TLWQ and Child Support Registrar (Child support second review)
[2024] ARTA 29
•3 December 2024
TLWQ and Child Support Registrar (Child support second review) [2024] ARTA 29 (3 December 2024)
Applicant:TLWQ
Respondent: Child Support Registrar
Other Parties: KZJW
Tribunal Number: 2022/10061
Tribunal:General Member A. E. Burke
Place:Melbourne
Date:3 December 2024
Date of written reasons: 2 January 2025
Decision:The Tribunal sets aside the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 24 October 2022 and, in substitution, affirms the objection decision of an authorised officer of the respondent dated 13 April 2022
........................................[SGD]................................
General Member A. E. Burke
GENERAL DIVISION
Catchwords
CHILD SUPPORT – review of care percentage determinations – whether there has been a change in the pattern of care – whether existing determination of care should be revoked – conflicting evidence – whether special circumstances existed that prevented Applicant lodging objection – decisions under review set asideLegislation
Administrative Review Tribunal Act 2024 (Cth)
Child Support (Assessment) Act 1989 (Cth)
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
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Dranichnikov v Centrelink [2003] FCAFC 133
Groth and Secretary Department of Social Security (1995) FCA 1708Secondary Materials
Department of Social Services, Child Support Guide (Guides to Social Policy Laws, version 4.69, 6 February 2023)Names used in all child support 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 sections 16(2AB)–16(2AC) of the Child Support (Registration and Collection) Act 1988
Statement of Reasons
The Applicant, TLWQ, is seeking a second-tier review by the General Division of the Administrative Review Tribunal (ART2) of a decision by the Social Security and Child Support Division of this Tribunal (AAT1) of 24 October 2022. The AAT1 set aside the decision of the Registrar dated 13 April 2022 and in substitute determined:
The Tribunal sets aside the decision under review and, in substitution, decides that TLWQ had a care percentage of 0% for A and H from 1 February 2018.
KZJW’s prior care percentage of 0% for A and H has not been revoked and therefore continues from 1 February 2018 until affected by a later care determination.
The application was heard on 3 December 2024 by telephone. TLWQ elected not to attend owing to ongoing health issues, KZJW (the Other Party) was self-represented and, Mr Aaron Taverniti of Sparke Helmore appeared for the Child Support Registrar (CSR) (the Respondent). The Tribunal made an oral decision to set aside the decision of the AAT1 and in substitute reinstate the Registrar’s original determination of 13 April 2022 for the following reasons.
BACKGROUD
The Applicant, TLWQ, and the Other Party, KZJW are the parents of two children born in 2003 and 2005 respectively, who the Tribunal will refer to as child A and child H.
The following is taken from the numerous child support agency assessments of TLWQ and KZJW’s % care of child A and child H since 2017 until 2021.
A CSA screenshot of care production records TLWQ had 100% care of child H from 1 March 2017 to 15 February 2018.
A CSA screenshot of care production records TLWQ had 100% care of child A from 22 October 2017 to 15 February 2018.
On 20 March 2018, an authorised officer of the Registrar recorded that KZJW had 100% care of child A and 100% care of child H from 16 February 2018.
On 12 June 2018, an authorised officer of the Registrar recorded that TLWQ had 100% care of child A from 21 May 2018.
On 4 November 2019, the Registrar advised TLWQ and KZJW they had updated their child support care percentage:
Our records now show you have:
TLWQ had a 100% care of A from 21 May 2018 to 28 October 2019.
KZJW had a 100% care of A from 29 October 2019.
On 26 June 2021, an authorised officer of the Registrar recorded that TLWQ and KZJW had 0% care of child A from 8 May 2021, this ended child support assessment for child A.
On 13 December 2021, an authorised officer of the Registrar recorded that TLWQ had 100% care of child H from 8 December 2021.
On 20 December 2021, an authorised officer of the Registrar recorded that TLWQ and KZJW had 0% care of child H from 20 December 2021, this ended child support assessment for child H.
On 22 April 2022, an Authorised Review Officer (ARO) for the Child Support Registrar rejected TLWQ’s appeal against the CSR’s determination on 23 March 2018 that KZJW had 100% care of child A and H from 16 February 2018. The reasons for decision:
REASONS FOR THE DECISION
In this case, we applied new care information for A and H we received from Centrelink.
