SVKT and Child Support Registrar (Child support second review)

Case •

[2024] AATA 307

•

29 February 2024

SVKT and Child Support Registrar (Child support second review) [2024] AATA 307 (29 February 2024)

Division:GENERAL DIVISION

File Number(s):      2022/10688

Re:SVKT

APPLICANT

AndChild Support Registrar

RESPONDENT

AndYMCJ

OTHER PARTY 1

AndVCPL

OTHER PARTY 2

DECISION

Tribunal:Mr A. Maryniak KC, Member

Date:29 February 2024  

Place:Melbourne

The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

..............................[sgd]..........................................

Mr A. Maryniak KC, Member

Names used in this published decision 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) and by order of the Tribunal dated 8 November 2023 pursuant to s 35(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

Catchwords

CHILD SUPPORT – objection to date of effect of percentage of care determination – where mother applied for second tier review outside the 28-day period – whether there were special circumstances that prevented lodgement – Tribunal not satisfied of special circumstances which prevented lodgement within the requisite time period – decision under review affirmed.

Legislation

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

Cases

Angelakos and Secretary, Department of Employment and Workplace Relations [2007] FCA 25

Beadle and Director-General of Social Security (1984) 6 ALD 1

Drainchnikov v Centrelink [2003] FCAFC 133

Groth v Secretary, Department of Social Security [1995] FCA 1708

GWNS v Child Support Registrar, DNVW [2016] AATA 576

GZBC and Child Support Registrar [2020] AATA 359

PBVS and Child Support Registrar (Child support second review) [2022] AATA 74

RCBZ and Child Support Registrar (Child Support Second Review) [2021] AATA 4435

Singleton and Secretary, Department of Social Services [2019] AATA 766

Secondary Materials

Australian Government, Guides to Social Policy Law, ‘Child Support Guide’, Version 4.79, 5 February 2024

REASONS FOR DECISION

Mr A. Maryniak KC, Member

  1. The Applicant seeks review, by application dated 6 January 2023, of a decision of the Social Security and Child Support Division of this Tribunal (AAT1) made on 20 December 2022 which declined to make a determination pursuant to subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 (Cth) (‘the Act’). The AAT1 determined that there were no ‘special circumstances’ which prevented the Applicant from lodging her application for review of an 8 April 2022 objection decision (‘the Objection Decision’) made by the Child Support Agency (‘the Agency’) within the requisite 28 days. In fact, the Applicant did not make such application until 18 August 2022.

  2. This Tribunal (AAT2) is to determine de novo, on the evidence now before it, whether it is satisfied that there were special circumstances which prevented the Applicant from lodging that application for review within 28 days of the Objection Decision, and if so satisfied, then whether in its discretion, it should extend the time for lodging such application to 18 August 2022, pursuant to s 95N(2) of the Act.

Background

  1. As noted in the AAT1’s December 2022 decision, the Applicant and Other Party 1 are the parents of a daughter born in 2009.  Earlier, on 14 November 2022, the AAT1 made a decision to set aside a decision under review and, in substitution, determined that the Applicant had a care percentage of 50% care of her daughter from 27 January 2022.

  2. On 12 December 2022 the AAT1 wrote to the Applicant seeking her submissions in relation to whether she applied to the Tribunal or attempted to do so, within 28 days of receiving written notice of the Objection Decision; and if she did not do so, the reasons she did not apply within time.  No submissions were then received. The Tribunal notes the Applicant states she had Covid at that time and that the 12 December email went to her junk folder.[1] Such lack of response then is not the subject of this review application.

    [1] Applicant Statement, paragraph [34].

Evidence

  1. The Tribunal has considered the documentary materials lodged, including:

    (a)the Applicant’s Statement dated 8 September 2023 and Appendices 1-10, an arbitration decision of the Dubai Courts dated December 2016, a Federal Circuit Court Order of May 2018 and an unsigned temporary living arrangement regarding the daughter dated 13 January 2022;

    (b)written statements from each of the two Other Parties; and  

    (c)the T-documents and the Agency’s Statement of Facts, Issues and Contentions dated 12 December 2023.

  2. The Tribunal has also considered the oral evidence and submissions of the parties made during the hearing.

Legislative Framework

  1. The Tribunal has jurisdiction to review the decision under s 95N(2) per s 96A(c) of the Act. The period to be examined apropos of any special circumstances preventing lodgement is 8 April 2022 to 6 May 2022 (‘the Relevant Period’): see also s 14A of the Electronic Transactions Act 1999 (Cth).

  2. The Act relevantly states:

    95N Date of effect of AAT first review decision relating to care percentage decision

    (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.

    (3)  The AAT must give written notice of a decision to make, or not to make, a determination under subsection (2) in relation to a person, to each person affected by the decision.

    Note: The AAT’s decision about the determination is reviewable (see paragraph 96A(c)). The review is an AAT second review.

Consideration

  1. Whilst not defined in the Act, ‘special circumstances’ must not only objectively be ‘unusual’, ‘uncommon’ or ‘out of the ordinary’,[2] but they must also have ‘prevented’ the application from being lodged within time, in this instance, by 6 May 2022: see s 95N(2) of the Act. Special circumstances are not simply those which make it ‘difficult’ or challenging for an applicant to lodge an application for review, they also ‘must have been such that they served as an insurmountable block, hindrance or impediment to the lodgement taking place within the required timeframe’,[3] consequentially preventing such lodgement.

