Dr M Evans-Bonner
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 (Cth).
Catchwords
CHILD SUPPORT – percentage of care decision – Child Support Agency decided change in care with insufficient evidence of any change in care – both Social Services and Child Support (AAT1) and General Division (AAT2) of this Tribunal not satisfied on the evidence that there was a change in care – whether special circumstances prevented the Applicant from lodging her objection and her application to the AAT1 in time – date of effect – recommendations made for Department to investigate how the decision, which caused distress and hardship to the Mother, was made based on insufficient evidence – recommendations made regarding Respondent’s neutral position before this Tribunal – Reviewable Decision set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) – s 33(1AA), 33(1AB), 46(3)
Child Support (Registration and Collection) Act 1988 (Cth) – s 95N, 95N(1), 95N(2)
Electronic Transactions Act 1999 (Cth) – s 14A(1)
Secondary Materials
Guides to Social Policy Law: Child Support Guide [4.1.8]
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
11 October 2022
overview

The Applicant, PFPS is the Mother of a 16 year old child, J. For convenience, I will refer to her as the Mother.
The Mother is appealing a decision of the Social Services and Child Support Division (AAT1) of this Tribunal dated 28 July 2021 (Reviewable Decision) to the General Division of the Tribunal (AAT2). The Father is not a party to these proceedings.
The AAT1 set aside a decision of the Child Support Agency (Agency) that the Mother had 0% care of J from 28 April 2020, and substituted a decision that she had 100% care of J. The AAT1 reasoned (T2/13):
In this matter, there is no evidence in support of [the Father’s] assertion that J was no longer living with his mother. Given that he states that he does not speak to his son and appears to have no direct contact with the child, it is unclear to the tribunal what the basis is for his advice that there had been a change in care.
The tribunal is satisfied on the available evidence that there was no change in care on 28 April 2020 and that the child has continued to reside with his mother 100% and that the correct determination of care of the child should reflect that [the Mother] continues to have 100% care and [the Father] has 0% care. This means that there was no terminating event following a change in care event.
I have also come to the same conclusion that there was no change to the percentage of care on the evidence before me.
However, the AAT1 determined that the date of effect of the decision was 1 May 2021 because the Mother’s application to the AAT1 was made later than the 28-day statutory timeframe for lodging her appeal to the AAT1. This meant that the Mother did not receive child support that she was otherwise entitled to for the period of 28 April 2020 to 1 May 2021. She in fact was issued with a debt notice for being overpaid child support. For the reasons set out below and based on the evidence the Mother gave at the AAT2 hearing, I have come to a different conclusion regarding the date of effect which essentially restores the Mother’s child support from 28 April 2020.
I am concerned that this dispute arose from a decision made by the Agency that should not have been made in the first place, because there was insufficient evidence of any change in care. The poor decision-making of the Agency has caused significant distress to the Mother, and she has suffered financial hardship as a result.
Child support is often contentious, and it is therefore essential that decisions are evidence based, rather than being made on an arbitrary basis. In this case the Agency made the decision after a phone call from the Father, despite the documentation he submitted failing to demonstrate a change in care. Additionally, the Agency did not afford procedural fairness to the Mother before making the decision, notwithstanding that the Mother would be significantly financially disadvantaged by the decision.
As well as finding in favour of the Mother in this application, I have also made recommendations that the decision-making processes of the Agency should be reviewed so this type of unfortunate situation does not happen again.
The legal representatives for the Agency also adopted a “neutral” position in this application. I also explain my views as to why this is largely inappropriate, especially in this type of application where there has been an obvious error by the Agency. The Respondent’s neutral position needs to be reviewed moving forward.
Background to the application
The child support assessment
A child support assessment was first registered for J on 29 June 2006 (T49/181).
