Rafiq and Rafiq (Child support)

[2020] AATA 2034

Rafiq and Rafiq (Child support) [2020] AATA 2034 (4 May 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/AC018613

APPLICANT:  Ms Rafiq

OTHER PARTIES:  Child Support Registrar

Mr Rafiq

TRIBUNAL:Member Y Webb

DECISION DATE:  4 May 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – late application to extend the child support assessment beyond the child’s eighteenth birthday – no exceptional circumstances – application was correctly refused – decision under review affirmed

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

1. This review relates to the decision made on 4 October 2019 to disallow Ms Rafiq’s objection to the decision made by the Department of Human Services (“Child Support Agency”) on 31 May 2019 to refuse to accept her late application to extend the child support assessment beyond the child’s 18^th birthday.

2. The child support case was registered with the Child Support Agency on 6 May 2011 and was registered for collection by the Child Support Agency on 27 August 2013.

3. Ms Rafiq and Mr Rafiq’s child turned 18 years old [in] February 2019. The child is recorded as being in the 100% care of Ms Rafiq.

4. It is not disputed (and was confirmed by the school which the child attends) that the child was in full-time secondary education throughout the 2019 school year and that the school year ended on 13 December 2019.

5. By letter dated 30 November 2018 the Child Support Agency wrote to Ms Rafiq and Mr Rafiq confirming that the child would turn 18 [in] February 2019 and that after that date the child would no longer be included in the child support assessment.  The letter went on to state that if the child was still in full-time secondary education on and after the child’s 18^th birthday, the parent could apply – prior to the child turning 18 – to include the child in the assessment until the end of the school year in which the child turned 18.  The letter to Ms Rafiq included information about the details which would need to be included in an application to extend the assessment.  The letter also stated that “in very limited circumstances, (the Child Support Agency) may accept an application after her 18^th birthday”.

6. On 17 December 2018 Centrelink confirmed that it received a letter from Ms Rafiq.  The letter stated:

   Ms Rafiq  15/12/18

   I need to inform you that I got a letter from Centrelink stating that my daughter finished year 12 this December.  She actually is going to be finishing on 14/12/19. This year she was still completing some year 11 subjects so needs to go back to another full-time year for 2019.  Thank you. Ms Rafiq.

7. On 23 May 2019 Ms Rafiq telephoned the Child Support Agency which advised that it had not received any application from her to extend the child support assessment.

8. On 30 May 2019 Ms Rafiq made a late application to extend the child support assessment for the child past the child’s 18^th birthday.  The Child Support Agency notes record that Ms Rafiq stated that the reason for not applying before the child turned 18 was that she did call the Child Support Agency on 15 December 2019; that she panics when she makes phone calls and she has been unable to pursue the matter due to anxiety and mental health issues.

9. On 31 May 2019 the Child Support Agency made a decision to refuse Ms Rafiq’s late application.  It found that there were no exceptional circumstances in relation to the late lodgement of her application.

10. On 19 June 2019 Ms Rafiq objected to that decision.  The Child Support Agency confirmed that it had contacted the child’s school and it had confirmed that the child was enrolled and attending full-time secondary studies.  The school confirmed that the final year 11 day of compulsory classes was 13 December 2019.

11. Ms Rafiq advised that she lives with severe pain and has anxiety from post-traumatic stress disorder and bipolar.  She also stated that she telephoned the Child Support Agency on 15 December 2018 and that she used her letter to Centrelink of 15 December 2018 to guide the telephone conversation with the Child Support Agency.

12. On 4 October 2019 an objections officer disallowed Ms Rafiq’s objection and determined that there were no exceptional circumstances justifying the acceptance of a late application to extend the child support assessment.

13. On 21 November 2019 Ms Rafiq requested review by the Administrative Appeals Tribunal (the Tribunal).  She was granted an extension of time.

14. Both parents attended the hearing by way of a telephone conference on 21 April 2020 and both gave sworn evidence.

15. The Child Support Agency provided a bundle of relevant documents and these were marked Exhibit C1.

16. Following the hearing the Tribunal deferred making a decision pending Ms Rafiq providing, with the Tribunal’s consent, a letter from her medical practitioner. With Ms Rafiq’s consent Mr Rafiq was provided with an opportunity to respond to the medical information.  Mr Rafiq did not respond.

17. On 4 May 2020 the Tribunal made its decision.

ISSUES

1. The issues which arise in this case are:

   ·      Whether there were exceptional circumstances justifying the acceptance of a late application by Ms Rafiq to extend the child support assessment past the child’s 18^th birthday.

   ·      If there were exceptional circumstances, to which date should the assessment be extended.

CONSIDERATION

1. The statutory provisions relevant to this review are found in the Child Support (Assessment) Act 1989 (the Assessment Act).

2. A child support assessment for a child normally terminates pursuant to paragraph 12(1)(c) of the Assessment Act when the child turns 18 years old.

3. Section 151B of the Assessment Act allows a parent to apply for a child support assessment to be continued after a child’s 18^th birthday and until the last day of the secondary school year in which the child turned 18.

