WYBM and Child Support Registrar (Child support second review)

[2023] AATA 1263

WYBM and Child Support Registrar (Child support second review) [2023] AATA 1263 (17 May 2023)

Division:GENERAL DIVISION

File Number(s):     2022/8807          

Re:WYBM

APPLICANT

AndChild Support Registrar

RESPONDENT

AndGSLR

OTHER PARTY

DECISION

Tribunal:Member W Frost

Date:17 May 2023

Place:Canberra

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

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

Member W Frost

Catchwords

CHILD SUPPORT – Administrative Appeals Tribunal Tier 1 review – where the Mother applied for review outside the 28 day period – ‘special circumstances’ – whether there were circumstances that prevented lodgement – do full-time work and care duties constitute ‘special circumstances’ – Tribunal not satisfied – decision under review affirmed 

Legislation

Administrative Appeals Tribunal Act 1975 ss 37, 43

Child Support (Registration and Collection) Act 1988 ss 16, 95N, 96A

Child Support (Assessment) Act 1989, cited.

Cases

P v Child Support Registrar [2012] FCA 1398

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

Secondary Materials

Guides to Social Policy: Child Support Guide

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

Member W Frost

17 May 2023

INTRODUCTION

1. The Applicant, ‘WYBM’ (the Mother), and the Other Party, ‘GSLR’ (the Father), are the separated parents of two children (the Children). In October 2022, the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) set aside a decision of a delegate of the Respondent, the Child Support Registrar (Registrar), and in substitution decided that the Mother had 100% care of the Children and the Father had 0% care of the Children from 22 December 2021.[1] The determination of the percentage of care is one of the requisite steps in assessing the rate of any child support payable by one parent to the other under the Child Support (Assessment) Act 1989.

   [1] Exhibit 1, pages 6-11.

2. The AAT1 also refused the make a determination that ‘special circumstances’ prevented the Mother from applying to the AAT1 within the required 28-day period. The date of effect, therefore, of the AAT1 decision was the date the Mother applied to the AAT1, being 25 August 2022, rather than the date determined by the AAT1 to be when the percentage of care for the Children changed, being 22 December 2021. The Mother applied to the General Division of the Administrative Appeals Tribunal (Tribunal) for review of this second element of the AAT1 decision, regarding special circumstances for her late application to the AAT1. The issue of the percentage of care provided to the Children by the Mother and the Father was not in dispute before the Tribunal.

   ISSUE

3. The issue for the Tribunal to determine in this proceeding is whether, pursuant to subsection 95N of the Child Support (Registration and Collection) Act 1988 (Collection Act), there were ‘special circumstances’ that prevented the Mother from applying to the AAT1 within the required 28-day period following receipt of the objection decision made by a delegate of the Registrar.

   BACKGROUND

4. Since 2011, a child support case has been registered with Services Australia (referred to in this decision as the Agency) in relation to the Mother and the Father.[2]

   [2] Exhibit 1, page 171.

5. From 25 May 2020, it was determined that the Mother had 79% care of the Children and the Father had 21% care of the Children.[3]

   [3] Ibid., pages 42 and 172.

6. On 6 January 2022, the Mother notified the Agency, that the Children had not been in the care of the Father since 21 December 2021 and that she therefore had 100% care of the Children.[4] The Father disagreed with the Mother’s change in care notification.[5] The parties provided the Agency with further evidence to support their respective position.[6]

   [4] Ibid., pages 55-57.

   [5] Ibid., pages 66-67.

   [6] Ibid., pages 77-79 and 81, 83-86.

7. On 28 May 2022, a delegate of the Registrar rejected the Mother’s change in care notification and the care percentage determination for the Children remained as 79% for the Mother and 21% for the Father.[7]

   [7] Ibid., pages 89-92.

8. On 2 June 2022, the Mother objected to the Registrar’s decision that there was no change in the care arrangements for the Children.[8]

   [8] Ibid., pages 95-97.

9. On 9 June 2022, another delegate of the Registrar disallowed the Mother’s objection and the existing care percentage determination continued.[9] Relevantly for this proceeding, by letter dated 9 June 2022, the Agency notified the Mother of the Registrar’s decision, enclosed the reasons and informed her that any application for review of the decision to the AAT1 must be made within 28 days from the date she received the decision.[10] The letter from the Agency relevantly stated that:[11]

   [9] Ibid., pages 41-52 and 104-108.

