RHKF and Child Support Registrar (Child support second review)

[2022] AATA 2438

RHKF and Child Support Registrar (Child support second review) [2022] AATA 2438 (29 April 2022)

AppID:RHKF and Child Support Registrar

MatterType:  Child support second review

Division:GENERAL DIVISION

File Number(s):      2021/5046

Re:RHKF

APPLICANT

AndChild Support Registrar

RESPONDENT

AndWDGK

OTHER PARTY

DECISION

Tribunal:Member P Ranson

Date:29 April 2022

Place:Brisbane

The Tribunal varies the decision of AAT1 and finds special circumstances prevented the Mother from objecting to the care decision made on 15 May 2020 and in applying for a review of the objection decision made on 10 September 2020.

That means the effect of this decision is to record the care percentages as 50% to both the Mother and the Father from 11 March 2020 to 14 May 2020.

......................[SGD].....................

Member P Ranson

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.

Catchwords
CHILD SUPPORT – objection to care percentage change – special circumstances – interim care determination – extension of time to object – extension of time to apply for external review – Federal Court parenting orders – reasonable action – physical illness – familial illness – decision varied

LEGISLATION

Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)

Child Support (Registration and Collection) Act 1988 (Cth)

CASES

Cases

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

SECONDARY MATERIALS

Secondary Materials

Guides to Social Policy Law, Child Support Guide, Version 4.57, released 1 July 2021

REASONS FOR DECISION

Member P Ranson

29 April 2022

BACKGROUND

1. RHKF (the Mother) and WDGK (the Father) are the separated parents of two children born in 2004 and 2007 respectively (the Children). The child support case for the Children began in 2014 and recorded care as 50% to each parent.

2. On 11 March 2020, the Mother travelled to Victoria to assist her elderly father to sell his home and relocate to Brisbane to live with her. In 2018, she was made his full-time carer and expected to be away for three weeks. Whilst she was away, and with his agreement, the Father had care of the Children.

3. Border restrictions due to the onset of COVID-19 began in late March 2020 requiring all returning Queensland residents to quarantine for 14 days, which made her return difficult but not impossible. Whilst in Victoria, the Mother took ill and was admitted to hospital on two occasions so she needed time to recuperate before she could travel again. Also, the sale of her father’s home took longer than expected. The Mother returned to Brisbane on 25 May 2020, just over ten weeks after she left.

4. On 10 May 2020 and while the Mother was in Victoria, the Father notified Child Support he had 100% care of the Children from 11 March 2020, which was true, implying the Mother was living in Victoria, which was not true. Due to his late notification, Child Support recorded the Father as having 100% care from 11 May 2020. From 11 March 2020 to 10 May 2020 the care of the Children was recorded as 50% to the Father and 0% to the Mother. Then from 11 May 2020 to 24 May 2020 the care was recorded as 100% to the Father and 0% to the Mother. Child Support later determined the care had returned to 50/50, once the Mother returned to Brisbane on 25 May 2020, based on advice from the Father.

5. The Mother asserts she was not contacted by Child Support to ascertain her views on this change before the decision was made. She objected to it on 24 June 2020 and her objection was disallowed on 10 September 2020. The Mother was dissatisfied with the objection decision and applied for a review with the SSCSD of this Tribunal. However, she did not apply until 12 April 2021, a delay of some seven months, she says due to her health and personal circumstances. The Mother was successful at AAT1 is having the care reinstated to 50/50 from 11 March 2020 however that decision applied from 12 April 2021 because the AAT1 found no special circumstances prevented her from applying within 28 days. Dissatisfied with that decision, which the Mother says has cost her approximately $6,000, she applied to the GD for a second review.

   PROCEDURAL HISTORY

6. The parties in this case are:

Applicant	RHKF (the Mother)
Registrar	Child Support Registrar (the Registrar)
Other Party	WDGK (the Father)

1. On 15 May 2020, an authorised officer of the Registrar found the Father had 100% care and the Mother had 0% care of the children from 11 March 2020 with effect for the Father from 11 May 2020 being the date he notified the change of care (the Original Care Decision). The Mother objected to that decision on 24 June 2020 believing she was objecting in time. On 10 September 2020, an objections officer affirmed the Original Care Decision and so was not required to decide if special circumstances existed which prevented the Mother from objecting in time. Dissatisfied with the objection officer’s decision, the Mother applied to the Social Services and Child Support Division (SSCSD) of this Tribunal for a review, however she delayed until 12 April 2021 to make that application.

2. The decision under review was made by SSCSD of this Tribunal on 14 June 2021 which set aside the decision of the objections officer and instead found there was no change of care from 11 March 2020 (AAT1). That decision also found the date of effect was 12 April 2021 because there were no special circumstances which prevented the Mother from applying to the SSCSD within 28 days.