On Contacting KZJW, he stated that he has had 100% (365 nights) care of A and H as per a federal court order since 2018.
To support her objection, TLWQ provided statements from a third party. These two statements provide conflicting information about the care for A and H.
In this case, it is clear that there is conflicting information as to when A and H have been in the care of TLWQ, KZJW and the third party.
To make a determination about the care we consider any verbal statements, evidence supplied as well as information available on the case.
The evidence supplied does not clearly show that the care for A and H has been anything different to what is currently reflected on our records.
In the absence of any evidence to support an alternative to the current care, we are unable to find that there should be any changes.
The objection is disallowed.
WE CONSIDERED THE FOLLOWING SPECIAL CIRCUMSTANCES
TLWQ lodged late on the grounds that she had been told in the past by us to find evidence to support an objection and has not been able to obtain any until now.
On investigating our records we have found that there is no record of TLWQ having any such conversations with. We note that there has been times that new care events have been reported, which were escalated to our Integrated Care Team as they were disagreed. It was disagreed care that requested evidence and there had been no record of an objection.
We find that special circumstances did not prevent TLWQ from objecting earlier.
On 24 October 2022, AAT1 set aside the decision under review. The Presiding Member at AAT1 decided:
25. The Tribunal observes that it needs to be satisfied, on the balance of probabilities, that there was a change in care, and again, on the balance of probabilities, what the change was.
25. At the hearing, both TLWQ and KZJW said that A and H were not in their care from some early point in 2018 onwards. KZJW said that the children were in the care of TLWQ in early 2018 and TLWQ said that the children had run away to KZJW’s parents.
26. Based on the evidence before it, the Tribunal is satisfied that in early 2018, the care of the children changed and they went from being in TLWQ’s care, to the care of KZJW’s parents. The Tribunal is satisfied, based on the evidence of TLWQ, that A and H had run away from her home to that of KZJW’s parents and accordingly, the Tribunal finds that the care of A and H was not delegated. Further, based on the evidence before it, the Tribunal is satisfied that A and H were with their paternal grandparents for at least from February 2018 to May 2018, a period of at least three months. This is such a lengthy period that the Tribunal is satisfied that this was a change in the pattern of care.
27. The Tribunal then needed to ascertain on which date the care changed. As TLWQ appears to have a stronger grasp than KZJW on where their children were, the Tribunal accepts that H and A did run away in early 2018, and as TLWQ said this occurred in late January, possibly early February, the Tribunal concludes that the change in care should be recorded as being from 1 February 2018 and that the change in care was that the care percentage change was 0% to TLWQ. KZJW’s level of care remained at 0%.
Date of effect – Do special circumstances apply?
32. TLWQ told the Tribunal that A and H had run away to their grandparents’ home. According to Child Support, TLWQ said that she had been told to find evidence to support her objection in relation to the current matter and that is why there was a delay in her lodging her objection. Child Support, however, said its records do not show that this conversation occurred. Rather, there is history of care events that have been reported and dealt with when they were disagreed with.
33. There is no evidence before the Tribunal that TLWQ was prevented from lodging an objection to the original care percentage decision within the required 28 day timeframe.
34. The Tribunal concludes that TLWQ’s circumstances are not such that she was prevented from objecting to the original decision within 28 days, so decides that it is not appropriate to make a determination under subsection 87AA(2) of the Registration Act to extend the 28-day period in which objections to care percentage decisions are to be lodged in the case of TLWQ’s objection.
On 22 May 2023, TLWQ requested a review of the AAT1 decision by ART2 on the basis that:
My apologies for the delay I have not been mentally able to deal with this until now
Back when the children ran away and were living with KZJW parents I didn’t not have any evidence as the children were made to lie to me and say they were residing with their father so I was unable nor did I know the law about 28 days to object the care arrangement, back then at point in time It was very stressful and I was very ill. It was later I was asked from child support to collect evidence and get a lawyer.
I know Child support say they have no record of that but I Clearly remember the conversation.
I had been fighting in court since 2007 to keep my children away from KZJW’s father. I have all court orders and can produce them if required.
It was very hard for me to meet with KZJW ‘s parents and talk, that’s when they opened up and told me when the girls were supposed to be in KZJW care they have been residing with them for years without financial support from their son KZJW.