   [10] Ibid., pages 35 and 41.

   [11] Ibid., page 41.

   If you do not agree with this decision

   If you think this decision is wrong, you can ask the Administrative Appeals Tribunal (AAT) to review it. You must do this within 28 days from the date you receive this letter. You can contact the AAT by going to their website aat.gov.au or calling them on 1800 228 333. [emphasis in original]

10. On 24 August 2022, the Mother telephoned the Agency seeking to apply for review of the  objection decision from 9 June 2022.[12] She was advised that any such application for review should be lodged with the AAT1.[13]

    [12] Ibid., page 137.

    [13] Ibid.

11. On 25 August 2022, the Mother applied to the AAT1 for review of the objection decision made on 9 June 2022.[14] In her application to the AAT1, the Mother stated that the date she received the decision from the Agency was 9 June 2022.[15]

    [14] Ibid., pages 34-40.

    [15] Ibid., page 35.

12. On 21 October 2022, the AAT1 decided to set aside the objection decision made by a delegate of the Registrar and substituted it with a decision that, from 22 December 2021, the Mother had 100% care of the Children and the Father therefore had 0% care of the Children.[16] Relevantly for this proceeding, the AAT1 also decided that, because the Mother’s application to the AAT1 was not made within the required 28 day period and there were no special circumstances which prevented lodgement within that time, the date of effect of its decision was 25 August 2022.[17] That is, the date of effect of the change in the percentage of care for the Children commenced on the day the Mother lodged her application for review to the AAT1 and not from 22 December 2021 when the change in care was found to have occurred.[18]

    [16] Ibid., pages 6-11.

    [17] Ibid.

    [18] Ibid.

13. On 25 October 2022, the Mother applied to the Tribunal for review of the AAT1 decision that there were no special circumstances that prevented lodgement of the application for review to the AAT1 within the required 28 days from receiving the objection decision on 9 June 2022.[19]

    [19] Ibid., pages 1-5.

14. For completeness, the Tribunal notes that on 31 August 2022, the Agency determined new percentages of care for the Children to reflect changes it found occurred from 8 April 2022, with the Mother from that time recorded as providing 66% care to one of the Children and 50% to the second of the Children and the Father recorded as providing 34% and 50% care respectively in relation to the Children.[20] These care percentage determinations are not before the Tribunal in this proceeding.

    [20] Ibid., pages 145-148.

15. On 26 April 2023, the Tribunal held a hearing in this proceeding by telephone. The Mother and the Father represented themselves. The Registrar, through its representative, provided submissions in relation to the facts and applicable legislation in the proceeding, but adopted a neutral position regarding the evidence and contentions of the Father and the Mother and made no submissions or contentions on the correct or preferable decision of the Tribunal. The Tribunal records its appreciation for the assistance it received from the Registrar and its representative through the Registrar’s submissions and during the course of this proceeding.  

16. The Tribunal has considered all documents in the bundle of documents lodged by the Registrar on 1 December 2022 pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act).[21] The written and verbal submissions made by the parties have also been considered by the Tribunal in reaching this decision.[22]

    [21] Exhibit 1.

    [22] Exhibits 2 to 5.

    LEGISLATION & POLICY

17. Subsection 43(6) of the AAT Act provides that:

    A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.

18. Section 95N of the Collection Act states that:

    (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.

19. The term ‘special circumstances’ is not defined in the Collection Act. However, the Child Support Guide, at paragraph 4.1.8, relevantly advises that:[23]

    [23] Exhibit 1, page 29.

    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 person 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…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…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.

20. The Tribunal notes that, while not binding, government policy, such as the Guide, should generally be applied unless there are cogent reasons not to do so.[24] The Tribunal is not aware of any reasons for it to not apply the Guide and the parties did not make any such submissions.

