Rodham and Rodham (Child support)

[2023] AATA 2661

Rodham and Rodham (Child support) [2023] AATA 2661 (5 July 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/BC025601

APPLICANT:  Mr Rodham

OTHER PARTIES:  Child Support Registrar

Ms Rodham

TRIBUNAL:Member S Letch

DECISION DATE:  5 July 2023

DECISION:

The decision under review is varied so that the child support assessment for [the child] is extended beyond his 18th birthday until 4 November 2022 (not 16 November 2022).

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – late application to extend the child support assessment beyond the child’s eighteenth birthday – exceptional circumstances exist – decision under review varied

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted 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

1. Mr Rodham and Ms Rodham are the parents of [the child], born [September] 2004. This matter concerns a decision by Child Support to accept an application by Ms Rodham to extend the child support assessment for [the child]

2. It is convenient to set out some extracts from the objection decision dated 29 January 2023 by way of background:

   DECISION UNDER REVIEW

   Ms Rodham is objecting to the decision made on 27 October 2022 to refuse to accept an application to extend child support for [the child] past his 18th birthday.
   An assessment has been in place between Ms Rodham and Mr Rodham for [the child], born [September] 2004, since 28 March 2008.

   On 25 July 2022 Ms Rodham notified us that the care arrangements from [the child] changed from 17 July 2022 and she now provides 100% care. Our records show during this conversation we advised Ms Rodham that she would have the option to extend the child support for [the child] past his 18^th birthday. We advised Ms Rodham that once she receives a letter advising the care decision has been made she needs to contact us and lodge the application to extend the child support over the phone.

   On 14 September 2022 we made the decision to record Ms Rodham provides 100% care and Mr Rodham provides 0% care of [the child] from 18 July 2022.

   On 14 October 2022, Ms Rodham contacted us to discuss extending the child support assessment with Mr Rodham for [the child]. Our records show she made an application to continue to assess child support for [the child] until 16 November 2022.

   On 17 October 2022, we recorded Ms Rodham’s application to extend the child support for [the child] and a letter was issued to Mr Rodham notifying him of the application.

   On 24 October 2022 Mr Rodham contacted us and disagreed with the application. Mr Rodham stated that he spoke to [the child] on his 18th birthday and [the child] told Mr Rodham that he is working but wouldn't give any details. Mr Rodham doesn't agree to extend for the reason that it is over a month after [the child]’s birthday and it shouldn`t be allowed unless in exceptional circumstances. Mr Rodham said he doesn't know if [the child] is still at school as [the child] told him he was working when he spoke to him on his birthday.

   On 27 October 2022 we refused Ms Rodham`s late A18 application to extend the child support
   assessment for [the child] until 16 November 2022. We issued letters to both parties advising of the decision.

   On 22 November 2022, Ms Rodham objected to this decision. Ms Rodham advised [the child] finishes year 12 on 16 November 2022. This date has not been disputed and we are satisfied [the child]`s last day of secondary school is 16 November 2022.

   Ms Rodham states that she tried to apply for an extension of [the child]`s child support prior to [the child] turning 18, however was advised by us that she needed to wait until the change in care was finalised before she could make her application. Mr Rodham disputes that Ms Rodham tried to apply to extend the child support in July 2022.

   Our records show on 25 July 2022 Ms Rodham lodged a change in care for [the child] and asked about extending the child support for [the child]. It is clear that Ms Rodham was advised that she could lodge the application to extend the child support when the care change was finalised. The care decision was made 14 September 2022 and letters were issued to both parents advising of the decision.

   Ms Rodham made her application to extend the child support for [the child] on 14 October 2022.

   Mr Rodham's claim is that the application should be refused as he received his letter in relation to the
   care decision within a week of the care decision having been made.

   We set a timeframe of 21 days for letters to be received by our customers and while Mr Rodham may
   have received his letter within a week this does not mean that Ms Rodham also received her letter in the same timeframe.