3. On 25 May 2020, the Father notified the Registrar the care of the Children had reverted to 50/50 from that date and a new care decision was made on that basis.[1] That means the decision under review only deals with the period 11 March 2020 to 25 May 2020, which is not quite 11 weeks, and the date of effect of the care decision applying during that period.

   [1] Exhibit 1, T Documents, T25.

4. It seems the Mother has misunderstood an explanation provided to her by the Tribunal of the effect of the AAT1 decision. She believes that decision means she is recorded as not having any care of the children from 11 March 2020 to 12 April 2021. That is not the effect of the AAT1 decision. A new care decision was made on 25 May 2020 which reset the care to 50/50 as it had been before the Mother went away on 11 March 2020. The AAT1 decision found there was no change of care on 11 March 2020 and 50/50 applied from that date. The significance of 11 April 2021 is the date the AAT1 decision applies from. As the care period under review ends on 24 May 2020, the date of effect means the AAT1 decision has no practical effect on the Mother.

5. The Hearing for this current application was held before this Tribunal on 1 February 2022 (the Hearing). The Mother and the Father attended the Hearing, together with Mr Donna Smith (Ms Smith) representing the Registrar. The video hearing was facilitated using Microsoft Teams and both parents gave affirmed evidence. No witnesses were called.

6. The Registrar identified the issues to be decided as follows:

   (a)Should the existing determination of percentage of care be revoked; and if so,

   (b)From what dates should the existing determination be revoked; and

   (c)What percentages of care did the Applicant and the Other Party each have of the children from that date; and

   (d)The date of effect for the purposes of the child support assessment.

7. Effectively, this decision is about two issues. The Father contends the care percentages should be 100/0 from 11 March 2020 and the Mother contends there were special circumstances which twice prevented her from applying in time.

8. Prior to the Hearing, all parties were provided with an Exhibit List showing Exhibits 1 to 4. Exhibits 5, 6 and 7 were received after the Hearing at the request of the Tribunal. Copies of each were sent to the other parties in each case. The following documents were admitted into evidence:

Number	Description
Exhibit 1	T Documents
Exhibit 2	Registrar’s Statement of Facts, Issues, and Contentions dated 15 November 2021.
Exhibit 3	Applicant Submissions Summary, including List of Appointments with Dr Collins
Exhibit 4	Letter dated 2 December 2020 from Dr Purcell regarding anaesthetic reaction after surgery.
Exhibit 5	Applicant’s post-hearing submission dated 18 February 2022 and the reply to it by the Registrar.
Exhibit 6	Respondent’s schedule of care determinations.
Exhibit 7	Applicant’s further Submissions in Reply dated 25 March 2022

1. The Tribunal has considered all the material supplied to it and the oral evidence of the Mother and the Father at the Hearing. Not all the evidence is referred to at length in this decision record. That does not mean it has not been considered in determining the outcome. It is sometimes unnecessary to canvass all aspects, arguments, and history of a case in the decision record.

   THE LAW

2. The Registrar’s Statement of Facts, Issues, and Contentions dated 15 November 2021 (SFIC) sets out in detail the law which is relevant to this case with which the Tribunal concurs. As a copy of the SFIC and its attachments were provided to PCHH and LRSD, prior to the hearing, that law will not be reproduced in this decision other than to confirm the relevant legislation is contained in:

   (a)Child Support (Assessment) Act 1989 (Cth) (the Assessment Act).

   (b)Child Support (Registration and Collection) Act 1988 (Cth) (the Registration Act)

3. Section 43(6) of the Administrative Appeals Tribunal Act 1975 (Cth) provides the decision of the Tribunal is deemed to be a decision of the person who made the reviewable decision and gives the Tribunal discretion to backdate the effect of that deemed decision.

4. The law relevant to care percentage determinations is found in sections 49 and 50 of the Assessment Act. Section 49 applies if the parent ‘has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances.’ Section 50 applies if the parent ‘has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances.’

5. Both sections reflect the idea the Department makes point-in-time care decisions based on what has happened up until the change in care is considered and what is likely to happen thereafter. What is likely to happen may not eventuate and when that occurs, a parent can notify the Department and a new care determination can be made. However, the legislative test at first instance and on review remains the same, that is, what had happened until the date of the notification and what was likely to happen thereafter.

