Pippen and Child Support Registrar (Child support)

Pippen and Child Support Registrar (Child support) [2021] AATA 471 (19 January 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBERS:  2020/BC019906 & 2020/BC019952
APPLICANT:  Mr Pippen
OTHER PARTY:  Child Support Registrar
TRIBUNAL:Member P Jensen
DATE OF DECISIONS:                   19 January 2021
DECISIONS:

The decision to record Mr Pippen as providing 14% care to the children with effect from 1 July 2018 and [Ms A] as providing 86% care to the children with effect from 2 April 2020 is set aside and, in substitution, the Tribunal decides to not record a change in care from 1 July 2018.

The decision to record Mr Pippen as providing 0% care and [Ms A] as providing 100% care to the children with effect from 29 December 2019 is set aside and, in substitution, Mr Pippen is recorded as providing 43% care and [Ms A] is recorded as providing 57% care to the children from 4 January 2020 to 3 July 2020 pursuant to paragraph 54C(2)(a) of the Child Support (Assessment) Act 1989, and Mr Pippen is recorded as providing 0% care and [Ms A] is recorded as providing 100% care to the children from 4 July 2020.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no new determinations made – decision under review set aside and substituted

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made – 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 omitted 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 DECISIONS

Mr Pippen and [Ms A] are the parents of [Child 1] who was born in 2006 and [Child 2] who was born in 2008. A child support case was registered in 2007 with what is commonly called the Child Support Agency or CSA.
[In] December 2011 the Federal Magistrates Court made orders concerning the parents’ care of the children (“the Orders”). Broadly speaking, in the absence of an agreement to the contrary, Mr Pippen was to provide three nights of care per week and [Ms A] was to provide the balance of care.
It appears that from at least 25 January 2018, and possibly earlier, Mr Pippen was recorded as providing 43% care and [Ms A] was recorded as providing 57% care to both children pursuant to the Orders: page 71 of the hearing papers. The CSA was required to provide its computer record of that recorded care but it did not do so: pages 180 to 182 of the hearing papers.
On a date that the CSA has not disclosed, the Family Assistance Office (“the FAO”) decided to record Mr Pippen as providing 0% care and [Ms A] as providing 100% care to both children with effect from 29 December 2019. The FAO’s care decision had effect for child support purposes as if it had been made by the CSA: section 54K of the Child Support (Assessment) Act 1989 (“the Assessment Act”). The CSA should have promptly notified the parents of the decision and its consequences for child support purposes, but that did not occur. On 29 April 2020, Mr Pippen objected to the decision. An objections officer disallowed his objection. Mr Pippen promptly applied to the Tribunal for further review.
Meanwhile, on a date that the CSA has not disclosed, the FAO decided to record Mr Pippen as providing 14% care and [Ms A] as providing 86% care to both children. The CSA recorded Mr Pippen as providing 14% care from 1 July 2018, which was when the change in care was said to have occurred, and it recorded [Ms A] as providing 86% care from 2 April 2020, which was when the change in care was reported: section 54F of the Assessment Act. Again, the CSA should have promptly notified the parents of the decision and its consequences for child support purposes, but that did not occur. On 10 June 2020, Mr Pippen objected to the decision. The parents’ respective positions can be summarised as follows:
· Mr Pippen stated that as at July 2018, he had been providing, and he continued to provide, care to both children pursuant to the Orders (i.e. 43% care).
· [Ms A] stated that from 1 July 2018, Mr Pippen provided two nights of care per month to [Child 1] (i.e. 6% care) and two nights of care per week to [Child 2] (i.e. 28% care).
Inexplicably, an objections officer concluded that Mr Pippen provided 14% care and [Ms A] provided 86% care to both children from 1 July 2018. The objections officer disallowed Mr Pippen’s objection. Mr Pippen promptly applied to the Tribunal for further review.
[Ms A] was not automatically a party to Mr Pippen’s applications for review. The Tribunal Registry invited her to apply to be made a party to the applications for review. She contacted the Registry on 13 October 2020 but declined to make those applications. I conducted a hearing on 19 January 2021. Mr Pippen gave sworn evidence by conference phone.