4. Subsection 151C(2) of the Assessment Act provides that the Registrar must accept the application made under section 151B only if satisfied of the following matters:

   151CApplication for assessment/agreement to continue—Registrar’s decision

   …

   (2)The Registrar must accept the application if, and only if, the Registrar is satisfied that:

   (a)the child has turned 17; and

   (b)any of the following applies:

   (i)if the application is made under subsection 151B(1)—an administrative assessment, or a child support agreement, in relation to the child either is in force, or is likely to be in force, on the day before the child’s 18th birthday; or

   (ia) a suspension determination under section 150F provides that child support is not payable in respect of the day before the child’s 18^th birthday; and

(ii)an administrative assessment that takes the child into account is in force, or is likely to be in force, on the day before the child’s 18th birthday; and

(c)the child is likely to be in full‑time secondary education on the child’s 18th birthday; and

(d)the child’s 18th birthday will occur on or before the last day of the secondary school year; and

(e)either:

(i)the application is made before the child’s 18th birthday; or

(ii)there are, in the Registrar’s opinion, exceptional circumstances justifying the making of the application after the child’s 18th birthday.

Note:For full‑time secondary education, last day and secondary school see section 5.

1. There is no dispute in this case that the child had turned 17 years old [in] February 2018 and that the child was likely to be in full-time secondary education on the child’s 18^th birthday [in] February 2019.

2. There was also no dispute that the last day of the secondary school year for the child was 13 December 2019. This was confirmed by the school in a telephone conversation with a Child Support Agency officer.

3. Ms Rafiq told the Tribunal that around the time that she received the letter of 30 November 2018 from the Child Support Agency she also received a letter from Centrelink and that was the reason why she sent her letter dated 15 December 2018 (the contents of which are detailed above in paragraph 6) to Centrelink.  However, she stated that she telephoned the Child Support Agency on the same day that she wrote the letter to Centrelink and gave the Child Support Agency the information contained in her letter about the child returning to school full-time for the 2019 school year.

4. The Child Support Agency advised that they have no record of Ms Rafiq telephoning the Child Support Agency regarding that matter on 15 December 2018 or on any day until 23 May 2019 when she telephoned to “discuss the case”.  The Child Support Agency’s notes record that Ms Rafiq stated to the officer that she had spoken to the Child Support Agency on multiple occasions regarding extending the assessment beyond the child’s 18^th birthday.  However, the Child Support Agency responded that they had no receipt numbers, call communication notes or case notes to indicate that the Agency had spoken with Ms Rafiq regarding extending the child support assessment for the child.  The Child Support Agency stated that there were records of conversations in relation to another child but not about the child who had turned 18.  The telephone conversation with Ms Rafiq on 23 May 2019 was therefore interpreted as Ms Rafiq’s (late) application to extend the child support assessment past the child’s 18^th birthday. 

5. Ms Rafiq was adamant that she had telephoned the Child Support Agency on 15 December 2018 about extending the child support assessment past the child’s 18^th birthday.  The Tribunal accepts that Ms Rafiq sent her letter to Centrelink.  There is a notation on the letter which confirms that it was received by Centrelink on 17 December 2018.  However, the Tribunal is satisfied that the letter was not sent to the Child Support Agency.  In relation to whether Ms Rafiq telephoned the Child Support Agency in relation to extending the child support assessment beyond the child’s 18^th birthday or whether she confused that telephone call with other calls which the Agency confirmed it had received in relation to her other child is unascertainable.  In the absence of verification of any contact by Ms Rafiq to the Child Support Agency until 23 May 2019 the Tribunal is not persuaded that prior to 23 May 2019 the Child Support Agency was aware that Ms Rafiq was intending to apply to have the child support assessment extended past the child’s 18^th birthday.

6. The Tribunal is satisfied that the Child Support Agency correctly interpreted Ms Rafiq’s telephone call on 23 May 2019 as a late application to extend the child support assessment.

7. Of relevance to this application therefore is subparagraph 151C(2)(e)(ii) of the Assessment Act which requires there to be exceptional circumstances justifying the making of the application after the child’s 18^th birthday in order for the application to be accepted.

8. Ms Rafiq provided a letter from her medical practitioner dated 25 October 2019 which stated, in summary, that Ms Rafiq suffers from chronic severe pain, depression and bipolar disorder which affect her memory.

9. The Assessment Act does not specify what factors constitute “exceptional circumstances”. The Macquarie dictionary defines “exceptional circumstances” as meaning “unusual or extraordinary”. The Full Court of the Family Court has explained in a related context that, as a matter of law, what amounts to “exceptional circumstances” is “very much a question of fact and degree”.[1] 

   [1] Simpson v Hamlin (1984) FLC 91-576.

10. The Tribunal accepts that Ms Rafiq experiences chronic severe pain as well as mental health issues.  It accepts that these health conditions affect Ms Rafiq’s memory.  However, Ms Rafiq’s doctor did not suggest that Ms Rafiq’s medical conditions were especially debilitating or incapacitating at the time leading up to the child’s 18^th birthday to the extent that she was unable to make an application to extend the child support assessment prior to the child turning 18.  That Ms Rafiq was able to write a letter to Centrelink in December 2019 indicates that she was able, at that time, to make an application to the Child Support Agency either in writing, by telephone or online that she wished to extend the child support assessment. While the Tribunal accepts that Ms Rafiq’s medical conditions are debilitating and challenging it does not consider that the circumstances of the late application could be described as “exceptional”.

11. In the absence of exceptional circumstances, the Tribunal finds that a late application to extend the child support assessment past the child’s 18^th birthday could not be justified. 

12. Therefore the child support assessment for the child ended on the day before the child’s 18^th birthday in accordance with section 151C of the Assessment Act.

DECISION

The decision under review is affirmed.