Worrell and Rowan (Child support)

[2021] AATA 4800

Worrell and Rowan (Child support) [2021] AATA 4800 (22 October 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC022165

APPLICANT:  Mrs Worrell

OTHER PARTIES:  Child Support Registrar

Mr Rowan

TRIBUNAL:Member S Letch

DECISION DATE:  22 October 2021

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Mrs Worrell’s application to continue the child support assessment past [Child 1]’s 18th birthday until 17 December 2021 is to be accepted.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – late application to extend the child support assessment beyond the child’s eighteenth birthday –deemed not to be late application – in any event exceptional circumstances found – application should be accepted – decision under review set aside and substituted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

1. Mrs Worrell and Mr Rowan are the parents of [Child 1], born [in] June 2003. This case is about whether the child support case can be extended beyond [Child 1]’s 18^th birthday (until 17 December 2021, the end of the school year).

2. It is convenient by way of background to set out an extract from the Child Support Agency (CSA) objections officer’s decision letter dated 17 August 2021:

   DECISION UNDER REVIEW

   The decision made on 12 July 2021 to accept [Mrs Worrell]’s application to continue the child support assessment past [Child 1]’s 18^th birthday to 17 December 2021.

…

REASONS FOR THE DECISION

Child Support legislation allows for the child support assessment to be extended until the last day of the secondary school year that falls within 365 days of the child's eighteenth birthday. This includes any period that is prescribed by the school to be a term, semester or school holiday break.

In order to accept an application to extend the assessment until the last day of the secondary school, we need to be satisfied:

- the child is likely to be in full-time secondary education on their eighteenth birthday,

- the last day of the secondary school year will be within 365 days after the child's eighteenth birthday, and

- the application was made before the child's eighteenth birthday (or there are, in the Registrar's opinion, exceptional circumstances justifying the making of an application after the child's eighteenth birthday).

If these conditions are satisfied, we must accept the application to extend the assessment.

[Mrs Worrell] provided a letter from [School 1] in [Suburb 1], however, in this case there is no dispute that [Child 1] was in fulltime secondary education.

[Mr Rowan] objected to the decision to continue the assessment for [Child 1] past his 18^th birthday on the grounds the application was initiated when [Child 2] advised he was moving in with [Mr Rowan].

We can accept an application made after the child’s 18^th birthday if, there are exceptional circumstances justifying the making of the application after the child’s 18^th birthday.

…

On objection, [Mrs Worrell] advised she sent the application to continue the assessment for [Child 1] via mail in April, prior to [Child 1] turning 18. After receiving the letter to say the case was ending, [Mrs Worrell] called Child Support to follow up her application and resent eh application via email to ensure it was received.

A review of our records has not located an application…

A failure by Australia Post not to deliver an application is not considered an exceptional circumstance.

On 12 May 2021, prior to [Child 1] turning 18, we issued updated assessment notices to both parties. The assessment period up to [Date 1] June 2021 included [Child 1] and the assessment period from [Date 2] June 2021, did not include [Child 1]. We are satisfied at this point it would have been reasonable to assume an application to continue the assessment for [Child 1] had either not been received or accepted.

We have made the decision not to accept [Mrs Worrell]’s application to continue the child support assessment past [Child 1]’s 18^th birthday to 17 December 2021.

The objection has been allowed.

1. Mrs Worrell sought further review by the Tribunal on 27 August 2021. Mrs Worrell and Mr Rowan participated in the Tribunal’s hearing by conference telephone.

2. Mrs Worrell’s submissions were consistent with her written application to the Tribunal:

   My decision to apply for a review of the decision of the Child Support Registrar is for the following reasons:

   - Untrue statement contained in father’s objection application which was referred to as part of the Objection Decision in section – REASON FOR THE DECISION (last page) - The untrue statement has been used as “facts” to overturn the acceptance of the application as is clearly mentioned

   - Personal statements and opinions from either party, especially ones not based on fact or knowledge, should not be used to form part of the Objection Decision

   - The original late application was granted due to the ongoing financial assistance needed from the father to help care for the child till the end of the school year, not taking into account, the following year costs of education. This was seen as a fair request by the Child Support officer handling the matter

   - I was not properly informed or advised by further Child Support officers on how to support my own claim to the father’s objection application and only advised to supply a letter from the school, which I did

   - The mention of Exceptional Circumstances in which my assessment was not accepted and that Australia Post not to deliver the application was not considered an exceptional circumstance – the application was posted to Child Support and this is the honest truth

   - The lateness of the application was never in question as this was out of my hands. The fact is financial support is needed to help fund a child’s education and living expenses and this should be far more important in the decision making than arguing over the lateness of the application or making up stories about why it was lodged late

   - The application was submitted to help with the care and support of our son [Child 1] who still attends secondary education and will continue to do so in year 12 in 2022 The application was submitted to continue to receive financial support which helps with [Child 1]s living and education expenses so he can continue to attend a good school and get a good education. Therefore, helping to pay the $4860.00 per year school fees plus further expenses incurred – Statement of Account attached

   - A review of my records has not located an assessment dated 12 May 2021 in which was referred to and formed part of the objection decision

   Please find below response to contents contained in the Objection Decision letter received by Child Support in support of my decision to review this decision:

   1. DECISION UNDER REVIEW

   “This means that we have examined and evaluated all the relevant information in order to reach a conclusion based on the “relevant facts” of the case and how the law is applied to those “facts”.

