Pritchard and Gofton (Child support)

Pritchard and Gofton (Child support) [2024] AATA 3241 (31 January 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/SC026497
APPLICANT:  Mr Pritchard
OTHER PARTIES:  Child Support Registrar
Ms Gofton

TRIBUNAL:Senior Member M Kennedy
DECISION DATE: 31 January 2024
DECISION:

The Tribunal sets aside the decision under review and sends the matter back to the Registrar with a direction that Mr Pritchard’s change in care notification of 6 July 2023 be considered in accordance with the child support law.

CATCHWORDS

CHILD SUPPORT – percentage of care – change to the likely pattern of care – primary decision erroneously identified a family assistance office care decision – Services Australia responses to Tribunal orders – decision under review set aside and sent back to the Registrar with a direction

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 DECISION

Mr Pritchard and Ms Gofton are the parents of [Child 1], in respect of whom a child support assessment is in place. Mr Pritchard applied to the Tribunal for review of an objection decision on 28 July 2023.
The objection decision pertained to a purported care percentage decision summarised in the objection decision record as follows:
The outcome of this decision is that it has been part allowed.
We have made the decision to reflect the FAO (Family Assistance Office) care of [Child 1] as 0% to [Mr Pritchard] and 100% to [Ms Gofton] from 22 May 2023, notified on 6 July 2023.
Generally speaking, care percentage decisions involve a party to a child support assessment notifying Services Australia – Child Support (Child Support) that care arrangements have changed from a particular date and Child Support then identifying whether those arrangements differ from the existing care percentage determination, and if so revoking it to substituting it with another. If either parent is dissatisfied with the decision emerging from that process they may object. If either parent is dissatisfied with the objection outcome they may seek review in the Tribunal.
In this matter, however, identifying those fundamental features of the process from the Tribunal papers and objections officer’s reasons in order to review the matter in accordance with the child support law was problematic. For example, the primary decision giving rise to Ms Gofton’s objection of 10 July 2023 was identified to be the ‘FAO (family assistance office) care decision of 6 July 2023’. The records before the Tribunal pertaining to that date, however, show Mr Pritchard making contact with Centrelink in the context of the child support scheme (not family assistance) to assert that neither parent had care of the child.
A subsequent record of 10 July 2023 briefly records that a ‘pended care’ had been deleted as a decision had already been made via CLK/FTB (family assistance). No records were provided in relation to any such decision. To further confuse matters, and as mentioned above, it is apparent that the objections officer proceeded on the basis that the decision under review was a decision to reflect the care of [Child 1] as 100% to [Mr Pritchard].
The matter proceeded to a hearing in the Tribunal on 10 October 2023. In the course of the hearing I noted Mr Pritchard’s remarks to the effect that the suggestion that he had 100% care of [Child 1] was all wrong. I understand Mr Pritchard’s position to be that neither he nor Ms Gofton provide care of [Child 1] and I note he has lodged a statutory declaration outlining how he had come to learn of this from [Child 1].
Ms Gofton’s position appears to be that while there was disruption to [Child 1’s] living arrangements at relevant times, she remained responsible for [Child 1’s] care and provided financial support. Ms Gofton’s description of the living arrangements is not consistent with Mr Pritchard’s account of what he was told by [Child 1].
Ms Gofton has not provided any documentary evidence to corroborate or demonstrate her position, expressing the view that she had neither obligation nor motivation to provide that evidence. I understand Ms Gofton’s position in this regard in light of what follows in relation to the process that has brought this matter to the Tribunal.
After explaining to Ms Gofton that she may in fact be best served in providing evidence to corroborate her position, and discussing in general terms the nature of evidence that may tend to corroborate [Child 1’s] living arrangements, Ms Gofton indicated she would provide further evidence but has not done so. There was some suggestion that relevant evidence may have already been provided to Centrelink but was not in the material before the Tribunal. At the time of the hearing this appeared to me to be something that was entirely possible and further material may come to light, but this was not to be the case.
After the hearing, I ordered the Registrar, pursuant to section 38 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) to provide an additional statement containing further and better particulars of the 6 July 2023 decision referred to as the FAO care decision including a reference to the evidence or other material on which the findings leading to the decision were based and the particulars of the reasons for the decision. I also reminded the Registrar of the obligation under section 37 of the AAT Act to provide a copy of every document that is in the Registrar’s possession or under the Registrar’s control that is relevant to the review of the decision of 6 July 2023.
To avoid doubt, in my view, the distinction within Services Australia between the child support programme and the family assistance programme creates no limitation on the Registrar’s obligation to provide relevant material to a decision that may have initially been made under the family assistance law, having regard to the scheme of both the family assistance law and the child support law that envisages that a care determination, generally speaking, made in one scheme will apply to the other, and where the outcome of an internal review process in one scheme will apply to the other.
The Registrar was to comply by 7 November 2023. My expectation was that I would receive a cogent statement of reasons and relevant documentation of the decision made under the family assistance law that had been referred to. The purpose of such a statement is not only to assist me in my review of the matter before me, but also to inform and assist the parties in a way that permits meaningful engagement with the review process.