6. Sections 54F, 54G and 54H of the Assessment Act deal with whether an existing care percentage must or may be revoked. Relevantly, the Registrar must revoke an existing care determination pursuant to s54F where a new care percentage determination made under s49 or s50 would change the cost percentage for the child and s54G does not apply. Alternatively, the Registrar must revoke an existing care determination pursuant to s54G, where, under a new care percentage determination, one of the parents who was previously assessed to have at least regular care of the child would now be determined to have less than regular care despite the child being made available by the other parent and that other parent notified the Registrar of the care change within a reasonable timeframe from becoming aware of the change in care. The Registrar may revoke the existing care determination pursuant to s54H, where a new care percentage determination, if it was to be made, would change the cost percentage and s54F and s54G do not apply.

   Date of effect of objections relating to care percentage decisions

7. Section 87AA(1) of the Registration Act deals with late lodgment of objections to care decisions. Where a person lodges, under section 87, an objection to a care percentage decision; and the objection is lodged more than 28 days or, and the Registrar decides (the review decision), under section 87, to allow the objection in a way that has the effect of varying the determination to which the care percentage decision relates, or substituting a new determination, the date of effect of the review decision is the day on which the person lodged the objection.

8. If the Registrar is satisfied there are special circumstances (emphasis added) which prevented the person from lodging the objection within 28 days, the Registrar may determine that subsection (1) applies as if the reference to 28 days in that paragraph were a reference to such longer period as the Registrar determines to be appropriate.

   Date of effect of AAT first review decision relating to care percentage decision

9. Section 95N(1) of the Registration Act deals with late lodgment of applications to the Tribunal for a first review of care decisions. If on first review, the Tribunal varies or substitutes a decision on an objection to a care percentage decision and the application for first review was made more than 28 days late then despite subsection 43(6) of the AAT Act, see [‎17], the decision as varied or substituted by the Tribunal is effective on and from the day the application for first review was made.

10. If the Tribunal is satisfied there are special circumstances (emphasis added) which prevented the application for first review being made within 28 days, the Tribunal may determine the reference to 28 days is a reference to such longer period as the Tribunal determines to be appropriate. The Tribunal must give written notice of a decision to make, or not to make, a determination in relation to a person, to each person affected by the decision.

    Child Support Guide

11. The SFIC also refers to the Child Support Guide (the Guide) and especially Chapter 2.2.[2] The Tribunal notes where a general policy exists to guide the decision maker in exercising its powers, the Tribunal “will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision … cogent reasons will have to be shown against its application”.[3]

    [2]  See Guides to Social Policy Law, Child Support Guide, Version 4.57, released 1 July 2021

    [3]  Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645 (Brennan J).

12. The Tribunal considers there are no pressing reasons to depart from the policy outlined in the Guide. However, to the extent the Tribunal has considered policy in this case, it has not applied it inflexibly and has only considered it to the extent the Guide is consistent with the requirements as set out in the legislation as it would be an error of law for the Tribunal to state it must (emphasis added) follow what policy says concerning the scope or meaning of a provision in the Act or Regulations.

13. The Guide at section 4.1.8 provides some assistance in considering whether special circumstances existed to cause a party to object to a decision or apply for a review of a decision. It suggests the Registrar look at the circumstances of the applicant who must show their circumstances prevented them from lodging an objection within the required timeframe. The applicant must explain why there was a delay in lodging the objection and their circumstances are sufficiently special for them to receive the benefit of an extension to the period in which to lodge an objection, for the objection decision to have effect from an earlier date. Some examples of special circumstances may include:

    (a)the parent was seriously ill or had an accident that stopped them from lodging an objection

    (b)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

    (c)the parent had communication difficulties, including isolation, illiteracy or poor English-language skills

    (d)the parent reasonably relied upon inaccurate or misleading information.

    THE FACTS AND EVIDENCE

    Oral evidence

14. The Tribunal approaches oral evidence understanding the following principles apply:

    a.    Facts may be found based on oral evidence alone. There is no barrier to a fact being found on the uncorroborated evidence of a party to proceedings. There is no requirement that direct evidence by oral testimony or affidavit may only be accepted if corroborated. However, self-serving statements should be given close scrutiny.

    b.    Evidence of a party is not to be regarded as prima facie unacceptable. While it will often be prudent to put forward corroborating evidence, parties are not obliged to call all material witnesses or produce all material documents.[4]

    [4] For this and the preceding proposition, see, for example: Imperial Bottleshops Pty Ltd v Commissioner of Taxation (1991) 22 ATR 148, 155; and FCT v Cassaniti [2018] FCAFC 212.

15. The oral evidence of the Mother concerning her health issues and personal circumstances is corroborated by external evidence. To the extent the Mother makes assertions about the actions of the Father are ultimately not relevant to this decision. The oral evidence of the Father at the Hearing was brief and does not appear to warrant corroboration.