    [2] Beadle and Director-General of Social Security (1984) 6 ALD 1, 3; Drainchnikov v Centrelink [2003] FCAFC 133, [66]; Groth v Secretary, Department of Social Security [1995] FCA 1708, [12] per Kiefel J, cited with approval in Angelakos and Secretary, Department of Employment and Workplace Relations [2007] FCA 25, [33] per Besanko J; GWNS v Child Support Registrar, DNVW [2016] AATA 57, [18]; GZBC and Child Support Registrar [2020] AATA 359, [50]; PBVS and Child Support Registrar (Child support second review) [2022] AATA 74.

    3 RCBZ and Child Support Registrar (Child Support Second Review) [2021] AATA 4435, [31]; Singleton and Secretary, Department of Social Services [2019] AATA 766, [42].

  2. Further, in the absence of any definition in the Act, ‘prevented’ carries its ordinary, everyday meaning that is to ‘hinder’ or stop.[4]  

    [4] Macquarie Dictionary, (online at 29 February 2024) ‘prevent’ (def 1).

  3. This approach is consistent with the guidance as to ‘special circumstances provided in the Child Support Guide:[5]

    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 the date of the original decision. 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.

    [5] Australian Government, Guides to Social Policy Law, ‘Child Support Guide’, Version 4.79, 5 February 2024 at 4.1.8. ‘Special Circumstances’.

  4. The Applicant was represented by Mr Palmer of Counsel both at the directions hearing on 18 October 2023 and at the hearing of this application on 7 February 2024.  He essentially relied upon the content of the Applicant’s statement dated 8 September 2023 and its Appendices, and the Applicant did not supplement that evidence with any substantive oral evidence at the hearing.

  5. Submissions regarding the Applicant’s statement included that paragraphs 1 to 15 set out important background to the time leading up to the Relevant Period that the Tribunal is to consider. The Tribunal notes that the Applicant experienced significant difficulties when her daughter went to visit her father (and his mother) in December 2021 but did not return until June 2022, despite being due back by 28 January 2022 to then commence her school year.  The Applicant never agreed to the extended time with the two Other Parties, YMCJ and VCPL, and this clearly was very challenging and distressing for the Applicant.

  6. The failure to return ‘re-triggered’ significant metal health challenges for the Applicant in the early part of 2022.[6] However, in early 2022 the Applicant was, inter alia, able to attend to emails regarding her daughter’s extended time with YMCJ and VCPL and was able to deal with the alternate school her daughter was then enrolled in (against the wishes of the Applicant) and attended in the first half of 2022. In addition, the Applicant was able to attend virtual parent-teacher interviews on 6 April 2022, maintain contact with the year level leader and was in weekly contact with that school including the Relevant Period up to June 2022.[7]

    [6] Applicant Statement, paragraph [8].

    [7] Applicant Statement, paragraph [17] and Appendix 8.

  7. More than a month after the Relevant Period, the Applicant saw a clinical psychologist (‘CP’), who succinctly reported, with no reference to any earlier time period, that on 10 June 2022 the Applicant [presented with symptoms of mental distress, which she attributed to past family violence traumas that had been triggered by the Applicant's contemporaneous circumstances related to her former partner].[8]

    [8] Applicant Statement, Appendix 4.

  8. Save for that report, no other evidence of any other appointments or any treatment(s) from any mental health practitioners, including CP, is before the Tribunal. Further, there is a generality to the evidence which is before the Tribunal which lacks specificity when it comes to the Relevant Period and no direct evidence suggests that the Applicant was ‘prevented’ from lodging her review application during that time. The highest the evidence gets is where the Applicant states:[9]

    Due to my triggered emotions of trauma associated with domestic and family violence, I was not strong enough to appeal to the AAT of the decision made by CSA in April 2022 of 0% care to myself for [daughter] and was only able to in August, 2022 under the encouragement of CSA.

    [9] Applicant statement, paragraph [31].

  9. Such evidence lacks any specificity and is not consistent with the preponderance of the Applicant’s evidence which indicates that she was functioning and attending to various administrative and other matters throughout 2022, including during the Relevant Period.

  10. It is clear from the Applicant’s statement that in the lead up to,  during, and after the Relevant Period she was able to function day to day as discussed above and was paying school fees,[10] making and paying for appointments,[11] dealing with a significant range of conditions her daughter was being diagnosed with, including interactions with NDIS,[12] and not receiving any mental health treatment, other than the one EMDR treatment in June 2022.

    [10] Applicant Statement, paragraph [20].

    [11] Applicant Statement, paragraph [25].

    [12] Applicant Statement, paragraph [28].

  11. The only evident treatment the Applicant has received is discussed in her statement where she “..sought the help of [CP], who performed EMDR Therapy (Eye Movement Desensitisation [and Reprocessing] Therapy) to help with being retriggered with what was considered on-going family violence…the EMDR helped and I was able to gain strength later on to drive to [YMCJ and VCPL] and bring [daughter] home” in June 2022.[13]

    [13] Applicant Statement, paragraph [8].

  12. On balance, whilst the Tribunal accepts that the Applicant faced very significant challenges during 2022, including within the Relevant Period, the Tribunal is not satisfied that there were special circumstances which prevented the Applicant from lodging the review application on time. The evidence, objectively assessed, shows that the Applicant, despite significant challenges (which the Tribunal accepts) was otherwise functioning day to day and attending to numerous administrative and other aspects of life and engaging with various individuals and organisations.

  13. By reason of the above matters the Tribunal finds that there were not special circumstances that prevented the Applicant from lodging the review application within the requisite 28 days of 8 April 2022, pursuant to s 95N(2) of the Act.

DECISION

  1. The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Mr A. Maryniak KC, Member

.................................[sgd].......................................

Associate

Dated: 29 February 2024

Date of hearing:

7 February 2024

Counsel for the Applicant:

Mr David Palmer

Advocate for the Respondent:

Ms Kathryn Lieschke, Services Australia

YMCJ

Self-represented

VCPL

Self-represented

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0