The Registrar now accepts that Services Australia’s response to the Tribunal’s orders were not in an appropriate form.
More specifically, the initial responses misunderstood the nature of an order under section 38 of the AAT Act. Indeed, on 6 November 2023, Services Australia merely provided a statement of Ms Gofton of 8 August 2023 that addressed what I infer to be a consequence of the decision of 6 July 2023, rather than addressing any aspect of the care percentage decision itself.
At my direction, the Registry communicated with Services Australia to the effect that my order had been misunderstood and the response was unsatisfactory, and to clarify if Services Australia would comply with the order or if the statement provided was the extent of the intended compliance.
On 14 November 2023, an informal email was received by the Registry from Services Australia in apparent response to my section 38 order. The substance of the email did not meet the requirements of the order or section 38 and was not in an appropriate form to exchange with the parties to the review. The response appeared to suggest there had been no primary decision, casting doubt on the entire premise leading to the review in the Tribunal. The response contained references to systems and jargon that I was unable to fully understand.
My dissatisfaction with the response to my orders was again communicated to Services Australia. I issued further orders on 15 December 2023 seeking submissions addressing and explaining the email sent to the registry in purported compliance with my earlier orders on 14 November 2023, and to otherwise assist me in undertaking the review.
On 4 January 2024 I received comprehensive written submissions from Services Australia’s legal branch.
In very broad summary, the submissions demonstrate that the administrative process leading ultimately to the review in the Tribunal had miscarried. The Registrar submits no decision was made on 6 July 2023 under either the family assistance law or the child support law, but rather a keying error in the Child Support computer system had erroneously recorded a notification of a care change as accepted when it had not been accepted and had also erroneously recorded the source of the decision about the care change as the ‘FAO’, essentially erroneously recording that the decision had been made under the family assistance law when it had not. It had also erroneously recorded that the outcome was that Mr Pritchard had 100% care of [Child 1] when Mr Pritchard had never suggested that he did.
The Registrar submits essentially that as there had been no primary decision, there could be no objection, and the objection decision the subject of the application for review in the Tribunal was no decision at all in law.
As to the 6 July 2023 notification, the Registrar concedes that following Mr Pritchard’s contact with Services Australia, the potential change to the care arrangements he had drawn to the Registrar’s attention ought to have been held pending so the matter could be first discussed with Ms Gofton, but following a series of errors (which it is unnecessary to recount in these Reasons but is detailed in the Registrar’s submissions) including an erroneous reference to the family assistance programme as being the source of the information, the notification was erroneously marked as accepted.
The Registrar points to records demonstrating that the Services Australia officer appears to have recognised that keying errors had been made and had attempted to correct the error by creating another pending care change, but by then an automated data transfer process was already underway, with the result that the phantom FAO care ‘decision’ was essentially the subject of an automatic notification back to the Child Support computer system, and the phantom FAO care ‘decision’ triggered the automated cancellation of Ms Gofton’s family assistance.
When Ms Gofton contacted Services Australia to query the cancellation of her family assistance, the pending care change created with the intention of correcting the original error was administratively deleted and the erroneous care change ‘decision’ was interpreted as it appeared, namely a decision made under the family assistance law, and therefore the correct next step was the objection. This was also incorrect but the product of confusion that had by now arisen as to whether the underlying care ‘decision’ had been made under the child support or family assistance law.
The objection process then failed to address the fundamental incongruity between the substance of the information Mr Pritchard had provided in his contact and the statements he made in the objection process with the particulars of the decision said to be the decision under review, but was resolved on the basis that the objections officer was not satisfied that Mr Pritchard had provided any evidence that [Child 1] was living independently.
For the Tribunal, however, in the absence of the detailed submissions explaining the errors and the very clear concession now made by the Registrar to the effect that the administrative process had miscarried, the situation was incomprehensible and no progress could be made in completing the review until clarification was provided. As mentioned above, Services Australia’s responses to the Tribunal’s attempts to obtain that clarification was initially inappropriate and it has taken considerable time to receive the explanation now available. In this regard, I regret the delay in progressing the matter for Mr Pritchard and Ms Gofton.
The Registrar’s submissions were provided to Mr Pritchard and Ms Gofton for written comment, and I expressed willingness to reconvene the hearing if either party requested that I do so, and provided the parties with 14 days to respond. I have received no comment from either party and no request to reconvene the hearing. I will therefore complete the review on the basis of the material before me, the basis of the discussion that took place at the hearing of 10 October 2023 and the Registrar’s submissions on matters of fact and law.