   We do consider that on 25 July 2022 it was Ms Rodham's intention to extend the child support for
   [the child] past his 18th birthday however Ms Rodham was guided by the information provided to her by the service officer and did not make an application that same day. The details for an application to extend the child support could have been recorded that day pending the outcome of the care
   decision

   Given the circumstances of the case we are satisfied that exceptional circumstances do exist that
   contributed to Ms Rodham lodging the application late to extend the child support for [the child].
   As such, we are satisfied that exceptional circumstances' existed which prevented Ms Rodham from making the application before [the child]'s 18th birthday.

   We have made the decision to accept Ms Rodham's application to extend the child support assessment beyond [the child]'s 18th birthday until 16 November 2022.

   Ms Rodham's objection is allowed.

3. Mr Rodham and Ms Rodham participated in the Tribunal’s hearing by conference telephone.

4. In short, Mr Rodham told the Tribunal that he considers there were not exceptional circumstances warranting the acceptance of Ms Rodham’s application after [the child] [the child] turned 18 years of age. He also contends that even if the application is accepted, the last day of his schooling was 4 November 2022, not 16 November 2022. Mr Rodham suggested that Ms Rodham’s failure to accept an offer by Child Support for an online account (including online letters) contributed to her failure to apply in time. Mr Rodham referred to guidelines for “exceptional circumstances”, none of which he said applied to Ms Rodham. Indeed, Child Support refused to accept the application in the first instance.

5. Regarding [the child]’s last day of school, Mr Rodham was not given any opportunity to challenge the “end date”; documents provided by Ms Rodham reveal [the child]’s last day was 4 November 2022: folio 101. He said his independent research reveals the last day of exams was 4 November 2022.

6. Ms Rodham said she “knew she was at the school on 16 November 2022” for [the child]’s graduation; Child Support asked her when he finished and she thought his “last day” was 16 November 2022 (I note that [the child]’s graduation certificate is dated 18 November 2022). Ms Rodham thought [the child] had sat exams; however, she was unclear when the  “exam period” ended. Ms Rodham suggested that if 4 November 2022 was the end of [the child]’s exam period, Mr Rodham should be prepared to accept a date “half way”. Ms Rodham said [the child] was suffering mental health issues, including suicidal ideation.

7. Ms Rodham told the Tribunal that she contacted Child Support as soon as [the child] had left Mr Rodham to live with her. She said Mr Rodham had told Child Support [the child] was living elsewhere, and was not at school. Child Support asked her to provide more evidence before making a care change; she had been assured on multiple occasions that she was “guaranteed” to have the case for extension accepted once the care change had been finalised. Ms Rodham said she followed advice from Child Support “every step of the way”. Ms Rodham rejected Mr Rodham’s suggestion she should have accepted “online service”; she said it presented to her as an option, and that is she is “old school” and prefers “paper in front of her”. This is why she preferred to receive letters via post. She said that she did not receive the letter of 14 September 2022 (confirming the decision to change recorded care) until a day or two before she contacted Child Support on 14 October 2022; she said she would not have wanted to “let it go too long” as she was surprised the case had not been extended.

8. Mr Rodham suggested Ms Rodham would already have had a “myGov account” for vaccination purposes, so it would have been a small step for her to accept online services from Child Support, particularly given she was wanting to apply to extend the case. Ms Rodham said she is not vaccinated, and it was “her choice” about whether to opt in or not. Mr Rodham said that he received the letter of 14 September 2022 “within a few days”; he and Ms Rodham live in South East Queensland so he did not accept she received it four weeks later. He said that he received a call from Child Support on or shortly after 14 September 2022; he suggested Ms Rodham must have been called, too. Ms Rodham said she had not received a call; if she had, she would have raised the extension issue, as she had done in all contact with Child Support. Mr Rodham also suggested Ms Rodham should have a letter “written out in advance” to ensure she could apply prior to [the child]’s 18th birthday.