    Registration of the child support case

16. On 7 October 2014 the Registrar first recorded a child support case for the Children with the Father having 50% care and the Mother having 50% care (the Care Orders). Consent Orders by the then Family Court of Australia confirm this arrangement, albeit the copy included in Exhibit 1 are not signed.[5]

    [5] Exhibit 1, T Documents T7, from page 55.

    What were the care arrangements prior to 11 March 2020?

17. The evidence of the Mother, which was not challenged by the Father, is the care arrangement prior to 11 March 2020 was 50% to each parent, in accordance with the Care Orders. The parents had an agreed arrangement whereby the Children were with the Mother on Monday and Tuesday and with the Father on Wednesday and Thursday. On alternate Fridays and the subsequent weekend, the Children were with one or the other parent.

18. This arrangement had been in place, with some flexibility, since 2014 and clearly establishes a regular pattern of care.

    What was likely to happen thereafter?

19. Whilst there is much angst about the events from 11 March 2020, which are discussed below, on 25 May 2020 the Father notified the Registrar care had reverted to 50% to each parent. That is, the care arrangement which applied in the four years prior to 11 March 2020 continued after 25 May 2020.

    Did special circumstances exist?

20. Potentially the Tribunal must consider if special circumstances exited on two occasions, which prevented the Mother from objecting or applying for a review in time:

    (a)When she objected to the Registrar’s decision to change the care to 100% to the Father from 11 May 2020, and

    (b)When she applied to the AAT1 for a review of the objection decision.

    What happened from 11 March 2020 to 25 May 2020?

21. At the Hearing, the Mother explained she left Brisbane on 11 March 2020 and travelled to country Victoria to attend to the sale of her father’s property and relocate him to live with her in Brisbane. The Mother expected to be away for three weeks and arranged for the Father to provide care for the Children during that time, to which the Father agreed and no change to the existing care percentages of 50/50 was contemplated as the agreement included the Mother making up care time once she returned.

22. While she was away, she developed appendicitis for which she was hospitalised twice, on 9 and 14 April 2020, and was unable to drive during that time, plus the sale of her father’s property was delayed all of which conspired to delay her return to Brisbane until 25 May 2020, a period of 11 weeks. Also, during this time the Queensland government implemented restrictions on returning residents such that a 14-day quarantine period applied from 25 March 2020.[6]

    [6] type="1">

23. The Father gave evidence at the Hearing he did not hear from the Mother for five weeks and on 11 May 2020, almost eight weeks later, he notified the Registrar the care of the Children had changed to 100% to him from 11 March 2020. There is some dispute as to what the Father told the Registrar about whether the Mother would be returning and why however this decision does not turn on those facts.

24. On 15 May 2020, the Registrar called the Mother who at that time was in country Victoria.[7] The file note of the call says its purpose was to confirm the change of care from 11 March 2020, which she did, and went on to explain she had been delayed and had offered to the Father she would make up the time on her return to Brisbane, which he had declined. The Tribunal finds the call by the Registrar on 15 May 2020 was contact with the Mother prior to the decision being made because the officer asked, and the Mother confirmed the care had been 100% to the Father from 11 March 2020. Because the notification by the Father was late, the Registrar changed the care to 0% for the Mother and 50% for the Father from 11 March 2020 to 10 May 2020 and then from 11 May 2020 to 24 May 2020, care is recorded as 0/100.

    [7] Exhibit 1, T Documents, T15, page 79.

25. That does not mean there had been a change in the care arrangement even though there has been a change in the actual care. As stated above at [‎18] and [‎19], the legislative test at first instance and on review remains the same, that is, what had happened until the date of the notification and what was likely to happen thereafter.

26. The Father decided to notify the Agency on 11 May 2020 there had been a change of care on 11 March 2020 yet two weeks later, on 25 May 2020, he again notified the care had reverted to 50% care to each parent. Perhaps poor communication between the parents prevented the Father from properly understanding the situation of the Mother at the time in Victoria.

27. There was never intended to be a change in the care arrangements. To not impact on the cost to the Father of providing care to the Children, the Mother had offered to make up the extra time she was away on her return. He chose not to accept that offer.

28. Remembering the Guide is not to be applied inflexibly and the law must prevail, the Tribunal finds there was no change in care on 11 March 2020. Meaning, it is the Tribunals view that the care percentages should be recorded as 50/50 to both parents. It follows that 54F, 54G and 54H of the Assessment Act do not apply in this case, see [‎20].

    Did special circumstances prevent the Mother from objecting to the care decision in time?