    [24] P v Child Support Registrar [2012] FCA 1398 at [3]; see also Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

21. For completeness, the Tribunal notes that, pursuant to subsection 96A(c) of the Collection Act, an application may be made to the General Division of the Tribunal for review of a decision under subsection 95N(2) to make, or not to make, a determination. The Tribunal therefore has jurisdiction in relation to the Mother’s application for review of the AAT1 decision that there were no special circumstances that prevented her from applying to the AAT1 within the required 28 day period from 9 June 2022.

    EVIDENCE

    The Mother

22. The Mother provided a written statement in this proceeding dated 1 February 2023.[25] She noted that her mother suffers from ‘chronic pain injury’, ‘brain aneurysms’ and ‘diabetes’ and relevantly stated that:[26]

    At times these conditions cause her to become debilitated and require assistance in caring for herself properly. During these times, I need to assist her up to twice daily with things such as attending doctors [sic] appointments, food shopping, making meals, cleaning and personal hygiene.

    In June, July and August, I assisted my Mother on an almost daily basis.

    During June, July and August, I was employed full-time, had 75% of my children…and was also working on my own small business in an attempt to generate extra income.

    …

    The extra time and pressure of caring for my Mother on top of my full-time work, caring for children and small business caused me to miss the deadline for lodging an appeal.

    [25] Exhibit 2.

    [26] Ibid.

23. The Mother told the Tribunal at the hearing that she relied on the material provided by her in this proceeding and that the reason for her late lodgement of the application to the AAT1 was due to being ‘extremely busy’, ‘focused on a full-time job’, ‘running a small business’, and ‘caring for two teenage children’ and her ‘sick mother’. The Mother contended that, even though she was able to submit some documentation to the Agency during the relevant period, on 19 July 2022, this ‘does not mean’ she ‘wasn’t unable’ to lodge an application to the AAT1.[27] She maintained that, despite there only being an income statement from mid-2020, her full-time employment with the same employer continued from that time and through the relevant period between June and August 2022.  

    [27] Exhibit 1, pages 113-121.

24. On 19 July 2022, the Mother’s mother made a written statement which relevantly noted that:[28]

    I regularly help [the Mother] with care of the children by taking them to and from school, training, sporting events and their casual café jobs when [the Mother] is not able to take them.

    I see the children at least 3-5 times per week.

    [28] Ibid., page 113.

25. On 4 November 2022, for the purpose of this proceeding, the Mother’s mother made a Statutory Declaration.[29] This document relevantly stated that:[30]

    When I am feeling well, I am able to assist [the Mother] with caring for the children, including driving them to sport training, games, school and making them dinner while she is working.

    There are times when my disabilities flair up and prevent me from assisting [the Mother].

    During the times of my flair ups, [the Mother] assists me on a daily basis with my needs including shopping, cooking, cleaning, showering and dressing.

    During June, July and August 2022, I had a flair up of my chronic pain injury.

    On most days during those months [the Mother] visited me at my home to assist with the above tasks or took me to doctors [sic] appointments.

    [29] Exhibit 3.

    [30] Ibid.

26. The Mother’s mother did not give evidence at the Tribunal hearing.

27. On 19 July 2022, the Mother’s partner made a written statement, which has been considered by the Tribunal.[31] He also gave evidence at the hearing and told the Tribunal that, from ‘mid-2022’, the Mother ‘spent a lot of time’ assisting her mother, which was ‘quite often’ a ‘daily occurrence’, with her ‘day-to-day functions’, by taking her to medical appointments and grocery shopping, together with ‘running around’ with children, working full-time and establishing her own small business. The Mother’s partner recalled that there were ‘a couple of week blocks’ where the Mother attended ‘two or three medical appointments’ each week with her mother, when she was ‘going through the worst of it’, and that the Mother also collected her mother every second or third day for grocery shopping or delivered her food. The medical appointments were said to have taken up a ‘good half of the day’ and the shopping a couple of hours.

    [31] Exhibit 1, page 114.

    The Father

28. The Father provided a written statement dated 22 March 2023 in this proceeding, which relevantly noted that the Mother:[32]

    was in contact with Child support Australia (CSA) during the time that she claims that she was too busy to respond.

    Specifically, she sent a significant amount of documents to CSA on July 19^th 2022. [The Mother] sent 2 letters and copies of a diary…

    One letter…was signed by her mother…and dated 19^th July 2022 stating that she took regular care of the [Children] during the time that [the Mother] claims her mother was incapacitated.