Their has always been court orders against KZJW’s father being in the presents of A and H this is why the children were made to lie on were they were residing KZJW Cleary stated in the hearing the children have always resided with his parents not him.
As the Act to not overturn the decision of change of care from 2018 child support are still in process of recovering $12,638.41(with penalty’s occurring monthly) as arrears child support payments to KZJW even though it Clearly shows the children were never in his care as he stated in the hearing.
This is causing undue stress on my family that is already under a lot of stress. I am still a single mum trying to raise and support my children and do not have the capacity to pay KZJW nor do I want to as its very unjust.
ISSUE
There are 2 distinct issues for determination before the Tribunal.
The first is in relationship to TLWQ’s objection to the AAT1 determination:
whether special circumstances prevented her from objecting to the 2018 care decision within 28 days of being served with notice of that decision.
The second is in relationship to KZJW’s objection to the AAT1 determination:
whether there has been a change in the pattern of care for the children from 1 February 2018
LEGISLATIVE FRAMEWORK
10. The relevant legislation, the Child Support (Assessment)Act (‘CSA Act’), contains a complex and confusing scheme for the determination of the pattern of care for a dependent child. The scheme determines the percentage of care, in this case, for each parent. The percentage of care is generally determined by the actual care each parent is providing the child and is often guided by a care agreement. In this case, there were various parenting orders over time which did not greatly assist the Tribunal in its determination.
11. Section 87(1) of the Child Support (Registration and Collection) Act (‘Collection Act’) requires the Registrar to consider an objection and either disallow it or allow it in whole or in part. Section 87AA of the Collection Act governs the date of effect of objection decisions. It provides:
87AA Date of effect of objections relating to care percentage decisions that are allowed (1) If: (a) a person lodges, under section 80A, an objection to a care percentage decision; and
(b) the objection is lodged more than 28 days or, if the person is a resident of a reciprocating jurisdiction, 90 days after notice of the care percentage decision was served; and
(c) 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.
(2) If the Registrar is satisfied that there are special circumstances that prevented the person from lodging the objection within the period referred to in paragraph (1)(b), the Registrar may determine that subsection (1) applies as if:
(a) in a case where the person is a resident of a reciprocating jurisdiction—the reference to 90 days in that paragraph were a reference to such longer period as the Registrar determines to be appropriate; or
(b) otherwise—the reference to 28 days in that paragraph were a reference to such longer period as the Registrar determines to be appropriate.
(3) If:
(a) the Registrar decides to make a determination under subsection (2) in relation to a person; or
(b) the Registrar decides not to make such a determination in relation to a person; the Registrar must give written notice of the decision to each person affected by the decision.
(4) The notice must:
(a) set out the reasons for the decision; and
(b) include a statement to the effect that, if the person is aggrieved by the decision, application may be made, subject to this Act and the AAT Act, to the AAT for review of the decision.
(5) A contravention of subsection (4) in relation to a decision does not affect the validity of the decision
12. The term ‘percentage of care’ is defined in section 5 of the CSA Act:
percentage of care, in relation to an individual who cares for a child, means the individual’s percentage of care for the child that is determined by the Secretary under Subdivision D of Division 1 of Part 3.
13. The Tribunal is assisted by the Guide to Social Policy Law: Child Support Guide (the Guide). The Guide provides assistance to those who administer the CSA Act. While it is not bound to apply policy guidelines, the Tribunal will usually do so unless there are cogent reasons in a particular case not to do so (See Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
14. The Guide clearly outlines that the guiding principle of the CSA Act is the duty of care a parent owes to their child, which is not affected by the duty any other person has to maintain the child. The Guide states at 1.3.1:
Principal object
The principal object of the CSA Act is to ensure that children receive a proper level of child support from their parents.
Particular objects
The particular objects of the CSA Act include:
·that the level of financial support is provided in accordance with the parents' capacity to provide financial support - parents with a like capacity should provide like amounts
·that the level of support should be determined in accordance with the costs of the children
·that carers should be able to have the amount of financial support assessed without the need for court proceedings
·that children share in changes in the standard of living of both of their parents, whether or not they live with both or either of them, and
·that Australia is in a position to give effect to its obligations under international agreements or arrangements which relate to maintenance obligations arising from a family relationship, parentage or marriage.