The Child Support Registrar (Registrar) decided that from 1 January 2015, the Mother had 100% care and the Father had 0% care of J, with effect from 18 December 2019 (T49/185).
The Father contacts the Agency
However, on 2 September 2020, the Father contacted the Agency and advised that from 28 April 2020, J had been staying with friends and not attending school (T6/85).
On the same day, the Father provided the Agency with records and correspondence concerning J from J’s school (T7).
I have reviewed these records and they do not contain any evidence of a change in care.
Specifically, the records and correspondence show that J had received a one-day suspension from school on 24 March 2020 for refusing to put his phone away in class, and that J had not been attending school for the first seven weeks of term one in 2020.
Communication records from the school show that the school had spoken to the Father on 12 June 2020 about attending a meeting regarding J’s attendance, but the Father had informed that he would not attend the meeting because “J doesn’t live with him and he has no contact with him”. They state that the “Mother made contact and said J stays with friends for days at a time and doesn’t always come home” and that she had difficulty controlling J (T7/100).
A note from a School Case Manager dated 18 June 2020 records that she spoke with the Father the previous week who confirmed J “doesn’t speak to him”. That note continues to state that J “lives with his mum & younger siblings at his grandmother’s house. His mother doesn’t have a licence so she can’t get him to school” (T7/92).
Instead of showing a change in care, these records indicate that J had no contact with the Father and that J lived with the Mother.
The Agency unsuccessfully tried to contact the Mother by telephone on 4 September 2020, but her contact telephone number was invalid (T8/112).
On the same day, a delegate of the Registrar wrote to the Mother stating that the Father had advised she had zero percentage of care and that if she did not respond by 14 September 2020, “we will make a decision based on the information we have” (T9/113).
I observe here that the information the Agency had did not in any way indicate that there had been a change in care. To the contrary, the information indicated that the Mother was the sole carer for J and that she was having trouble making J go to school.
On 14 September 2020, the Father submitted further school records for J, namely a science report showing that he had not completed any work and some attendance records for term three showing a lack of attendance by J (T12/118-120). The Father’s representative also called the Agency to confirm the case was closed and to discuss the recovery of overpayments (T11/117).
New percentage of care determination
The Mother did not respond and on 14 September 2020, a delegate of the Registrar revoked the existing percentage of care for J and made a new percentage of care determination that from 28 April 2020, the Mother and the Father both had 0% care (T10/115-116).
I make another observation here. This decision should not have been made because there was no available evidence that could form the basis of such a decision. The only information before the Registrar was the records from the school provided on 2 and 14 September 2020. As I have stated above, the Mother was financially impacted by the decision and procedural fairness was not afforded to her before the decision was made.
On the same day, a delegate of the Registrar wrote to the Mother and the Father separately. The delegate advised them that the Father no longer had to pay child support for J because the Mother did not care for him enough to receive child support. The delegate further advised that the Mother had a debt for overpaid child support of $2,577.27 (T13/121; T14/123). Agency records show that the notices were received and read electronically by both parties (T15/128).
The Mother’s objection
On 13 October 2020, the Mother contacted the Agency by telephone to ask why care had been changed and why she had a debt in the system. The electronic note of the conversation indicates that the Mother was very upset after being told her care percentage had been changed to zero (T17/130). I agree with the finding of the AAT1 that this constitutes an objection by the Mother.
The Father contacted the Agency by telephone on 15 October 2020 and advised he had received a call from the Mother on 13 October 2020. The electronic note of the conversation records that the Father:
… was made aware of J’s living arrangements after the school contacted him to advised [sic] that J was missing school and that they were informed by the child that he is no longer living with his Mother.
