Rosena and Pippen (Child support)

[2024] AATA 2020

Rosena and Pippen (Child support) [2024] AATA 2020 (2 April 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2023/BC027213, 2023/BC027214, 2023/BC027227 and 2023/BC027228

APPLICANT:  Miss Rosena

OTHER PARTIES:  Child Support Registrar

Mr Pippen

TRIBUNAL:  Member I Sheck

DECISION DATE:  02 April 2024

DECISION:

The Tribunal sets aside the decision under review, and, in substitution, decides that:

• Miss Rosena’ care percentage in respect of [Child 1] is 50% with effect from 24 May 2021 to 18 April 2022 inclusive; and

• Mr Pippen’s care percentage in respect of [Child 1] is 50% with effect from 24 May 2021 to 18 April 2022 inclusive; and

• the date of effect of the Tribunal’s decision is 18 December 2023.

CATCHWORDS 
CHILD SUPPORT – percentage of care – determination of equal care – whether there was a change to the pattern of care– 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

BACKGROUND

1. Miss Rosena and Mr Pippen are the parents of [Child 1], born on [date] 2006.  A case was registered with Services Australia – Child Support (Child Support) for the assessment of child support on 5 October 2006 and collection of the liability from 30 June 2009.  As at June 2020 the assessment of child support was based on care percentages for [Child 1] of 100% to Miss Rosena and 0% to Mr Pippen, which had been in place since the commencement of the assessment.  On 29 March 2021 Miss Rosena contacted Child Support and notified that she was currently incarcerated but remained financially responsible for [Child 1].

2. During the course of May 2021 Child Support received information from Centrelink indicating that [Child 1] was in the care of Mr Pippen with effect from 25 February 2021.  On 3 June 2021 Child Support updated the child support assessment to reflect that the care percentages for [Child 1] were:

   ·         0% for Miss Rosena with effect from 24 June 2020;

   ·         0% for Miss Rosena with effect from 25 February 2021;

   ·         100% for Mr Pippen with effect from 25 February 2021 and this was used in the child support assessment from 5 May 2021.

3. Mr Pippen was notified by letter dated 3 June 2021 that this care change had ended the assessment for [Child 1] and that if he wanted a new assessment he would need to reapply for assessment.  Mr Pippen did so on 10 June 2021.  On 14 June 2021 Miss Rosena notified Child Support that she had been released from incarceration on 24 May 2021 and [Child 1] returned to her care from that day.  On 18 June 2021 Mr Pippen contacted Child Support and notified that he still had care of [Child 1] for 100% of the time.  On 28 June 2021 Miss Rosena Pippencontacted Child Support and notified that she still had care of [Child 1] for 100% of the time.  On 6 July 2021 the parties were notified that Mr Pippen’s application for assessment had been accepted and his care percentage had been assessed as 100% with effect from 10 June 2021, the commencement of the new assessment.

4. Miss Rosena continued to contact Child Support on numerous occasions reiterating that she had the care of [Child 1] since her release from gaol on 24 May 2021 and providing supporting documents.  On 12 August 2021 a Child Support officer determined that Miss Rosena’ percentage of care for [Child 1] was 100% from 24 May 2021 and the parties were notified of this decision by letters dated 17 August 2021.  Child Support received information from Centrelink regarding the care of [Child 1] and pursuant to the care alignment provisions the new care determination was applied to the child support assessment. The parties were notified by letters dated 25 August 2021 that the care percentages for [Child 1] were now:

   ·         100% for Miss Rosena and 0% for Mr Pippen from 24 May 2021;

   ·         0% for Miss Rosena and 100% for Mr Pippen from 3 August 2021;

   ·         100% for Miss Rosena and 0% for Mr Pippen from 4 August 2021.

5. On 22 September 2021 Mr Pippen contacted Child Support and advised that [Child 1] had been in his sole care since 9 September 2021.  Mr Pippen was informed that he needed to contact Centrelink.  Mr Pippen again informed Child Support of this care change on 13 October 2021.  Child Support contacted Miss Rosena and she disagreed that there had been a further change in care.  Both parties were issued letters by Centrelink on 1 November 2021, requesting that they provide evidence regarding the care of [Child 1].  On 26 January 2022 Child Support was notified by Centrelink that Mr Pippen had been determined to have 100% care of [Child 1] with effect from 9 September 2021.  Pursuant to the care alignment provisions the new care determination was applied to the child support assessment. The parties were notified by letters dated 27 January 2022 that the care percentages for [Child 1] were now:

   ·         100% for Miss Rosena and 0% for Mr Pippen from 4 August 2021;

   ·         0% for Miss Rosena and 100% for Mr Pippen from 9 September 2021.