I will deal firstly with the reported change in care from 1 July 2018. [Ms A] did not report the change in care until 2 April 2020. She did not explain how she was able to recall that particular date on which the change in care was said to have occurred. She has not provided any contemporaneous records of the parents’ care around that time: e.g. emails, text messages, contemporaneous diary entries.
[Ms A] provided a statement from [Ms B] dated 12 March 2020. [Ms B] stated that from 1 July 2018 to 28 December 2019, Mr Pippen provided an average of two nights’ care per month to [Child 1] and two nights’ care “most weekends” to [Child 2]. The statement does not disclose [Ms B’s] relationship to [Ms A] or the source of her knowledge.
[Ms A] provided a statement from [Ms C], who is [Ms A’s] and the children’s godmother. She described a similar pattern of care, adding that “I know to to [sic] be correct due to spending time with the children and [[Ms A]] at the times [Mr Pippen] is supposed to.”
[Ms A] provided a statement from [Ms D]. She described a similar pattern of care. Mr Pippen noted that [Ms D] statement was witnessed at [a named] Police Station in Victoria. Mr Pippen queried how a person living in Victoria could comment on the care being provided in Queensland. It is one of the many questions I would have put to [Ms A] if she had applied to be made a party to the proceedings.
Mr Pippen gave sworn evidence that the change in care described by [Ms A] did not occur. He made himself available to be questioned in respect of the matter. He provided statements from [four named persons].[1] To varying degrees, they support Mr Pippen’s evidence that there was no change in care around July 2018. In particular, [one] stated that he shared a house with Mr Pippen from January 2016 to October 2019, and Mr Pippen “would normally have [the children] on weekends from Friday evening to Monday mornings.”
[1]The CSA redacted their surnames in contravention of the Child Support Review Directions.
On balance, I find that a change in care did not occur around July 2018. It appears that Mr Pippen objected to the original care decision on the same day that the CSA belatedly issued a notice in respect of that decision. There is no dispute that Mr Pippen promptly applied to the Tribunal for review of the objections officer’s decision. The substituted decision to not record a change in care from 1 July 2018 will therefore have full retrospective effect: Part 5, Division 4, Subdivision C of the Assessment Act and section 87AA of the Child Support (Registration and Collection) Act 1988.
Turning to the reported change in care from 29 December 2019, Mr Pippen provided the following text messages between himself and [Ms A] dated 22 November 2019 (with minor typographical errors in the original):
Mr Pippen:I can have the kids from xmas day till 29th dec. I’m away from 30th Dec to 8th January. I can arrange to have the kids after that aswell. […]
[Ms A]:Sorry I have plans for Xmas day until the 2nd week of Jan since that is what you always have with the kids
You’ll have to arrange someone to have them
At the hearing, Mr Pippen said he arranged for his sister to provide care while he was away, and that is what occurred. He said [Ms A] arrived at his sister’s place on 4 January 2020 with a copy of the Order, and in the company of the police, and the children were placed in her care. That accords with a CSA file note dated 12 June 2020 in which the CSA recorded [Ms A] as stating: “[the children] became distressed police were involved, the children came back into my care on the 04 January 2020.” I find that there was a change in the parents’ actual pattern of care from 4 January 2020.
There is no dispute that Mr Pippen provided very little care, and no pattern of care, in the months following 4 January 2020. He provided a calendar which purported to state his nights of care, but it emerged during the hearing that it did not reflect the information he had intended to provide. He suggested that he may not have saved the document correctly. He stated at the hearing that he provided the following nights of care from 4 January 2020 to 31 August 2020:
21, 22 and 23 February 2020
20, 21 and 22 March 2020
19, 20 and 21 June 2020
26, 27 and 28 June 2020
31 July 2020
1, 2, 28, 29 and 30 August 2020
Care decisions usually reflect the pattern of care that each parent has provided, and is likely to provide, during the relevant care period: sections 49 and 50 of the Assessment Act. Mr Pippen was providing infrequent ad hoc care, and he was not providing a pattern of care. His pattern of actual care equated to 0% care, and [Ms A’s] pattern of actual care equated to 100% care.
In some circumstances, parents can be recorded as providing the care prescribed by a formal care arrangement, such as the Order, rather than their actual care. Such decisions are called interim determinations and they are made pursuant to section 51 of the Assessment Act. Subsection 51(1) effectively provides that section 51 applies if:

·    there has been a change in care;
·    there is a care arrangement in force;
·    the parents are not providing care pursuant to the care arrangement; and
·    the parent with reduced care “is taking reasonable action to ensure that the care arrangement is complied with”.

As noted earlier, I have found that there was a change in care on 4 January 2020.
Mr Pippen has provided a copy of the Order. [Ms A] submitted that the Order was subsequently dismissed. In support of that submission, she provided an order dated 8 August 2012 which simply states: “That all outstanding applications be dismissed.” It does not state that previous orders are dismissed. Mr Pippen explained that the application on foot at the time concerned the parents’ property settlement, but they reached an agreement in respect of their property settlement, hence the dismissal of that application. I find that the Orders remained in force.
From 4 January 2020, the parents were not providing care pursuant to the Orders.
The main issue is whether Mr Pippen was taking reasonable action to have care pursuant to the Orders. He provided evidence that he contacted Relationships Australia on 10 January 2020 to initiate mediation. He provided copies of emails between himself and [Ms A] in which he sought to resume his care pursuant to the Orders. I noted that he had provided copies of emails in January and May 2020. I asked whether he had been in communication with [Ms A] during other months. He stated that from February to August 2020, he sent emails about the care of the children to [Ms A] on the following dates:
7 and 21 February 2020
20 March 2020
10 April 2020
11, 22, 28 and 29 May 2020
9 and 10 June 2020
10 and 30 July 2020
5, 9, 11 and 18 August 2020
Mr Pippen stated that he also communicated with [Ms A] via text messages, and he offered to list the dates on which he sent her text messages. I did not consider it necessary to require him to provide that evidence.
Mr Pippen stated that his attempts to engage in mediation were thrown into disarray due to COVID-19, which made it difficult to make contact with Relationships Australia — he said he was sometimes on hold on the phone for over an hour — and when he did make contact, Relationships Australia appeared to have lost information or not processed the information that he had provided. He said Relationships Australia asked him to provide a copy of the Orders, and he applied to the Court for a copy, but that proved difficult because the Court had not digitised its records from 2011. He said he contacted [a legal firm] in April 2020 to commence legal proceedings to have the Orders enforced but he was advised that their fee would be approximately $10,000, which he could not afford. He also contacted [a legal service], which provided him with legal advice but would not represent him in court proceedings. It reiterated what he said he already knew: he needed to obtain a certificate from Relationships Australia confirming that he had attempted mediation before the Court would consider making a contravention order.
On balance, I find that Mr Pippen was taking reasonable action to have care pursuant to the Orders for at least 26 weeks following 4 January 2020. I therefore find that the requirements of subsection 51(1) of the Assessment Act are satisfied.
Subsection 51(5) of the Assessment Act states, in effect, that an interim determination may not be made if “special circumstances exist in relation to the child”. [Ms A] has not provided evidence of any such special circumstances, and I find that there were no such special circumstances.
The interim determination starts on the day on which the change in care occurred, and, in the particular circumstances of this case, ends 26 weeks later: section 53A of the Assessment Act.
For those reasons, Mr Pippen will be recorded as providing 43% care and [Ms A] will be recorded as providing 57% care to the children from 4 January 2020 to 3 July 2020, and Mr Pippen will be recorded as providing 0% care and [Ms A] will be recorded as providing 100% care from 4 July 2020: section 54C of the Assessment Act.

DECISIONS

[2021] AATA 471

19 January 2021

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Natural Justice