[The Father] advised that he has already provided evidence of this to [the Agency].
For clarity, I note here that there is no reference in any of the school records of the child stating that he no longer lived with his Mother, and so no such evidence was provided as was suggested in this record.
On 27 October 2020, the Mother put her objection in writing. She confirmed that she was objecting to the change in percentage of care decision and that J lived with her (T19/132).
On 9 November 2020, the Mother and her representative telephoned the Agency seeking an explanation for the decision to change her percentage of care. The only response recorded in the electronic note was that it was because she did not respond by 14 September 2020 (T21/135).
The Mother wrote to the Agency to follow up on 12 November 2020. She stated that she was struggling financially and that she and the children were about to be homeless (T22/136).
The Agency telephoned the Mother on 16 November 2020 and left a message for her stating that her objection had been received and to contact the Agency (T23/137).
On 19 November 2020, the Agency contacted the Mother and explained the objection process. The electronic file note records that the Mother provided the following grounds for her objection (T24/138):
[The Mother] states there was no change in J’s care arrangements on 28 April 2020. [The Mother] advised J went to stay with a friend in [suburb name redacted] for a couple of days however this was not a permanent change in care. [The Mother] explained she has contacted [the Father] regarding this matter and he has advised her that he didn’t lodge a change in care.
On 19 November 2020, the Agency wrote to the Mother and the Father notifying that the Mother’s objection to the change of care decision had been received (T25/140; T26/142).
On 1 December 2020, the Mother provided the Agency with a list of 14 witnesses who could confirm J was living with her (including family members, friends, neighbours and work colleagues), with their signatures and phone numbers, giving authority for the Agency to contact them (T27/144-145).
On 7 December 2020, the Father’s representative contacted the Agency (T29/146-147). The electronic record of this conversation stated that:
… they supplied all the evidence possible in relation to this care decision, so this should be sufficient to support the fact that J does not live with his mother [PFPS]. Rep played a recording for me stating this was J’s school responding to their query where a woman says the response they received from J’s mother is that he was living with a friend and only came home whenever he wanted to.
Adv[ised] Rep if they want that recording used as evidence they can either get a statement from the woman in the recording and/or they can fill out a stat deck putting in writing what the woman states in the recording.
On 4 January 2021, the Mother wrote to the Agency and she again confirmed that there was no change in care. She asked for her payments to be restored urgently because herself and her children were at risk of homelessness “because of these lies and incorrect information [the Agency] acted on”. She asked for the issues to be urgently rectified because she was struggling to provide for her children and “the stress is overwhelming” (T30/148).
On 29 January 2021 the Agency unsuccessfully attempted to contact the Mother and left a message for her to contact them to discuss the concerns she had raised (T32/150).
The Father telephoned the Agency for an update on the objection on 2 February 2021. An electronic record of the conversation records that the Father was advised the Agency had received further correspondence from the Mother who had “provided a list of names and contact numbers of witnesses who can confirm that [J] was in her care” (T33/151).
In the Registrar’s Statement of Facts, Issues, and Contentions (SFIC), para [3.23], it is stated that:
On 8 February 2021, and objections officer accessed the records held by Services Australia – Centrelink. The child was recorded as not having been in the care of the mother or father since 28 April 2020.
With respect, I cannot reach the same conclusion based on this record. The record is more basic than the statement in the SFIC suggests and is somewhat ambiguous. It states (T35/154):
Customer First Access
([redacted] 08/02/2021 16:59)
Customer First accessed
Child J has not been in the care of either applicant or respondent since 28/04/2020
Cheryl APS4 Objections Team 1 Melbourne
Working remotely
From the face of this electronic note, I cannot see that it is from Centrelink, nor can I see the basis or the context for the statement that J “has not been in the care of either applicant or respondent since 28/04/2020”. I do not regard it as sufficiently probative evidence of a change in care.