…
Duty of parents to maintain their children
The CSA Act also states that a parent has a primary duty to maintain their child. This duty:
·is not lower in priority than the duty of a parent to maintain any other child or person
·has priority over all commitments of the parents apart from necessary commitments for self-support or necessary commitments to support another child or person that the parent has a duty to maintain, and
·is not affected by the duty of any other person to maintain the child or any entitlement the child or another person may have to receive an income tested pension, benefit or allowance.
15. The Guide, at 2.2.2, provides the following guidance on determining types of care determinations:
When determining a percentage of care, the Registrar can make the following types of determinations:
·a determination of the percentage of the actual care that each parent provides (sections 49 and 50)
…
The Registrar will usually determine a percentage of care based on the actual care that each parent or non-parent carer has of the child. The only circumstance in which the Registrar will not use actual care to determine the care percentage is in limited circumstances where a parent or non-parent carer is not complying with a written agreement, court order or parenting plan and an interim care determination is in effect (disputed care arrangement).
When the Registrar is notified or otherwise becomes aware that the care for a child has changed, the previous determination will be revoked. A new care determination will be made according to the circumstances.
16. The Guide provides the following on determining a change in pattern of care at 2.2.2:
When considering whether to make a new care determination, the Registrar will consider whether there has been a change to the existing pattern of care. If there has been a change to the pattern of care, the Registrar will need to identify the event that is relevant. The event is used to determine the commencement of the care period. The Registrar will need to determine the percentage of care that is likely to occur in the care period.
What constitutes a change to the pattern of care will depend upon the individual circumstances of the case.
17. The Guide provides the following on determining whether care exists at 2.2.1:
Determining whether care exists
An object of the CSA Act is ‘that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings’ (section 4(2)(c)). The CSA Act does not define the term ‘ongoing daily care’, however the Registrar will take into account a number of factors in determining whether a person cares for a child.
In most cases, it will be relatively clear whether and to what extent a person is caring for a child. However, where there is doubt, the Registrar will consider whichever of the following are relevant to the particular case, based on the extent to which the:
·person has control of the child, including having overall responsibility for the child and making
omajor decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities, and
oarrangements for others to meet the needs of the child (delegated care)
·person meets the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra-curricular activities
·person pays for the costs of meeting the needs of, or otherwise provides financial support for, the child
·child provides for his or her own needs or has those needs met from another source
·child is financially independent or financially supported from another source.
18. The Guide provides the following for determining whether special circumstances prevented someone from lodging an objection within the specified time period at 4.1.8:
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.
If the Registrar is satisfied that special circumstances exist, the Registrar will then consider whether it is appropriate to exercise the discretion to extend the period in which to lodge the objection (section 87AA(2)). The Registrar will consider if:
• the decision to extend the period in which to lodge the objection will prejudice the other parent. For example, will the extension that results in an earlier date of effect for the objection decision create a significant overpayment or significant arrears of child support?
• the applicant rested on their rights. For example, did the applicant make any efforts to lodge the objection earlier, communicate to Services Australia that the decision was being contested or raised their concerns in other ways - for example, a complaint to Services Australia or the Ombudsman?
If the Registrar makes a determination under section 87AA(2) to extend the period in which to lodge the objection, then the objection is considered to have been received within the prescribed timeframe. The objection decision will then replace the original care percentage decision from the first day that original decision had effect.
EVIDENCE
19. Parenting Orders dated 16 December 2016 provided:
That the children A born 2003 and H born 2005 ("the children") live with the Mother.
The Father is to spend time with the children each alternate weekend ON THE CONDITION
THAT the Father complies with and files the following Undertaking:
"I will not consume alcohol at any time the children A born 2003 and H born 2005 ("the children") will be in my care.
I will be present at all times that the children are in my care.
I will not bring the children into contact with the Paternal Grandfather including being at any address that the Paternal Grandfather is at.
20. Parenting Orders by Consent dated 17 September 2017 provide that:
child A born 2003 shall live with the father.
child H born 2005 shall live with the mother.
21. Undated and unsigned consent for final parenting orders provide that:
"Exhibit 1"
Minutes of Orders
By way of Consent for Final Orders:-
In relation to The Orders of 12 September 2017 Orders number 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 are discharged.
The parents have equal shared parental responsibility for the children, A born 2003 and H born 2005 ("the children").