9. Section 151C of the Child Support (Assessment) Act 1989 requires an application to extend a case beyond a child’s 18th birthday to be made prior to that day; unless, in the Registrar's opinion, exceptional circumstances justifying the making of the application after the child's 18th birthday.

10. The legislation does not prescribe what amounts to “exceptional circumstances”. The Child Support Guide, at 2.5.5, provides the following guidance:

    Consideration of late applications

    The Registrar can accept an application made after the child's 18th birthday if, in the Registrar's opinion, there are exceptional circumstances justifying the making of the application after the child's 18th birthday (CSA Act section 151C(2)(e)(ii)). The following are examples of circumstances that the Registrar may consider 'exceptional' in deciding whether to accept a late application. This is not an exhaustive list and each case must be considered on its own merits.

    ·Serious health problems delayed lodgement (written confirmation from a health practitioner will be required).

    ·An application for an assessment has been made but not accepted before the child turns 18, and it was unclear whether the child would be in secondary full-time education.

    ·The carer was under pressure not to apply (evidence from a person fully aware of the nature and details of the circumstances, for example, a social worker or police officer, will be required).

    ·Severe distress or hardship (for example, caused by a disaster such as fire or flood) delayed lodgement.

    ·Communication difficulties led to an inability to access information (a result of geographical location, cultural issues, literacy, language difficulties, etc.).

    The exceptional circumstances must relate to the reasons that justify the making of the application after the child's 18th birthday and not to the consequences to the individual of making a late application

11. Importantly, the “shopping list” of factors is described as not exhaustive.

12. The circumstances leading up to [the child] turning 18 were unusual; it is not common for a “change of care” (so that the paying parent becomes the payee, and vice versa) to occur at the time it did.

13. I note that it appears Mr Rodham initially did not agree with Ms Rodham’s reported change of care; it appears this resulted in Child Support seeking further evidence from Ms Rodham. It is possible that if the change of care had been accepted by Child Support from an earlier date that Ms Rodham would have had the opportunity to seek an extension prior to 22 September 2022.

14. I do not accept Ms Rodham was compelled to accept the “online service offer” from Child Support. It is not mandatory; Ms Rodham was perfectly entitled to prefer correspondence by ordinary post.

15. I generally accept Ms Rodham’s evidence. I consider it more likely than not that she received the letter of 14 September 2022 (confirming the acceptance of the change in recorded care) after [the child] turned 18 years of age. I accept she made contact with Child Support within a reasonable period of time of receiving the letter (on 14 October 2022).

16. I accept Ms Rodham’s evidence that she had been assured by Child Support officers that the case would be extended once the care matter had been resolved, and that she was not advised that she would be required to make a “formal application”.

17. I therefore consider that a concurrence of a number of factors meet the description of exceptional circumstances justifying an application being made after [the child] turned 18 years of age. I find the discretion should properly be exercised in Ms Rodham’s favour and the application to extend the case should be accepted.

18. However, I agree with the submission by Mr Rodham that the day to which the case should be extended is 4 November 2022 (not 16 November 2022). The Guide provides the following:

    Last day of secondary school for the year

    The Registrar can continue a child support assessment for a child up to the last day of the school year in which the child turns 18. The last day of the secondary school year is either:

    ·if the child is not required to sit an examination, the last day of classes for the school year (as determined by the school), or

    ·if the child is required to sit an examination, the later of the last day of

    othe period of examinations for the child's year level, or

    oclasses for the school year (as determined by the school (CSA Act section 5)).

19. Ms Rodham recalled [the child] was subject to an examination period; I am satisfied that the last day of that period corresponds with the document at folio 101 of the hearing papers and that the likely last day of [the child]’s exam period was 4 November 2022.   

20. As I have reached a slightly different conclusion to the objections officer, I will vary the decision under review.

DECISION

The decision under review is varied so that the child support assessment for [the child] is extended beyond his 18th birthday until 4 November 2022 (not 16 November 2022).