Objection Decision
On 10 February 2021, an objections officer from the Agency decided to disallow the Mother’s objection (T41/163-164). I will refer to this as the Objection Decision. The Mother and Father were issued with notices advising them of the Objection Decision (T40/161; T41/162). Departmental records show that they were read online by both parties (T42/165).
Also on 10 February 2021, the Father’s representative contacted the Agency to discuss the objection outcome (T36/157) and later that day was advised that the objection was disallowed (T39/160). The Agency unsuccessfully attempted to contact the Mother and left a voicemail message for her to contact the Agency (T37/158).
Appealing the Objection Decision to the AAT1
On 25 February 2021, the Mother lodged an electronic communication with the Agency stating that she wished to appeal the Objection Decision to the AAT1. She requested an extension of time of the 28-day statutory time frame for lodging her appeal to the AAT1 because she was in prison until March. She stated that she would be in contact when released (T43/166). As she was incarcerated without computer access, the Mother had a family member make this communication on her behalf (T45/171).
On 22 March 2021, the Agency received a handwritten letter from the Mother, concerning her objection (T45/168-171). She repeated that J had been solely in her care since 2015, that she continued to pay for a roof over his head and to feed and clothe him, and if it was not for her family’s help at that time, her children would be “on the streets”. She correctly, in my view, stated that her objection had been disallowed with evidence from her and none from the Father. She explained the difficulty she had replying to letters in a timely manner in prison and that by the time she received the objection she only had eight days to reply. She also stated that it took an average of 14 days for any mail to reach her in prison and that she had to get a family member to notify the Agency of her objection online (T45/171).
On 29 March 2021, a delegate of the Registrar wrote to the Mother advising her that her objection was not successful, and advising her that she could appeal to the AAT1 (T46/172).
On 1 May 2021, the Mother lodged an application to appeal the Objection Decision to the AAT1 (T47).
On 12 May 2021, the Father contacted the Agency about the review process and whether he would end up with a debt if the decision was changed (T48/179).
On 26 July 2021, the Mother lodged four statutory declarations with the AAT1 from witnesses confirming that J has only ever lived with the Mother (T2).
The AAT1 Decision
As I explained above, the Mother was partly successful in the AAT1. The AAT1 found that there was no change of care or terminating event on 28 April 2020, the Mother had 100% care, and the Father had 0% care, of J (T2). However, although the AAT1 was sympathetic to the Mother’s situation, the AAT1 found that the date of effect was 1 May 2021 because special circumstances did not prevent her from making her application to the AAT1 on time.
Consideration
No change in care
As I have explained above, the evidence does not support a finding that there was any change in care for J on 28 April 2020. Accordingly, I agree with the AAT1’s finding that there was no change in care or terminating event, and that the Mother had 100% care of J and the Father had 0% care of J at the material times.
Special circumstances
Section 95N of the Child Support (Registration and Collection) Act 1988 (Cth) (Collection Act) provides, in part:
(1) If:
(a)on AAT first review, the AAT varies or substitutes a decision on an objection to a care percentage decision; and
(b) the application for AAT first review was made more than 28 days, or, if the applicant is a resident of a reciprocating jurisdiction, 90 days, after notice of the decision was given;
then, despite subsection 43(6) of the AAT Act, the decision as varied or substituted by the AAT has or is taken to have had effect on and from the day the application for AAT first review was made.
(2) If the AAT is satisfied that there are special circumstances that prevented the application for AAT first review being made within the period referred to in paragraph (1)(b), the AAT may determine that subsection (1) applies as if:
(a) for an applicant who is a resident of a reciprocating jurisdiction--the reference to 90 days in that paragraph were a reference to such longer period as the AAT determines to be appropriate; or
(b) otherwise--the reference to 28 days in that paragraph were a reference to such longer period as the AAT determines to be appropriate.