29. Despite her views, the Registrar did contact the Mother before making the decision to change the care to 100% to the Father from 11 March 2020 effective from 11 May 2020, see [‎38]. The file note made by the Registrar on 24 June 2020 says the objection was lodged within the required timeframe.[8]

    [8] Exhibit 1, T Documents, T30, page 130.

30. There were two phone calls from the Mother to the Registrar on 24 June 2020. The first records the Mother saying she disagrees with the decision of the Registrar to award care of 100% to the Father from 11 May 2020 and 0% to her from 11 March 2020. The file note of the call notes the Mother wishes to object to that decision, confirms that can be done over the phone and the call is transferred to care objections.

31. The file note of the second call notes the Mother asserts the care decision is incorrect and her objection has been lodged. Importantly and relevantly, the file note states:

    ‘[the Mother] was advised of the 60-day timeframe and impact of delays to responses. AAT Appeal rights were explained.’

    ‘The objection is due to be lodged by 30/06/2020. [the Mother] has lodged her objection within the required timeframe.’

32. Based on the above, the Mother is adamant she lodged her objection within the required timeframe. 28 days from 15 May 2020 is 12 June 2020. There was much discussion about this point at the Hearing and further submissions were requested. The Mother contacted the Registrar on 17 March 2022 and sent an e-mail to the Tribunal outlining the discussion. The following is the most relevant part of that e-mail:

    ‘This afternoon I have spoken to a child Support officer (Wendy) I forgot to get a receipt. We have discussed the document (T30 p129 & 130) with regard to my understanding of the statement on page 130 stating the objection is due to be lodged by 30/06/2020.

    [RHKF] has lodged her objection within the required timeframe.

    Wendy looked thru the document and explained that this statement is correct. I explained to her the problem I was having with the dates on the CS document and the comments that I had missed the 28-day requirement. She explained that Covid related delays were being experienced due to sickness causing staff shortages, staff being required to work from home and postal delays. The system or the operator was adding extra time to client’s due dates so the 28-day requirement was being extended and also on page 129 was adding 60 days to CS responses. This was implemented temporarily into the Child supports computer system but doesn’t seem to have been changed on the letters that were sent out.’

33. A copy of the e-mail of 17 March 2022 was sent to the Father and The Registrar for comment. The Father did not reply. Ms Smith for the Registrar responded on 25 March 2022 as follows:

    ‘I am instructed that there was no formal policy in May/June 2020 to extend the 28-day timeframe to lodge an objection due to covid-19. The Applicant states that she was advised by Child Support prior to lodging her objection on 24 June 2020, that she had until 30 June 2020 to lodge an objection. The original decision was made on 16 May 2020. Child Support records show that for the period from 16 May 2020 to 24 June 2020 there were 3 phone calls with the applicant (T30, p128; T25, p109-110; T22, p104- 105).’

34. Even if there was no formal policy to extend the 28-day timeframe to lodge objections as Ms Smith states, the fact is the Mother was advised by the officer at the Agency she had until 30 June 2020 to lodge her objection. If that advice was incorrect, possibly human error, that is not the fault of the Mother. Policy contemplates this by including as possible special circumstances the parent reasonably relying on inaccurate or misleading information. The Tribunal concurs with policy in these circumstances.

35. The Tribunal is satisfied special circumstances prevented the Mother from lodging the objection within 28 days, because she was advised by the Agency she had until 30 June 2020 and she lodged on 24 June 2020. In relation to the objection by the Mother to the care decision of 15 May 2020, the Tribunal finds subsection 87AA(1) applies as if the reference to 28 days in that paragraph were a reference to a period ended 30 June 2020.

36. Both parents agreed at the Hearing the period from 11 March 2020 to 15 March 2020 was notionally the Father’s time with the Children anyway. Again, nothing turns on this agreement.

    Pre-hearing submission by the Mother

37. Prior to the Hearing, the Mother provided a detailed submission in which she requests the care percentage decision of the AAT1 be found correct and the date of effect be changed due to what she says are special circumstances which prevented her from applying any earlier. The special circumstances she identifies are:

    (a)Permanent medically retired by QSuper on 23 May 2019,

    (b)Appointment as full-time carer for her father in June 2018 and dealing with emotional and physical needs of herself, her father and her children and the associated issues,

    (c)Her current medical conditions,

    (d)The unintended, unjust and inequitable consequences.

38. No explanation was offered by the Mother as to the reasons for her medical retirement by QSuper however the details can be gleaned from the letter from Dr Quinn discussed below. In addition, the Mother says the following medical and dental appointments occurred during the times listed:

Date from	Date to	Person	Number & type
20-10-2021[9]	30-07-2021	Applicant	31 medical
11-02-2020	30-07-2021	Applicant’s father	49 medical
03-08-2020	11-05-2021	Applicant	31 chiropractic and physiotherapy
16-02-2020	30-07-2021	Applicant and her children	17 dental
28-01-2020	07-06-2021	Applicant	5 specialists

[9] The Tribunal assumes this is a typographical error in the document and should be 2020, not 2021.