6. On 1 March 2022 Miss Rosena appeared before the Administrative Appeals Tribunal.  A differently constituted Tribunal made the decision that it had no jurisdiction to consider the Child Support decision that Miss Rosena’ care for [Child 1] was 0% with effect from 24 June 2020 as this decision had not been considered by an objections officer of Child Support.  Mr Pippen was subsequently informed by a letter from Child Support dated 17 March 2022 that “The AAT decided you had:  100% of care for [Child 1] from 25/02/2021 to 23/05/2021 [and] 0% of care from 24/05/2021”.  (The point must be made that the Tribunal did not make such a decision.)

7. On 28 January 2022 and on 7 February 2022 Miss Rosena contacted Child Support and indicated that she wished to object to the decision that she had 0% of care for [Child 1] with effect from 9 September 2021.  On 6 April 2022 an objections officer considered and disallowed Miss Rosena’ objection.  The objections officer noted that “[i]n the absence of sufficient evidence from both [Miss Rosena] and [Mr Pippen] relating to the period in question (from 9 September 2021), we cannot be satisfied that the decision made on 27 January 2022 was incorrect.”  On 3 May 2022 Miss Rosena contacted Child Support and advised that she wished to object to this decision. 

8. On 10 May 2022 Miss Rosena contacted Child Support and notified that as of 19 April 2022 she had 100% care of [Child 1].  On 13 May 2022 Child Support contacted Mr Pippen who advised that since 19 April 2022 [Child 1] had only been to stay with him for a couple of nights.   On 12 July 2022 a Child Support officer determined that Miss Rosena’ care percentage for [Child 1] was 100% and Mr Pippen’s 0% with effect from 19 April 2022.

9. During the contact of 13 May 2022 Mr Pippen also indicated that he wished to object to the decision that Miss Rosena’ percentage of care for [Child 1] was 100% in the period 4 August 2021 to 8 September 2021, as well as the decision that Miss Rosena’ percentage of care for [Child 1] was 100% in the period 24 May 2021 to 3 August 2021.

10. On 17 May 2022 an objections officer allowed Mr Pippen’s objection to “our decision made on 31 March 2022, to apply the Family Assistance Office (FAO) decision to reflect the care of [Child 1] as 365 nights (100%) to [Miss Rosena] and 0 nights (0%) to [Mr Pippen] from 24 May 2021”.  The decision of the objections officer was to refuse to apply the FAO decision, such that Mr Pippen had 100% care of [Child 1] from 24 May 2021.  The care percentage was to be applied to the child support assessment from 12 May 2022, as Mr Pippen had not objected within 28 days of the original decision.

11. On 17 May 2022 another objections officer partly allowed Mr Pippen’s objection to “our decision made on 31 March 2022, to apply the Family Assistance Office (FAO) decision to reflect the care of [Child 1] as 365 nights (100%) to [Miss Rosena] and 0 nights (0%) to [Mr Pippen] from 4 August 2021”.  The decision of the objections officer was to reflect the care of [Child 1] as 1 night (0%) to Miss Rosena and 364 nights (100%) to Mr Pippen from 4 August 2021.  The care percentage was to be applied to the child support assessment from 12 May 2022, as Mr Pippen had not objected within 28 days of the original decision.

12. On 17 May 2022 an objections officer disallowed Miss Rosena’ objection to “our decision made on 26 January 2022, to implement the Family Assistance Office (FAO) decision to reflect the care of [Child 1] as 365 nights (100%) to [Mr Pippen] and 0 nights (0%) to [Miss Rosena] from 9 September 2021”.  (The Tribunal notes that this decision had already been reviewed by an objections officer on 6 April 2022.) The objections officer noted that the effect of their decision was that there was no change to the child support assessment.