    Specifically, according to…the signed letter [of the Mother’s mother], she was regularly driving the children to school, and sporting events during the period that is claimed she was incapacitated.

    [32] Exhibit 5.

29. The Father also referred in his statement to the Agency’s determination on 31 August 2022 that the Mother had 66% and 50% care of each of the two Children from April 2022, which included the relevant period in this proceeding from the time of the objection decision until the time of the Mother’s application to the AAT1, being 9 June 2022 to 25 August 2022.[33] That is the care percentages for the Children during this period were not, as previously determined, 79% to the Mother and 21% to the Father.

    [33] Ibid. See also Exhibit 1, pages 145-148.

30. The Father gave evidence at the Tribunal hearing and noted that the payroll statement from the Mother’s employer was from a period in 2020, not during the relevant period from June to August 2022. Additionally, the Father stated that the care calendar submitted by the Mother was from August 2022, which was after the required 28-day period for the lodgement of an appeal with the AAT1.[34] The Father also again referred to the statement made by the Mother’s mother on 19 July 2022, being during the relevant period, that she was regularly caring for the Children.[35]

    [34] Exhibit 4.

    [35] Exhibit 3.

    CONSIDERATION

1. There was no dispute that the Mother made her application to the AAT1 outside the required 28-day period from the date she received the decision made by a delegate of the Registrar on 9 June 2022. The Mother also did not dispute that she received that decision on 9 June 2022. For the avoidance of doubt, the Tribunal is satisfied that the Mother did not lodge her application to the AAT1 until after the end of the 28-day period from 9 June 2022 and that this was not done until 25 August 2022, being some 42 days after the end of the relevant period in which to do so.

2. The task of the Tribunal in this proceeding is therefore to determine whether, pursuant to subsection 95N(2) of the Collection Act, there are ‘special circumstances’ that prevented the Mother from making her application to the AAT1 within the required 28-day period.

3. As set out above in these reasons, subsection 95N(1) of the Collection Act relevantly provides that, if the AAT1 varies or substitutes a decision on an objection to a care percentage decision and the application to the AAT1 was made ‘more than 28 days’ after notice of the decision was given, the AAT1 decision ‘has or is taken to have had effect on and from the day the application for AAT first review was made’. Here, that is 25 August 2022.[36]

   [36] Exhibit 1, pages 34-40.

4. However, subsection 95N(2) of the Collection Act relevantly provides that if the Tribunal is ‘satisfied that there are special circumstances that prevented’ the application to the AAT1 being made within the 28-day period, the Tribunal ‘may’ determine that the reference to 28 days is a reference to such longer period as it determines to be appropriate. This would mean that the Mother’s application to the AAT1 would be taken to have been made in time and therefore the date of effect of the AAT1 decision regarding the percentages of care for the Children would be 22 December 2021, being the date the AAT1 determined there was a change, and not 25 August 2022, being the actual date of the Mother’s application to the AAT1.

5. While the term ‘special circumstances’ is not defined in the Collection Act, the Guide states that the ‘applicant must show that their particular circumstances prevented them from lodging an objection within the required timeframe’.[37] The Guide also provides what are referred to as ‘examples’ of special circumstances, which include the relevant parent being seriously ill, having an accident or suffering a personal trauma such as a death in the family.[38] None of the examples set out in the Guide exist in this proceeding. The Mother’s contention was that the special circumstances that prevented her from lodging the AAT1 application in time were that she was employed on a full-time basis, she was also working on her own small business, provided caring assistance to her mother on an almost daily basis and also cared for the Children.

   [37] Ibid., page 29.

   [38] Ibid.

6. Although the Tribunal accepts that these circumstances, taken together, would have meant that the Mother was very busy during the time from 9 June 2022 when the decision was sent to her and the 28-day period commenced, the Tribunal is not satisfied that these circumstances are sufficiently ‘special’ as required under subsection 95N(2) of the Collection Act. That is, based on all of the evidence before the Tribunal, it is not satisfied that there were the requisite ‘special circumstances’ to enliven the Tribunal’s discretion to extend the period of time up until the date the Mother made her application to the AAT1.