1. Further, the Mother says on 30 November 2020 she underwent carpel tunnel decompression surgery during which she had an unexpected episode while under anaesthetic, which is confirmed by Dr Purcell, see [‎56] below.

   Dr Quinn letter dated 19 July 2021

2. In addressing paragraph [‎51‎51(b)] above, the Mother relies on a letter from Dr Quinn who is the Mother’s general practitioner (GP). Dr Quinn’s letter lists several medical conditions of the Mother, which in some cases he says cause severe pain and disturbed sleep for her. His letter says he has been treating the Mother since 2015 and at the time of writing he last saw her on 23 March 2021 due to increasing pain in her lower back for which he made certain treatment recommendations, which were carried out on 6 April 2021.

3. Dr Quinn’s letter refers to the Mother being the sole carer of her father who is 92 and has his own health issues and notes the Mother cares for the Children 50% of the time. He says the combination of her own health issues, caring for her father with his health issues and caring for two teenagers contributed to the Mother not complying with the Tribunal requirements, which the Tribunal assumes means not applying to the AAT1 within the required 28 days, because they affected her concentration, attention span and decision-making ability. Although he does not say to what extent these factors contributed, he does say: ‘This [the treatment on 6 April 2021] improved her chronic pain to a tolerable level, to enable her to complete certain tasks.’ without saying what tasks she had been unable to complete. The Tribunal notes the Mother applied for the first review with SSCSD on 9 April 2021, three days after the treatment recommended by Dr Quinn.

   Dr Purcell’s letter dated 2 December 2020

4. Dr Purcell is the anaesthetist who provided an anaesthetic to the Mother on 30 November 2020 when she underwent open carpal tunnel decompression. His letter explains the Mother experienced laryngospasm, which the Tribunal understands means is an uncontrolled or involuntary muscular contraction of the vocal folds, during the surgery which required deepening of the anaesthesia and he says: ‘… the procedure concluded without incident.’ His letter concludes by saying: ‘[The Mother] was successfully treated with inhaled bronchodilators and a course of Augmentin Duo Forte was commenced. [The Mother] remained in hospital for the night for observation and was discharged the following morning.’

   Unintended, unjust and inequitable consequences

5. The Mother’s contentions about natural justice centre around the decision by the Registrar on 15 May 2020 to change the care to 100% to the Father from 11 May 2020 she says made without contacting her first to ascertain her views, and the AAT1 decision not properly considering her situation in deciding there were no special circumstances.

6. The Tribunal has already found the Agency did contact the Mother in advance of making the decision to change the care percentages as it did on 15 May 2020, see [‎38]. The Tribunal has also found the Mother did lodge her objection to the care decision on time, see [‎49]. That leaves the issue of special circumstances preventing the Mother from applying to the SSCSD for a review of the objection decision, which is discussed below.

   Did special circumstances prevent the Mother from applying to the SSCSD in time?

7. The basis of the claim by the Mother of special circumstances relies on the following:

   (a)Her medical conditions especially her lower back pain, complications from carpel tunnel surgery and other health issues.

   (b)The demands of caring for her father and her children.

   (c)She says she was told on 18 November 2020 there was no time limit in which to apply for a change of care review.

   (d)She understood she had to apply in writing.

8. There is no doubt the Mother suffers from many medical conditions which make life difficult for her.

9. In her evidence at the Hearing the Mother said her recovery from carpel tunnel surgery on 30 November 2020, and the accompanying anaesthetic complication, took three months rather than the normal six weeks. Dr Purcell’s letter acknowledges the complication with the anaesthetic during the surgery and describes the action taken. His letter concludes by saying she was successfully treated, remained in hospital overnight for observation and was discharged the next day, see [‎56]. That does not suggest to the Tribunal the complication with the anaesthetic, in and of itself, had any long-term consequences for the Mother. Recovery from the carpel tunnel surgery itself is another matter.