CONSIDERATION

Returning to the substance of the review, the Registrar contends that the erroneous data entry activities of 6 July 2023 cannot constitute a decision at law (under either the family assistance or child support law), and therefore there was no decision capable of being subject to an objection decision. In this way, the Registrar contends that the Tribunal is bound to set aside the decision of the objections officer and remit the matter to the Registrar to consider Mr Pritchard’s care change notification of 6 July 2023 in accordance with the child support law.
The Registrar contends that the proposition that the erroneous data entry activities of 6 July 2023 cannot amount to decisions under the family assistance or child support law ought to be beyond argument. It would be certainly difficult to argue that any of legislative steps essential to the making of a new care percentage determination had in fact taken place, but nonetheless it is at least arguable that the erroneous entries did change the particulars of the child support assessment in fact. I note the Registrar does refer to the notion of decisions that are in fact made, whether or not they are legally effective for the different purpose of grounding the Tribunal’s jurisdiction under the AAT Act: Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd 24 ALR 307. The situation is further complicated in circumstances where there are measures in place effectively to deem decisions to have been made under the child support law if they have been made under the family assistance law and vice versa, and I note the proposition that at law, section 35T of the A New Tax System (Family Assistance) Act 1999 was not met and therefore for child support purposes there simply was no determination made under the family assistance law.
The Registrar’s submission that I am bound to set aside the objections officer’s decision and cannot decide the substance of the objection on the merits[1] has force in the very unusual factual and legislative context of this matter, and I accept it for the purposes of this matter. I would not go so far as to accept that it is unarguable that the erroneous creation of a record of a care change determination being made in the child support register means that there cannot be a decision amenable to objection under section 80 or section 80A of the Child Support (Registration and Collection) Act 1999.
[1] Written submissions of the Child Support Registrar, dated 4 January 2024, page 7 at [19]
However, I consider that in all the circumstances of this case, in any event, the Registrar’s proposed form of orders on the review is the desirable and the preferable outcome.
I agree that it is preferable for the care change notification made by Mr Pritchard on 6 July 2023 to be considered in accordance with the child support law as proposed by the Registrar, accepting that the process leading to the Tribunal has had every potential of depriving the parties of an opportunity to understand the issues and present their case and supporting evidence.
In addition to my concern in that regard, I accept the Registrar’s contention that in this case, having set aside the objection decision there is a real question as to whether I can consider and decide an objection that was not validly made in the absence of a decision amenable to objection.

DECISION

[2024] AATA 3241

31 January 2024

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Judicial Review

Procedural Fairness

Remedies

Statutory Construction