YKYS and Child Support Registrar (Child support second review)

[2020] AATA 1153

YKYS and Child Support Registrar (Child support second review) [2020] AATA 1153 (4 May 2020)

Division:GENERAL DIVISION

File Number:          2019/5540

Re:YKYS  

APPLICANT

AndChild Support Registrar

RESPONDENT

FCRHAnd  

OTHER PARTY

DECISION

Tribunal:Member R West 

Date:4 May 2020  

Place:Melbourne

The decision under review is affirmed.

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

Member

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.

Catchwords

CHILD SUPPORT ASSESSMENT – application for review – out of time – whether special circumstances – determination under s.95N(2) of the Child Support (Registration and Collection) Act 1988 – decision affirmed

Legislation

Child Support (Registration and Collection) Act 1988

Administrative Appeals Tribunal Act 1975

REASONS FOR DECISION

Member R West

4 May 2020

1. This matter concerns a dispute between the Applicant and her former partner (Other Party) concerning the child support assessment for their child (Child).

2. The application seeks the review of a decision of the Social Services and Child Support Division of this Tribunal, dated 18 July 2019. 

   Background

3. The Applicant and the Other Party are the parents of the Child, who was born in 2001.

4. A child support assessment in place from 5 January 2004 was based on the Applicant having 100% care of the Child.

5. On 8 May 2017, the Other Party advised the Respondent of a change in care arrangements from 25 March 2017 such that the Other Party had 100% care of the Child but that the Applicant may provide care in the future.

6. On 26 May 2017, the Respondent made a new care determination to reflect the changes notified by the Other Party (First Care Decision).

7. On 22 August 2017, the Applicant objected to the First Care Decision and on 9 February 2018 the Respondent disallowed the objection and affirmed the First Care Decision with effect from 25 March 2017 (Review Decision).

8. On 10 April 2019, the Applicant sought review of the Review Decision in the Social Services and Child Support Division of this Tribunal. 

9. On 18 July 2019, the Tribunal handed down its decision with effect from 10 April 2019 (AAT 1 Decision). The AAT 1 Decision:

   a.set aside the Review Decision and in substitution determined that from 26 May 2017 the Other Party had 62% care and the Applicant had 38% care of the Child;

   b.decided that special circumstances existed which prevented the Applicant from objecting to the  First Care Decision prior to 28 August 2017; and

   c.declined to make a determination under s.95N of the Child Support (Registration and Collection) Act 1988 (R&C Act) that there were special circumstances preventing the Applicant from making an application for review by AAT 1 prior to 10 April 2019.

10. On 30 August 2019, the Applicant applied for a review of the AAT 1 Decision by the General Division of the Tribunal.

11. A hearing of the matter was held on 18 February 2020.  The Applicant was self-represented. The Other Party chose not to be represented at the hearing.  The Respondent appeared on an amicus curiae basis and was represented by Ms Charlie Inglis.

    Issue for Determination

12. In the AAT 1 Decision, the Tribunal was not satisfied that there were special circumstances preventing the Applicant from making an application for review by AAT 1 prior to 10 April 2019 and so made its decision effective from 10 April 2019. The practical consequence of this is that the assessment of percentages of care as between the Applicant and the Other Party from 25 March 2017 as determined by the Tribunal in the AAT 1 Decision is of no effect because the Child turned 18 years of age in early 2019.

13. The Applicant’s ultimate purpose in seeking a review of the AAT 1 Decision was to give effect to the assessment of percentages of care as between herself and the Other Party as determined by the Tribunal in the AAT 1 Decision as from 25 March 2017. To achieve this the Applicant sought review only of that part of the AAT1 Decision in which the Tribunal declined to make a determination under s.95N of the R&C Act that there were special circumstances preventing the Applicant from making an application for review by AAT 1 prior to 10 April 2019. The Applicant stated that she did not challenge the other aspects of the AAT 1 Decision.

14. Section 95N provides as follows:

    (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.

    …

15. Applying s.95N(1) to the facts of this application:

    a.the AAT 1 Decision did vary or substitute a decision on an objection to a care percentage decision, namely the Review Decision; and

    b.the application for an AAT 1 review of the Review Decision was made on 10 April 2019, which was more than 28 days after notice of the Review Decision was given.