Living arrangements
The children will live with the father in …., noting that the parties acknowledge that given the ages of the children, the children may elect to change where they live and the parties will support the children's decision.
22. A letter from an accredited specialist family law firm dated 31 January 2020 to TLWQ and KZJW states:
We confirm this matter resolved by Consent Orders on the 29 January 2020. Her Honour expressed very strong views at the beginning in relation to the grandfather's behaviour and again made it quite clear that she was unlikely to agree to varying the Orders to allow the children to have time with the grandfather supervised or otherwise.
Her Honour then made Orders that:-
1. The restraints on the children being in the grandfather's presence were confirmed by consent.
2. The father is to arrange for the children to have Protective Behaviour Training.
3. Her Honour reserved her right to notify the Department of Child Safety about the concerns the Court has.
4. The Independent Children's Lawyer and Ms. … are to meet with the children and explain these Orders.
CONTENTIONS
TLWQ
23. TLWQ submitted the following written reasons as to her particular circumstances which prevented her from lodging an objection within the required timeframe:
In 2018 my Children A and H ran away to apparently live with their father.
At the time there were court orders in place that the children have no contact or attend the residence of their Grandfather
It was only later on I found out the children had in fact been living with [their Grandparents].
At no point have I been a lawyer nor read every document from child support
I did not know about the 28 day dead line to contest change of care circumstances
In February 2018 I was really struggling with all aspect of my Illness Fibromyalgia along with depression and anxiety
I spent over 11 years in family court fighting to keep my children safe and away from [grandfather] which definitely took a toll on my physical and mental health
As I wasn’t aware of the time frame to contest change of care I now have a massive child support debit to pay KZJW
I understand about producing evidence to contest change of care but like I said I did not know about the time frame nor that the children were not living with their father.
This entire process has really effected my physical and mental health
It has been noted that KZJW did not have the children in his care in 2018 so I ask that the debit to be cleared as it so unjust that I would have to pay money to someone who did not have care of the children
24. Fundamentally, TLWQ has contended throughout that she has a debt which she should not have to pay as the children were not living with KZJW but his parents from February 2018.
KZJW
25. KZJW provided the following written outline of the care he purported to provide to the children:
2017
In late 2017 there were interim orders made between KZJW, TLWQ, and the Independent children’s Lawyer in the Federal court of Australia on the 12 September 2017.
The orders clearly state who the children were living with from 2017.
2018
In early February both A and H attended headspace to get some guidance of their behavior and to also obtain stability for their schooling.
In 2018 23 February 2018 both A and H attended High school under the father’s care.
On the 21 May A returned to the care of mother since she had been bullied on social media by another juvenile. The father reported this to the police and the other juvenile was charged. Subsequently the father had strict rules surrounding social media. A did not agree and moved back to her mother’s residence.
When A moved back with the mother there were several issues with A hanging with the wrong group of juveniles and did not attend school. The father did speak with the mother regarding her behavior.
The father had the understanding that A and mother moved to … on 16th October 2018.
H continued to live with the father in … and attend High School.
2019
Amended final orders (please refer to amended orders 29th August 2018)
H to live with father in.
A to live with the mother.
On October 29th, 2019, A moved back to … to live with her father and her sister. All parties involved were contacted by email.
2020
On the 11th of February 2020 the enrolled into a Tafe schooling program.
Both A and H continued to live with the father. The father organized gym memberships for both his daughters at … which they used on a regular basis. 2021
In late December the father had a falling out with his father as he was continually under minding his parenting duties. Due to his no contact order through the federal courts. This completely confused both my daughters with the way he was conducting himself. A and H started rebelling against their father and mother but we as parents had guidelines to follow through the federal court. This is all outlined in the evidence submitted TLWQ Canberra registry.
The father then contacted child support and made them aware of the situation. In December 2021 all financial benefits were given to the grandparents.
[Errors in original].
26. Fundamentally, KZJW contended the children were in his care from February 2018, if he was away for work the children stayed at his home with his former partner and he had not allowed the children to reside with his parents at any stage in accordance with the court orders.