   Question 5 – Reason for your objection from submitted by [Mr Rowan]

   In this paragraph the “relevant facts” that are spoken of that came from [Mr Rowan]’s objection form, are NOT true facts and is a fabricated story that he has made up on assumptions that have come about from my application for extension going missing.

   2. WE CONSIDERED THE FOLLOWING EVIDENCE INI THE DECISION

   Relevant items are referred to by date order:

   26 March 2021 - Yes, I received the correspondence from Child Support. I filled in the form which was signed on 28 April 2021 and posted on 29 April 2021 – attached 5th July 2021 – Yes, I did contact Child Support as I received further correspondence from Child Support with regards to the assessment changing and it did not mention the support of [Child 1] was to continue. That is when I knew something was wrong.

   I did advise I had submitted the application by email. However, I was quite frustrated at the time knowing that the application had gone missing, and knowing I was going to have problems in getting the application approved as it was over the due date of 7th June which is prior to [Child 1] 18th birthday. I could not check my application at the time or how I had submitted it as I had filled it out at work and the scanned copy was on my work computer and I was not due back at work till the next day.

   6 July 2021 – I did contact Child Support again to advise I had in fact sent the application by mail on 28 April 2021. This was also written on my scanned copy. There was no email address to submit the forms on the documents which is why I sent it by mail, had there been an email this would never have happened. I forwarded this copy of my application to the child support worker by email to process as she had requested.

   12 July 2021 – My application was processed and accepted.

   14 July 2021 - Extension was granted without consultation - should [Mr Rowan] have been consulted about the processing of the application. Contains untrue statement by [Mr Rowan] with regards to [Child 2].

   22 July 2021 – Yes, I did advise [Child 1] was in year 11 and the rest of the story as I had to repeat myself on about 5 occasions to different Child Support officers, this in itself is frustrating trying to go through the story over and over. This was also discussed with the very first Child Support staff member I spoke to when they advised the application was not received. This is not mentioned in any previous notes.

   23 July 2021 – Untrue statement by [Mr Rowan] again.

   9 August 2021 – Yes, the same story, different person. However, it mentions I was informed by Child Support that they found my initial application. I most definitely had a conversation with a Child Support worker who said the application was on file. I questioned was it the one that was sent through the mail, she advised yes it was. I then said and quote “well at least now it proves I am not a liar”. I then said I couldn’t believe that a letter would turn up that many months later in the mail and believed it was sitting on someone’s desk and not processed and that maybe someone did not do their job properly. Now, according to a section in Details of Objection Decision it states that a review of the records has not located an application to continue the assessment for [Child 1] prior to him turning 18. Is there any recording of conversations with Child Support as I would like to request these.

   3. REASONS FOR THE DECISION

   In order to accept an application to extend the assessment until the last day of the secondary school, we need to be satisfied:

   - the child is likely to be in full-time secondary education

   - the last day of the secondary school year will be within 365 days after the child’s eighteenth birthday, and

   - the application was made before the child’s eighteenth birthday

   If these conditions are satisfied, we must accept the application to extend the assessment.

   In support of the above, two out of the three have been satisfied. [Child 1] is most definitely attending secondary education and will be till the end of 2022. However, my application was not received and has gone missing. I did follow this up and re-submit my copy and I would not have put in such an effort to go through the added stress if the financial support was not needed.

   I also refer to this section where it says “[Mr Rowan] objected to the decision to continue the assessment for [Child 1] past his 18th birthday on the grounds the application was initiated when [Child 2] advised he was moving in with [Mr Rowan]”.

   The above is an untrue fabricated statement. [Child 2] had discussed with me about moving in with his father long before I re-submitted the application in July.

3. Mrs Worrell told the Tribunal that she posted the form on 29 April 2021 – there was no email address on the form. A copy (which she had scanned at her workplace) starts at page 15 of the CSA materials. She sent it to the nominated postal address as directed at the end of the form (at page 16). When she did not hear anything, she spoke to the CSA in early July. Mrs Worrell said [Child 1] attends a private school; she said that, of itself, is an exceptional circumstance, and that Mr Rowan should be expected to make a contribution towards school fees.

4. Mr Rowan told the Tribunal that whether the form was received by CSA was a matter between Mrs Worrell and the CSA. Mr Rowan said he had never consented to private schooling; he said he has legal advice that “it was very clear the case was over” when [Child 1] turned 18. He said the CSA had confirmed as much to him, and in reliance on that advice, he made major financial decisions on the basis he would no longer be liable for child support.