10. Pain can be very debilitating. According to the letter from Dr Quinn, see [‎54], the Mother suffers from:

    (a)severe Osteo-arthritis of her right shoulder joint

    (b)chronic Cervical Spondylosis with foraminal stenosis

    (c)Chronic Lumbar Facet Joint Arthritis with multi-level lumbar disc degeneration

11. Dr Quinn says the above conditions cause severe nerve root pain radiating down her right arm, daily recurrent pain with a reduced range of movement of her right shoulder and severe lower back pain and leg pain daily. As part of the treatment for this pain Dr Quinn states:

    ‘On the 23/03/2021, after seeing [the Mother] with increasing low back pain even at rest, I recommended steroid injections to her lower lumbar facet joints. This was performed on the 06/04/2021 at [redacted] Radiology clinics. This improved her chronic pain to a tolerable level, to enable her to complete certain tasks.’

12. Expanding on the above, and responding a question at the Hearing, the evidence of the Mother included:

    ‘MEMBER:  … you had a phone call, you say, on 18 November 2020, and I've made a note of that.  Why did it then take you until 12 April 21 to actually lodge the application for the review?

    RHKF:  Due to medical issues.  And that's what some of those ones that had come into you there - I mean, for - the fact is because I look after my dad - he's 93 now - I was medically retired from my position through QSuper.  So, I've been very stressed about that whole situation.  I have had multiple medical issues, as listed in the summary that I sent.  I mean, in the dates between - so before the 28 day and after - I basically - I've had 31 general doctor's appointments, my dad has had 49 doctor's appointments, chiropractor and physio, 31 appointments.  Dentist appoints for the children and myself - 17.  So, this is in between me applying in April.  In that I've had - with Qscan I've had two lumbar procedures, I've had four spine procedures, I've had two shoulder procedures, I've had three other like X-rays and things.

    I've also had two cortisone injections in my spine to relieve pain.  Now, the very important point about that - those cortisone injections - is - and I stated in my letter - I had the cortisone injection and because it released the pain, within three days of that cortisone injection I submitted by application to the AAT.  So, I was pretty much medically unable to sit down and structure this to get it done.’[10]

    [10] Transcript of proceedings, dated 1 February 2022, pages 18 and 19.

13. Dr Quinn concludes:

    ‘In my opinion, several factors including the above-mentioned medical conditions, caring for her elderly parent, caring for her teenage children, affected her concentration and attention span as well as impairing her decision-making ability. These factors all contributed to her non-complying with the tribunal requirements.’

14. According to the evidence of the Mother at the Hearing, she called the Tribunal on 18 November 2020 in what she described as an information call and says she was told:

    ‘I called them on the 18th of the 11th at 2.40 for a 12-minute phone call and they told me that there is no timeframe for a child percentage care decision and - - - ’

    Later:

    That's why I rang on 11 November - or whatever date it was - that's why I rang the AAT to get the information, and I started and things just - it just got all too hard.  Had I known that I could have just put in a request and then added information, that might have helped.  But I believed I had to get everything together and get that in.

    MEMBER:  … I've just had my associate confirm that you can lodge a request for an application for a review of a decision over the phone, and you did (indistinct) phone call. … What did you talk about in that 12-minute period?

    RHFK:  That's interesting that you just say that about the - I could lodge an application over the phone, because that was not discussed.  Not at all.  Had that been known I would have done it right there and then over the phone and then supplied information.  The discussion was to gather the information from the 2016, and - - -

    MEMBER: … Why did you call that day?

    RHFK:  Because it would have been a day that I was feeling well enough.’[11]

    [11] Ibid page 20.

15. The reference to no time limit to apply to the Tribunal for a review of a care decision is correct. There is no time limit. It is also the case if the application is outside the 28-day time limit, any decision in favour of the applicant can only apply from the date of application. It seems the date of effect issue was not recognised by the Applicant as became clear towards the end of the Hearing. Further, the objection decision is dated 10 September 2020 and the call to the Tribunal was on 18 November 2020, a period of almost 10 weeks.

16. The issue of the 28-day timeframe to apply for a review of the objection decision and the Mother’s response was discussed at the Hearing:

    ‘MEMBER:  … there it is in that letter - there's only one page of the letter, and it says quite clearly: 

    If you think this decision is wrong, you can ask the Administrative Appeals Tribunal to review it.  You must do this within 28 days from the day you receive this letter.

    And you can contact them on this number and so on.  So, you just said to me a minute ago you didn't - you were asking around various people, some of them legal, and they told you could refer the matter to the tribunal.  But that letter, unless you say you didn't get it, clearly says that's where you go if you're unhappy with the decision.