7. The Tribunal addresses below each of the circumstances submitted by the Mother that led to her late application to the AAT1. While there was documentary evidence of the Mother’s full-time employment in July and August 2020, there was no such evidence that the Mother was employed on a full-time basis during the relevant period from June to August 2022.[39] Despite this, the Tribunal accepts the Mother’s testimony that she continued to be employed with the same employer on a full-time basis from 2020 and throughout the relevant period in 2022, including based on the taxable income during this period she reported to the Agency.[40] However, the Tribunal is not satisfied that working full-time amounts to a ‘special’ circumstance, as required by the Collection Act, to have prevented the Mother from lodging her application with the AAT1 in the required 28-day period. Such circumstances would exist for a substantial amount of people interacting with the AAT1 and are therefore not of a sufficiently ‘special’ quality. In this regard, again noting that the Mother was undoubtedly busy during the relevant period, working on her own small business in addition to full-time employment is not, in the Tribunal’s view, sufficiently ‘special’ to enliven the Tribunal’s discretion to alter the time for the Mother to have made her application to the AAT1.

   [39] Exhibit 2.

   [40] Exhibit 1, page 128.

8. During the period June to August 2022, the Mother provided care for the Children. As previously set out in these reasons, in August 2022, the Agency determined that, from April 2022, the Mother provided care to the two Children of 66% and 50% respectively.[41] This recent decision by the Agency was a reduction from the care percentage determination from May 2020 that the Mother had 79% care of the Children and the AAT1’s subsequent finding that, from December 2021, the Mother provided 100% care of the Children.[42] Accordingly, during the relevant period from 9 June to 25 August 2022, including during the 28-day period, the Mother’s care of the Children was a reduced, although still substantial, amount from that which previously existed. The Tribunal is not satisfied that the Mother’s caring arrangements for the Children amounted to a ‘special’ circumstance as required under the Collection Act, including for the reasons set out below regarding the purported care the Mother provided to her own mother during this time. In this regard, a parent’s caring responsibilities for their child or children are the reason they are interacting with the child support system, and here the AAT1, and could therefore not, in the Tribunal’s view, be sufficiently ‘special’, that is, distinct from the usual child support case.

   [41] Ibid., pages 145-148.

   [42] Ibid., pages 6-11 and 42.

9. As set out above in these reasons, the Mother provided a written statement dated 1 February 2023 regarding the care she provided to her mother during the period June to August 2022, being the relevant period under consideration in this proceeding.[43] The Mother’s mother also made a Statutory Declaration regarding the care her daughter, the Mother, provided to her during this time.[44] Additionally, the Mother’s partner gave evidence at the Tribunal hearing regarding the care that she provided to her mother. The Mother’s written statement was that she provided care to her mother in June to August 2022 on ‘an almost daily basis’ and, together with her other commitments set out above, this ‘caused me to miss the deadline for lodging an appeal’ to the AAT1.[45] The Mother’s mother stated that during this period she had a ‘flair up’ of her chronic pain injury, and that on ‘most days during those months’, the Mother visited her to assist with household or self-care tasks and attending doctors’ appointments.[46] 

   [43] Exhibit 2.

   [44] Exhibit 3.

   [45] Exhibit 2.  

   [46] Exhibit 3.

10. However, during the relevant period, on 19 July 2022, the Mother provided the Agency with documentation comprising letters from her mother and her partner, both of the same date, and a care calendar from January to July 2022.[47] First, this correspondence to the Agency demonstrates that, during the relevant period, albeit outside the 28-day period, the Mother was able to provide evidence to the Agency regarding the purported care of the Children. However, despite being able to provide this material, it was more than one more month later before the Mother lodged an application to the AAT1 objecting to the decision of a delegate of the Registrar regarding that care. That is, during this time, the Mother was not prevented by her caring and other responsibilities from lodging documentation with the Agency, but submits that she was prevented from lodging an application with the AAT1.

    [47] Exhibit 1, pages 113-121.