As I outlined above, the Objection Decision was made on 10 February 2021, and the notice of the decision was received and read by both parties (T42/165). It is not clear from this record when the Mother received and read the notice of the decision, although she made contact with the Agency on 25 February 2021 to state she wanted to appeal the Objection Decision. Thus, even if the Mother received the Objection Decision on or around 25 February 2021, she was well past the 28 day timeframe when she lodged her application to the AAT1 on 1 May 2021. Therefore, the operation of s 95N(1) of the Collection Act would be that the AAT1’s decision, which set aside and substituted the Objection Decision, would be taken to have effect from 1 May 2021 when the Mother lodged her application with the AAT1.
However, s 95N(2) of the Collection Act provides that if there were special circumstances that prevented the Applicant from making her application to the AAT1 within the 28 day statutory timeframe, the Tribunal can determine the reference to 28 days to be a longer period.
Some guidance is provided by the Child Support Guide, at [4.1.8] about “special circumstances”. The relevant part provides:
In considering special circumstances the Registrar will look at the particular circumstances of the applicant. The applicant must show that their particular circumstances prevented them from lodging an objection within the required timeframe. They must explain why there was a delay in lodging the objection and that the circumstances are sufficiently special for the applicant to receive the benefit of an extension to the period in which to lodge an objection, in order for the objection decision to have effect from an earlier date. Some examples of special circumstances may include:
·     the parent was seriously ill or had an accident that stopped them from lodging an objection
·     the parent suffered a personal trauma such as a death in the family or a natural disaster that caused damage to the parent's property
·     the parent had communication difficulties, including isolation, illiteracy or poor English-language skills
·     the parent reasonably relied upon inaccurate or misleading information.
The Mother gave evidence about her circumstances at the AAT2 hearing. She was in prison from 28 January 2021 to 15 March 2021. While she was in prison, she had limited phone access and no computer access. There were lockdowns and delays in mail reaching her. Phone numbers were limited and had to be pre-approved by prison authorities.
After her release from prison the Mother did not have a phone for approximately three weeks because it had been confiscated by police. She received $300 when she was released from prison but did not receive any Centrelink payments for three to four weeks. She did not have a laptop either and said that her main priority was to get her three children settled and abide by her release conditions. These included that she could not return to the original address where she was living and that she and the children had to move in with her brother and his partner, and that she shared a bedroom with two of the children. The Mother also explained that she had reporting requirements such as urinalysis testing three times a week and that she had difficulty with transportation. She estimated that it would not have been until mid-late April 2021 that she “got back on [her] feet and got the kids sorted and stable”. She lived at her brother’s house until December 2021. She described that even when filing documents for the AAT2 hearing, she had difficulty uploading documents and had to borrow a friend’s computer.
Looking at these specific circumstances of the Mother, it would have been almost impossible for her to lodge her AAT1 application any earlier than 1 May 2021. She was faced with caring for three children plus J’s girlfriend who could not live at her own home, she did not have stable accommodation or income, had no mobile telephone for several weeks after release, no computer, and had to borrow a friend’s computer for the AAT2 proceedings. Her situation would have been so unstable and overwhelming such that I find she was prevented from lodging her AAT1 application in the required timeframe. I find that the Mother’s circumstances amount to special circumstances. I therefore determine that a longer period until 1 May 2021 is appropriate.
Date of effect
As I have mentioned above, the new percentage of care determination was made on 14 September 2020 and was sent to the Mother and Father electronically. The letter stated that the Mother could ask for a review within 28 days from the day she received the letter (T14/123).
It is unclear from the record confirming that the notice was received and read as to when the Mother actually did so (T15/128). It appears from the electronic record of the Mother’s telephone conversation with the Agency on 13 October 2020 (T17/130) that she did not immediately become aware of the decision because she had phoned the Agency to enquire as to why she had a debt in the system.
Unfortunately for the Mother, s 14A(1) of the Electronic Transactions Act 1999 (Cth) is a kind of deeming provision for determining when an electronic communication is received. It provides that the time of receipt for an electronic communication is when it is capable of being retrieved by a person when it reaches their designated electronic address. This would have been 14 September 2020. The 28-day period would have ended on 12 October 2020, meaning that the Mother was one day late when she lodged her objection on 13 October 2020. In this regard, I have come to a different conclusion to that of the AAT1 who concluded that the Mother was within time.