    RHFK:  Yes.  Yes, it does say that.  And I agree that was my misunderstanding and my lack of concentration to have that happened.  I mean, at that stage when this objection came through, I was going through a massive amount of investigation to find out what was wrong with me.  So, I'm afraid - yes, with pain and medication I wasn't thinking of that.  And as I said, I've never used that.  I mean I didn't use that in 2016 because I'm afraid of - yes.  I just don't have an answer other than my lack of - lack of - - -’

17. The Father noted in his evidence at the Hearing it seems implausible the Mother could not have found time in seven months to make a phone call and lodge her application for a review of the objection decision. As can be seen from the above, the Mother was severely impacted by her medical conditions. That said, the Tribunal notes the Mother was able to care for herself, her father, and her children during this seven-month period yet was not able to lodge an application for review. Given the Mother claims she did not know she could lodge the application by telephone and in any event, she had been told there was no time limit in applying for a review of a care decision, the Tribunal concludes the care of herself and others took priority over the application because she felt time was on her side.

18. The Tribunal is satisfied special circumstances prevented the Mother from lodging her application within 28 days, because she was advised by the Tribunal there was no time limit to lodge, and it had to be in writing. In relation to the application to the SSCSD by the Mother for a review of the objection decision of 18 November 2020, the Tribunal finds subsection 95N(1) of the Assessment Act applies as if the reference to 28 days in that paragraph were a reference to a period ended 9 April 2021.

    No adverse consequences

1. There is no evidence before the Tribunal this decision will impose any material financial impact on either the Mother or the Father as it only covers the period from 11 March 2020 to 25 May 2020.

   Date of effect

2. The Mother expressed confusion at the Hearing about the date of effect of childcare decisions. She believes she is recorded as having no care of the Children from 11 March 2020 to 9 April 2021 when in fact she is recorded as having no care for 11 weeks from 11 March 2020 to 25 May 2020 and that was overturned by the AAT1 decision. She is recorded as having 50% care from 25 May 2020.

3. To clarify the meaning of the term ‘date of effect’, if an application for review or an objection is made within the required 28-day timeframe, or a later timeframe if special circumstances are found, and the decision is in favour of the applicant, the decision is effective from the date of change. If, however an application for review or an objection is not made within the required 28-day timeframe, or a later timeframe if special circumstances are found, and the decision is in favour of the applicant, the decision is effective from the date of notification, not from the date the care changed. This is what happened in this case when the AAT1 decision found there were no special circumstances which prevented lodgment of the review application until 9 April 2021 (now overturned by this decision). Because the care had already changed to 50% to each parent from 25 May 2020 anyway, the AAT1 decision had no practical effect for the Mother.

4. The Mother is certain the debt of approximately $6,000 she faces results from the various decisions about this case which have gone before. That is not so. As mentioned above at [‎71], the effect of this decision will be minimal on both parties as it only covers a period of 11 weeks. It may be the debt arises due to the taxable income of the Mother being materially greater than she estimated forcing a recalculation of her benefit entitlements. It may also be the case the Mother’s 2020 personal tax return has been prepared incorrectly in that non-taxable income has been included as taxable income. Whatever the case, all of that is outside the scope of this decision.

   CONCLUSION

5. With the benefit of hindsight, the Agency could have been clearer in its advice to the Mother of the action she could take and the required time frame to do so. Its letters do state in bold the 28-day time frame to lodge however they do not state an application for review by the Tribunal can be made by telephone albeit the telephone number is included. When advising of the no time limit to lodge an objection to the Agency, or an application to the Tribunal, about a care decision it should be made abundantly clear the date of effect if outside the 28-day time frame. It’s also the case people sometimes hear what they want to hear.

6. There was no change in care on 11 March 2020 even though the actual care changed that day. It was only intended to be for three weeks and events beyond the control of the Mother prevented her from returning until 11 weeks had elapsed. She offered to make up time so as not to impact the Father financially. He chose not to accept that offer.

7. Whether the Agency had a policy to extend to 60 days the normal 28-day time frame to object to a care decision, is not relevant. The Mother was told she had 60 days and she lodged within that time frame. The Mother waited seven months to lodge her application for a review with the Tribunal. That is a long time but again events beyond her control conspired to prevent her from lodging within 28 days. Her health was poor, and she suffered from debilitating pain until a series of injections enabled her to function sufficiently to prepare and lodged her application, even though she could have done so by a simple telephone call.

   DECISION

8. The Tribunal varies the decision of AAT1 and finds special circumstances prevented the Mother from objecting to the care decision made on 15 May 2020 and in applying for a review of the objection decision made on 10 September 2020.

   That means the effect of this decision is to record the care percentages as 50% to both the Mother and the Father from 11 March 2020 to 14 May 2020.

79.     I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Member P Ranson

…………………[SGD]…………………..
Associate
Dated: 29 April 2022

Date of Hearing:	1 February 2022, final submissions received 25 March 2022
Applicant:	By Microsoft Teams
Solicitor for the Respondent:	Ms Donna Smith
Other Party	By Microsoft Teams