Respondent
27. The Respondent submitted that it was open to the Tribunal to either:
a.affirm the AAT1’s decision if it considers that the care percentage determination and the section 87AA(2) of the Collection Act determination was the correct or preferable decision; or
b.vary the AAT1’s section 87AA(2) of the Collection Act determination if it considered it to be wrong;
28. Additionally, the Respondent submitted the Tribunal was required to determine if special circumstances prevented TLWQ from lodging an objection to the care decision within the 28 days as specified in section 87AA(1) of the Collection Act.
29. The Respondent submitted it took a neutral position as to the findings of fact to be made by the Tribunal on whether special circumstances prevented TLWQ from objecting to the original decision within 28 days of being given notice of the decision.
30. The Respondent submitted that as it had become aware that KZJW was challenging the percentage care determination of the AAT1 and as this was essentially a dispute between the mother and father as to the care provided to the children during the relevant period, the Respondent contended that the Registrar’s role should be confined to assisting the Tribunal in applying the relevant provisions to the evidence. Accordingly, the Registrar did not wish to advance a position as to the findings of fact that the Tribunal is called upon to make in respect of the percentage care determination.
31. The Respondent contended that it was open to the Tribunal to make a determination under Section 87AA(2) of the Collection Act as part of the care percentage decision. The Respondent submitted the Tribunal in ZGCJ and Child Support Registrar (Child support second review) [2020] AATA 4481 agreed with this approach at [66]:
Section 87AA(1) of the Registration and Collection Act necessarily interacts with s 43(6) of the AAT Act. Section 43(6) effectively provides that 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.
32. Whilst the Respondent took a neutral position on the matter, it did submit the following evidence in respect of TLWQ’s claim of special circumstances:
i.TLWQ was notified by letter dated 20 March 2018 of the change in care arrangements for child A and child H; the letter advised:
Call us if you think this decision is incorrect because information was not provided or taken into account; or the legislation has not been applied correctly. We will check the details and explain the decision. You can ask us to review the decision (we call this an objection) within 28 days from the date you receive this letter. For more information about how to object go to our website humanservices.gov.au/reviewsandappeals.
ii.The Registrar was unaware of any record of TLWQ attempting to object to the 2018 care decision prior to 17 March 2022.
iii.The Registrar provide numerous requests to TLWQ that she was required to supply evidence to support her claims of change in care or that evidence may be requested from her.
iv.The Registrar was unaware of any record of a conversation or conversations between an officer of the Agency and TLWQ in which she was told not to object, or that she could not object, to any decision until she had evidence.
DECISION
Whether the existing care percentage determination should be revoked
33. The Tribunal, based on the evidence before it, could not reach a level of satisfaction as the AAT1 had, that there had been a change in the care arrangement for child A and H from early 2018 to KZJW’s parents. The Tribunal did not concur with the AAT1 finding that:
Based on the evidence before it, the Tribunal is satisfied that in early 2018, the care of the children changed and they went from being in TLWQ care, to the care of KZJW parents. The Tribunal is satisfied, based on the evidence of TLWQ that A and H had run away from her home to that of KZJW parents and accordingly, the Tribunal finds that the care of A and H was not delegated. Further, based on the evidence before it, the Tribunal is satisfied that A and H were with their paternal grandparents for at least from February 2018 to May 2018, a period of at least three months. This is such a lengthy period that the Tribunal is satisfied that this was a change in the pattern of care.
The Tribunal then needed to ascertain on which date the care changed. As TLWQ appears to have a stronger grasp than KZJW on where their children were, the Tribunal accepts that H and A did run away in early 2018, and as TLWQ said this occurred in late January, possibly early February, the Tribunal concludes that the change in care should be recorded as being from 1 February 2018 and that the change in care was that the care percentage change was 0% to TLWQ. KZJW level of care remained at 0%.
34. The Tribunal notes the Registrar’s record dated 19 February 2018 of change of care for child A and child H which indicates both TLWQ and KZJW agreed to the change.
CHANGE OF CARE NOTIFICATION
(SCSAC) 19/02/2018
CHANGE OF CARE NOTIFICATION
Case selected: 79164060
Child selected: A
Date care changed: 16/02/2018
Number of nights: 7
Frequency: WKLY
Care percent: 100%
Nights an accurate reflection: Yes
Care in place: Court order
Both parties agree to care change: Yes
CHANGE OF CARE NOTIFICATION
(SCSAC) 19/02/2018
CHANGE OF CARE NOTIFICATION
Case selected: 79164060
Child selected: H
Date care changed: 16/02/2018
Number of nights: 7
Frequency: WKLY
Care percent: 100%
Nights an accurate reflection: Yes
Care in place: Court order
Reason care differs from previous care arrangement:
The children legal representive is aware of the situation and i have noth girls in my
care
Both parties agree to care change: Yes
More than two carers indicator: No
More than two carers indicator: No
[Errors in original].