In her subsequent written objection received by the Agency on 27 October 2020 (T19/132), the Mother stated that she was not able to respond to the electronic messages from the Agency because she was unable to afford credit and data and that when she was able to access the website, she had received 97 messages from Centrelink which she found to be overwhelming. When she tried to open the messages on her phone or on a computer, she received error messages and could not read them. She stated that she had no reason to believe anything would be changing for J.
Taking into account these circumstances and the fact that the Mother was only one day late in making her objection, I am satisfied that the Mother’s circumstances were sufficiently special so as to prevent her from submitting her objection within the prescribed timeframe.
Therefore, I am satisfied that a determination under s 43(6) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) should be made and I find that the date of effect of my decision that there was no change in care or terminating event on 28 April 2020, is 28 April 2020. This will somewhat restore the Mother to the financial position that she would have been in but for the Agency’s decision-making error.
Recommendations
A review of this case is required
I request that the Agency reviews how a change of care decision was made with respect to J, despite there being no evidence of a change in care. I also recommend that the Mother be advised of the outcome of this investigation, and suggest that it would be appropriate to issue an apology to her for the inconvenience, stress and financial hardship that the making of this arbitrary decision has caused her.
The Agency needs to review its decision-making processes more generally
I also request that the Agency reviews its decision-making processes more generally so that any decisions relating to a change in care are based on logically probative evidence. Decisions about the care of children can cause financial detriment and it is therefore essential that procedural fairness is afforded before such important decisions are made.
The “neutral” role of the Registrar in AAT2 proceedings should be reconsidered
I also wish to make some observations about the Registrar adopting a neutral role in these proceedings. I appreciate that in these types of proceedings the main dispute is between the parents of the child. However, in this case where such an obvious error was made in the decision-making processes of the Agency, it was not appropriate for the Registrar to adopt a neutral role. The Registrar should have used their best endeavours to recognise and rectify the error as soon as possible so that the Mother did not have to go through two levels of Tribunal appeals to have her child support payments restored.
More generally, as well as assisting the Tribunal with submissions concerning the law, the Registrar’s legal representative should be prepared to ask relevant questions that would assist the Tribunal. They should also be able to offer views about the conclusions that the Tribunal should draw from the evidence before it, including on issues such as when and whether there was a change in care, the appropriate care percentages and whether there is sufficient evidence of special circumstances in the particular application.
For example, in closing submissions it would be appropriate for the Registrar’s representative to summarise the evidence in support of the father and summarise the evidence in support of the mother. A more specific example is that the Registrar’s legal representative could summarise the evidence in support of care changing on one date rather than another date; or they could summarise the evidence that supports there being a change in care or no change in care.
If the Registrar wishes to remain “neutral”, they need not comment on the ultimate conclusion that the Tribunal should draw after summarising the evidence. However, given the duty of the decision-maker and the parties’ to assist the Tribunal (s 33(1AA) and (1AB) of the AAT Act), there is no apparent reason why they should not do so. Indeed, the Tribunal would often, as would have been the case in these proceedings, be better assisted by a more pro-active approach from the Registrar’s legal representative.
I also observe that if the Registrar adopted a position concerning the strengths and weaknesses of each party’s evidence, it may assist a party to better understand their own position. These insights may result in applications being resolved earlier, such as during the General Division conferencing stage of proceedings.
Decision
The Reviewable Decision, being the AAT1 Decision dated 28 July 2021, is set aside and substituted with the following decision:
(a)there was no change in care or terminating event on 28 April 2020. The Mother had 100% care and the Father had 0% care of the child;
(b)I determine under s 95N(2) of the Collection Act that there were special circumstances which prevented the Mother from making her application to the AAT1 within the relevant timeframe and that a longer period of time until 1 May 2021 is appropriate; and
(c)there were special circumstances preventing the Mother from objecting within the relevant timeframe and according to subsection 43(6) of the AAT Act I determine that the date of effect of the decision in (a) above is 28 April 2020.

I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

..............[Sgd]..........................................................
Associate
Dated: 11 October 2022

Date of hearing: 11 May 2022

Representative for the Applicant: Self-represented

Representative for the Respondent: Ms E Saunders, Services Australia

[2022] AATA 3263

11 October 2022

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Appeal

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Date of hearing:	11 May 2022
Representative for the Applicant:	Self-represented
Representative for the Respondent:	Ms E Saunders, Services Australia