5. The pivotal provisions in this case are sections 151B and 151C of the Child Support (Assessment) Act 1989 (the Act):

   CHILD SUPPORT (ASSESSMENT) ACT 1989 - SECT 151B

   Application for assessment/agreement to continue beyond child's 18th birthday

   (1)  If a child turns 18 during a year in which the child is in full-time secondary education, a carer entitled to child support for the child may apply for an administrative assessment, or a child support agreement, in relation to the child to continue in force until the last day of the secondary school year in which the child turns 18.

   Note:          For full-time secondary education, last dayand secondary schoolsee section 5.

   (1A)  If a relevant dependent child of a parent turns 18 during a year in which the child is in full-time secondary education, the parent may apply for the relevant dependent child to be taken into account in any relevant administrative assessment until the last day of the secondary school year in which the child turns 18.

(2)  The application must be:

(a)  made to the Registrar in the manner specified by the Registrar; and

(b)  in the case of an application under subsection (1) for a child support agreement to continue in force--signed by both the carer entitled to child support for the child and the liable parent in relation to the child.

Note:          Section 150A provides for the Registrar to specify the manner in which an application may be made.

CHILD SUPPORT (ASSESSMENT) ACT 1989 - SECT 151C

Application for assessment/agreement to continue--Registrar's decision

(1)  The Registrar must either accept or refuse to accept an application under section 151B.

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

(a)  the child has turned 17; and

(b)  any of the following applies:

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

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

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

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

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

(e)  either:

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

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

Note:          For full-time secondary education, last dayand secondary schoolsee section 5.

Refusal of application

(3)  If the Registrar refuses to accept the application, the Registrar must immediately notify the applicant in writing.

Acceptance of application

(4)  If the Registrar accepts the application, the Registrar must immediately notify the applicant, and the liable parent concerned, in writing.

(5)  A notice to a person under this section must include, or be accompanied by, a statement to the effect:

(a) that the person may, subject to the Registration and Collection Act, object to the particulars of the assessment in relation to which the application under section 151B was made; and

(b)  that if the person is aggrieved by the decision on an objection to the particulars of the assessment (no matter who lodges the objection), he or she may, subject to that Act and the AAT Act, apply to the AAT for review of the decision.

(6)  A contravention of subsection (5) in relation to a decision does not affect the validity of the decision.

(7)  To avoid doubt, a reference in this section to an administrative assessmentdoes not include a reference to an assessment made by the Registrar under subsection 93(2).

1. 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, e.g. a social worker or police officer, will be required).

·Severe distress or hardship (e.g. 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.

Example: Natasha did not make an application to extend the child support assessment prior to child Silvan's 18th birthday. After the child support assessment has ended, Natasha realises that their FTB has been affected and requests that the Registrar consider a late application. The Registrar would refuse the application if there were no exceptional circumstances that justified the application being made after Silvan turned 18.

1. Mrs Worrell’s evidence has been consistent throughout this dispute. The Tribunal finds her recollection of events reliable. The Tribunal accepts her evidence that she posted the form to the address she was directed to in late April 2021.

2. This conclusion gives rise to two possibilities – Australia Post lost the form; or the form was received by the CSA, and lost or misplaced.

3. The Tribunal’s experience in dealing with Services Australia (including the CSA and Centrelink) is that it is generally very effective in handling correspondence from its citizen clients. Having said that, the sheer scale of the documentation it receives means that, from time to time, human error leads to documents being lost or mislaid by agency staff (including on some occasions of which the Tribunal is aware of documents being mistakenly collated with another client’s documents).

4. The Tribunal considers the most likely explanation to be that the CSA received the document and lost it. This means the Tribunal accepts that the application (a copy of which appears at folio 15 of the CSA materials) was more likely than not received by the CSA in the ordinary course of the post in May 2021, and prior to [Child 1] turning 18. There being no dispute that [Child 1] was continuing secondary schooling, the Tribunal concludes the original decision of 12 July 2021 to extend the case should be reinstated.

1. If the Tribunal is wrong to reach that conclusion, the Tribunal observes that in any event, it would have been satisfied that, for the purposes of subparagraph 151C(2)(e)(ii), there were exceptional circumstances justifying the making of the application after the child's 18th birthday. Mrs Worrell had posted her application in a timely way, and allowed a reasonable time for the CSA to accept the application before initiating contact with the agency. A loss of the form by Australia Post, or misplacement of the form by the CSA, constitute exceptional circumstances in the view of the Tribunal.

2. As the Tribunal has reached a different conclusion to the objections officer, the decision under review will be set aside.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Mrs Worrell’s application to continue the child support assessment past [Child 1]’s 18th birthday until 17 December 2021 is to be accepted.