35. The Tribunal notes that TLWQ did not contend that the children had been out of her care for the entire period from 16 February 2018 until 21 December 2021. The Tribunal relying upon the registrar’s records finds that TLWQ had the following care pattern:
Child A 100% from 21 May 2018 to 28 October 2019
Child H 100% from 8 December 2021 to 20 December 2021.
36. The Tribunal notes that KZJW did not contend that the children had been in his care for the entire period from 16 February 2018 until 21 December 2021. The Tribunal relying upon the registrar’s records finds that KZJW had the following care pattern:
Child A 100% from 19 February 2018 to 21 May 2018
Child A 100% from 29 October 2019 to 8 May 2021
Child H 100% from 19 February 2018 to 8 December 2021.
37. The Tribunal accepts TLWQ’s assertion that the child A and child H had at times been out of the care of both parents and had been staying with KZJW’s parents. However, the evidence from both parties demonstrated the children were moving around a lot and the Tribunal was not satisfied on the evidence that a new pattern of care had been established.
38. The Tribunal could see little utility, in this particular case, of determining that there was a change in care some 4 years after the Registrar had made an original determination. Particularly in light of a finding TLWQ did not have special circumstances to lodge her objection out of time. The decisions impact has resulted in KZJW incurring a Centrelink debt and has left TLWQ with the vexed situation of having to pay child support to a person who was supposedly not providing care to the children.
39. The Tribunal was guided by the principles that care should be taken in making any determinations that will result in a debt being created for payments already received before the determination is made. The Tribunal, on the evidence before it, was satisfied that both TLWQ and KZJW had been providing financial and other support to child A and child H from 16 February 2018 to 21 December 2021. The Tribunal, however, was not satisfied on the balance of probabilities that the evidence supported changing the determinations previous made by the Registrar on 20 March 2018 and affirmed by the authorised officer on 13 April 2022.
Whether special circumstances prevented TLWQ from lodging an objection to the care decision within 28 days
40. The Tribunal accepted TLWQ’s request not to appear at the hearing owing to her numerous health issues and proceeded to make a determination on the written material she had provided.
41. As TLWQ lodged her objection to the care determination of 20 March 2018 well outside the 28-day period, the Tribunal had to determine if special circumstance prevented her from doing so.
42. The term “special circumstances” has not been defined in the Collection Act. However, the meaning of “special circumstances” has been considered extensively by the Federal Court and the Tribunal:
a.In Re Beadle and Director-General of Social Security (1984) 6 ALD 1 where the Tribunal stated:
...An expression such as “special circumstances" is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special...
b.In Groth v Secretary Department of Social Security (1995) 40 ALD 541, Kiefel J (as she was then) said at 545:
[…] for present purposes it is sufficient to observe that it requires something to distinguish Mr Groth’s case from others, to take it out of the usual ordinary case. That was, I consider, the only enquiry to be undertaken in this case. It would of course follow if one was to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary.
c.In Dranichnikov v Centrelink (2003) 75 ALD 134, the Full Federal Court stated at [66]:
… Other cases which have considered analogous words such as “special reasons” has tended to conclude, albeit in different contexts, that what is required will be circumstances which distinguish the case in consideration from the usual case. There will be a requirement that the circumstances are such that takes the case out of the ordinary…
d.In Angelakos and Secretary Department of Employment and Workplace Relations (2007) 100 ALD 9 where the Federal Court stated at [33]:
… There is less risk of overstatement if the words "unusual" or "uncommon" are emphasised. Those words indicate, correctly in my view, the fact that there must be something that distinguishes the case from the ordinary or usual case.