11. Second, the letter of the Mother’s mother dated 19 July 2022, noting again that this was during the relevant period between June and August 2022, states that ‘I regularly help [the Mother] with the care of the children by taking them to school, training, sporting events and their casual café jobs when [the Mother] is not able to taken them’ and that the Mother’s mother sees the Children ‘at least 3-5 times per week’.[48] There was no reference in this contemporaneous correspondence by the Mother’s mother to her being unable at, or between, any period of time to assist the Mother with caring for the Children, including from the time the Mother received the objection decision on 9 June 2022 until the date of this letter on 19 July 2022. This is in contrast to the later Statutory Declaration made by the Mother’s mother in November 2022 for this proceeding, which noted that the Mother visited her on ‘most days’ during the relevant period to assist with her activities of daily living and attending doctors’ appointments.[49] As noted above, the Tribunal did not have the benefit of oral evidence at the hearing from the Mother’s mother. Additionally, while the Mother’s partner told the Tribunal that the Mother provided substantial care to her mother in mid-2022, his contemporaneous written statement of 19 July 2022 also made no reference to the Mother providing any care to her mother at that particular time.[50] These matters weigh against a finding that the Mother’s mother required a substantial amount of care from the Mother during the relevant period, and at least from 9 June to 19 July 2022, and do not support the contention that there were ‘special circumstances’ that prevented the Mother from lodging an application with the AAT1 within the required 28-day period from 9 June 2022.

    [48] Ibid., page 113.

    [49] Exhibit 3.

    [50] Exhibit 1, page 114.  

12. Nonetheless, even if the Tribunal accepts that the Mother provided substantial care to her mother during this period of time, it is not satisfied that this amounts to a ‘special’ circumstance such as to enliven the Tribunal’s discretion under section 95N of the Collection Act. In this regard, while the Tribunal accepts that the Mother’s mother has the medical conditions set out in the documentary evidence, there was no corroborating independent evidence regarding them or their severity. To this end, the evidence from both the Mother and her mother was that the latter lives independently and, if it is accepted that she was incapacitated during the relevant period, outside of that period she helped the Mother by providing care of the Children. Accordingly, the Tribunal is not satisfied that the circumstances described by the Mother meet the requisite threshold of being ‘special’ pursuant to subsection 95N(2) of the Collection Act.

13. That is, by reference to the Guide’s examples, and based on the available evidence, the medical conditions suffered by the Mother’s mother, including during the relevant period, were not life-threatening or leading to her death. In her own words, she had a ‘flair up’ of her ‘chronic pain injury’ that required the assistance of the Mother with daily activities and attending doctors’ appointments. On the evidence before the Tribunal, and using the examples in the Guide, the Mother herself was not at that time ‘seriously ill’ or  involved in an ‘accident’ that prevented lodgement of the application to the AAT1 and she did not suffer a ‘personal trauma such as a death in the family’ or a ‘natural disaster’.[51] These examples, and other similarly significant events, would be sufficiently ‘special’ to meet the requirement under subsection 95N(2) of the Collection Act. For the reasons set out in this decision, the Tribunal finds that the circumstances described by the Mother do not meet this threshold. As previously stated, while the Mother was undoubtedly busy with various responsibilities during the relevant time, the Tribunal does not accept that any or all of them amounted to ‘special’ circumstances. The Tribunal is therefore not satisfied, on the totality of the evidence, that the Mother’s circumstances are sufficiently ‘special’, as required under the Collection Act, to enliven the Tribunal’s discretion in section 95N to determine another period of time for lodgement of the application to the AAT1, being the date it was lodged by the Mother on 25 August 2022, which would thereby change the date of effect of the AAT1 decision regarding the applicable percentages of care for the Children attributable to the Mother and the Father.

    [51] Ibid., page 29.

14. As a result of the Tribunal’s decision, the date of effect of the AAT1 care percentage decision remains 25 August 2022, being the date the Mother applied to the AAT1, and not from the date the AAT1 found there was a change in the percentage of care of the Children, being 22 December 2021.

    DECISION

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

I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

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

Associate

Dated: 17 May 2023

Date(s) of hearing:	26 April 2023
Date final submissions received:	22 March 2023
Applicant:	By Telephone
Solicitors for Respondent:	Mr Matthew Burnham, Sparke Helmore Lawyers
Other Party:	By Telephone