    Accordingly, the effect of s.95N(1) is that the AAT 1 Decision should take effect on 10 April 2019. However, s.95N(2) provides that if the Tribunal 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 Tribunal may determine that subsection (1) applies as if  the reference to 28 days in that paragraph were a reference to such longer period as the Tribunal determines to be appropriate. 

16. The Applicant addressed this issue at the hearing and presented evidence and submissions directed at establishing that there were special circumstances preventing her from applying for the AAT first review within the 28 day period stipulated in s. 95N(1) and asserting that the Tribunal on review should effectively extend the time for making her application.

17. The Respondent filed a Statement of Facts, Issues and Contentions for the assistance of the Tribunal in identifying and applying the relevant legislative provisions to the evidence.[1] 

    Relevant Evidence

    [1] The Respondent correctly characterized the proceedings as essentially a dispute between the Applicant and the Other Party and declined to advance a position at to the findings of fact required to be made by the Tribunal.

18. Notice of the Review Decision was given on or about 9 February 2018. The Applicant sought review of the Review decision on 10 April 2019. Accordingly the application for review was made some fourteen months after notice was given and approximately thirteen months after the 28 days allowed for in s.95N(1).

19. The Applicant provided a written statement to the Tribunal[2] and gave evidence at the hearing.  She advanced three principal reasons for not having applied within the required period.

    [2] ST 1.

20. First, she claimed that she was consumed by the demands of the Child’s medical conditions.  She gave evidence that the Child suffered from Epstein Barr virus and chronic acne and provided medical evidence[3] that the Child had been diagnosed with depression in 2016, had a broken hip in 2017, suffered glandular fever in 2018 and had corrective surgery for his feet in February 2019.

    [3] ST 3.

21. Second, the Applicant claimed that she had significant travel requirements owing to her living in Mildura while the Child was residing with his father in Melbourne.  She stated in her evidence that this required her to drive from Mildura to Heathcote to collect the Child from the bus on each occasion he stayed with her, which was each weekend and on school holidays.

22. Third, she claimed she was subject to significant work demands as a VCE teacher.

23. The Applicant further stated in her written statement that each of these demands made her feel highly stressed, sleepless, anxious and unable to focus.  This claim was corroborated by the unsworn evidence of her sisters.[4]  However, no independent medical evidence was provided to substantiate the nature and extent of these conditions and the extent to which they inhibited her ability to attend to the lodgment of her application for review.

    [4] ST 2.

24. In her oral evidence the Applicant confirmed that she was relieved of her VCE teaching responsibilities in 2018.  Her employment records[5] indicate that she worked 22.8 hours per week (3 days per week) throughout the relevant period and that she had extended leave in Term 2 of 2018 and again from February to April 2019. She resigned in April 2019. The AAT1 Decision assessed her level of care for the Child as 38% during the relevant period.

    [5] ST 4.

25. The Applicant acknowledged in her oral evidence that her failure to lodge her application for review on time was due to an over sight on her part and that she had not made it a priority.  She said that as a VCE teacher she had taught her students that a deadline is a deadline and it was out of character for her to not apply on time.

26. The Tribunal accepts that the Applicant had demands on her time due to the need to care for the Child and that this caused her some degree of anxiety and distress.  However, she accepted the assessment in the AAT 1 Decision that her proportion of care for the Child at relevant times was only 38%. The evidence does not establish that this prevented the Applicant from applying within the required time. 

27. The Applicant is an educated person who knew the importance of complying with deadlines.  She worked part-time and did not have the demands of teaching at the VCE level for most of the relevant period. The Tribunal does not accept that her teaching duties prevented her from attending to the lodgment of her application in a timely manner.

28. Accordingly, having regard to all of the evidence, the Tribunal is not satisfied that there were special circumstances preventing the Applicant from making an application for review within the 28 day period as prescribed, and the Tribunal declines to make a determination under s.95N of the R&C Act.

29. As the Applicant does not otherwise dispute the findings of the Tribunal in the AAT1 Decision the decision as a whole is affirmed.

    Decision

30. The decision under review is affirmed.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Member R West

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

Associate

Dated: 4 May 2020

Dates of hearing:	18 February 2020
Date final submissions received:	24 February 2020
Applicant:	In person
Solicitors for the Respondent:	Ms Charlie Inglis Services Australia