43. The Tribunal notes the numerous interactions TLWQ has had with the CSR, including her agreement that the children were in KZJW’s care from February 2018. In particular, the Tribunal notes the following interactions:
1 June 2018
TLWQ called in to see how care change is going, I advised we have tried to
contact KZJW but this has been unsuccesful,
TLWQ advised she will send in evidence just in case it's needed
7 June 2018
Call received from RP TLWQ re: change in care progress
PORO completed
Advised CS has yet to confirm change of care with other parent KZJW
Advised CM assigned to matter has attempted to contact other parent to confirm
change without success
Advised CS has issued letter outlining details of change and requesting other parent
to contact CS to confirm
Advised when there is an update, correspondence will be issued
20 August 2020
* The reason for TLWQ call:
PP TLWQ called re: 19/20 High TR and current incomes being used?
* Digital / Self-service options were discussed with TLWQ.
* Confirmed the current care details for all children (incl. relevant dependents).
* Checked and confirmed TLWQ income details.
* Discussed collection and debt with TLWQ
* Customer Receipt Number not offered.
* Details of the discussion with TLWQ:
Advised PP TLWQ the following:
- 19/20 estimate was reconciled against a high income, which PP TLWQ has
explained resulted because she was paid out a payment and it wasn't
known until, the TR came in whether this was taxable or not?
- Arrears will be collected via CLNK deductions including
-
- Care is accurate for now as covid is preventing interstate travel but PP TLWQ
knows to nominate changes once restrictions are lifted.
24 August 2020
Inbound call. Customer was disagreeing with CS letter regarding care percentage.
She advised that till 29/10/2019 she had 100% care of A and H and that
the debt was incorrectly calculated. Customer was transferred to care objection team.
13 May 2021
Payer has called in to advise that both A and H left the Payees care on
1/5/2021 (they were kicked out of home)
Payer has advised that the care is currently 0 to both parents and she is trying to get somewhere for the children to live.
44. The Tribunal found that TLWQ was well aware of the requirements to object to changes in care determinations and had utilised them successfully on other occasions. The Tribunal found it implausible that if the children had been living with KZJW’s parents on a permanent basis she was unaware of this, given she was in regular contact with the children throughout this period. The Tribunal found no evidence to support TLWQ’s claim she was unaware of the 28-day requirement having been notified of them on countless occasions and there was no record she had been given misleading information that she could not lodge an objection without material to back her claims.
45. The Tribunal did not consider that TLWQ’s circumstances were unusual, uncommon or exceptional for it to exercise its discretion to grant an extension to lodge her objection. Whilst TLWQ suffers from ill health it was not so serious that it prevented her from undertaking paid work and travel; she had not been in an accident which prevented her from lodging her objection; she has no difficulty with communication and had not relied upon misleading information about the process for objection.
46. The Tribunal notes TLWQ’s current health and financial circumstances are placing her under significant strain and that she is struggling to repay her child support debt. Whilst the Tribunal has no capacity to direct CSR to waiver the debt, it does advise TLWQ she can seek to have the debt waived if it would cause ongoing financial hardship and recommends, she explore this avenue of redress.
47. The Guide at 6.11 outlines how to apply for waiver of a debt owed to the Commonwealth:
A person may owe a debt to the Commonwealth, for example, a child support debt or a debt arising from an overpayment of child support.
A request for waiver of a Commonwealth debt can be made directly to the Department of Finance using the Application for a Waiver of Debt owed to the Government form. The Department of Finance will notify Services Australia when a request for waiver is received.
Requests for a waiver are considered on a case by case basis. A waiver may be appropriate where recovery of the debt would be inequitable, or recovery of the debt would cause ongoing financial hardship. A debt is unlikely to be waived where it is a debt that is owed to the Commonwealth that will be paid on to a third party.
A debt owing to the Commonwealth can only be waived by the Finance Minister or authorised delegates of the Department of Finance (PGPA Act section 63).
The waiver powers are intended to be used in a limited number of cases to ensure equity in the impact of Government activities.
48. The Tribunal concurred with the ARO and the AAT1 member that there were no special circumstances which prevented TLWQ from lodging her objection within time.
49. The Tribunal sets aside the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 24 October 2022 and, in substitution, affirms the objection decision of an authorised officer of the respondent dated 13 April 2022.
I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the decision herein of Ms A E Burke AO, Member
............................[sgd]...................................
Associate
Dated: 2 January 2025
Date of hearing: 3 December 2024 Applicant: Self-Represented Other Party: Self-Represented Advocate for the Respondent: Aaron Taverniti Solicitors for the Respondent: Sparke Helmore
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