13. By applications received on 18 December 2023, Miss Rosena asked this Tribunal to review the 4 decisions of the objections officers (including the matter that had been reviewed twice). On 2 April 2024, the Tribunal conducted a hearing at which Miss Rosena gave evidence by MS Teams audio.  On 21 December 2023 Mr Pippen was added as a party to the review.  Mr Pippen had been given notice of the hearing and the scheduled time was 9:30am (Queensland time).  The Tribunal telephoned Mr Pippen at 9:28am and 9:30am but he did not answer his phone.  The Tribunal had before it the relevant documents from the parties’ Child Support files and computer records (429 pages), as well as documents A1 to A382 and AC1 to AC42 which had been provided by Miss Rosena. All of these documents had been issued to Miss [A] and Mr Pippen.

CONSIDERATION

1. The legislative provisions relevant to this decision are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Collection Act). The Act sets out the statutory formula for the calculation of child support, which takes into account each parent’s adjusted taxable income and the level of care they provide for each child of the assessment. The provisions require Child Support (and the Tribunal on review) to determine whether an existing care determination or determinations can be revoked and if so, what new care percentage decision can be made.

Has there been a change in care for [Child 1]?

1. As can be seen from the background to the matter as set out above, there have been a significant number of decisions made relating to [Child 1]’s care in the period from June 2020 to April 2022.  Decisions have been made by both Centrelink and Child Support.  In relation to [Child 1]’s care from June 2020 to 25 February 2021, this is the subject of application 2023/B184146 and will not be repeated in these Reasons.  This decision will focus on the care arrangements for [Child 1] from 24 May 2021 to 19 April 2022.  The Tribunal notes that both parties have produced a number of letters from various third parties attesting to the fact that each of them had 100% care of [Child 1] in this period.  The Tribunal gives these documents no weight.  The Tribunal also notes that the Child Support papers contain a letter provided by Mr Pippen and apparently written by [Child 1] dated 7 May 2021 attesting that she had been in Mr Pippen’s care since 25 February 2021.  [Child 1] was 14 years of age at the time.  The Tribunal is not of the view that it is appropriate to have regard to this letter and has not done so.

2. It is common ground and the Tribunal finds that Miss Rosena was admitted to [a] Correctional Centre on 25 February 2021 and released on 24 May 2021, having served her sentence.  Prior to her incarceration Miss Rosena arranged for her friends [Mr B] and his mother [Ms C] to stay in her [Suburb 1] home and look after [Child 1].  She left them money for bills and expenses.  Mr Pippen moved into the home on or about 16 April 2021 and [Mr B] and [Ms C] left.  It appears that [Child 1] was attending school at [College 1] during this period and Mr Pippen has provided a letter from the college attesting that [Child 1] was in his care and he paid the school fees.  (He has also provided proof of payment of school fees from 27 April to 31 August 2021.)  Miss Rosena then returned to the [Suburb 1] home on 24 May 2021. 

3. Miss Rosena has made a number of statements regarding what happened on 25 May 2021.  She has repeatedly stated that Mr Pippen moved out and [Child 1] remained in the home with her 100% of the time.  More recently, in her additional documents to the Tribunal, Miss Rosena has stated that Mr Pippen took [Child 1] from [Suburb 1] under duress and Miss Rosena was contacted by the police on 13 June 2021 after [Child 1] had been “dumped” at [a] train station by Mr Pippen.  The Tribunal put this inconsistency to Miss Rosena at the hearing.  She responded that this period was a bit of a blur.  She kicked Mr Pippen out of her home.  [Child 1] went with him.  And [Child 1]’s dog.  The Tribunal asked whether [Child 1] was in fact living with Mr Pippen from that point.  Miss Rosena responded that she would not call it living.  Mr Pippen was homeless and squatting in a property in [City 1].  [Child 1] had a new boyfriend, [name]: she spent a lot of time with him.  [Child 1] was “back and forth”; she would come back to stay with Miss Rosena and then Mr Pippen would come and pick her up in his car.  Miss Rosena has also stated in her documents to the Tribunal that [Child 1] was in her and Mr Pippen’s care on a 50/50 basis from June to August 2021.  The Child Support records indicate that Miss Rosena notified in March 2022 that she had care of [Child 1] for 72% of the time since 24 April 2021.  It is unclear whether this should in fact read 24 May 2021.

4. Although the Tribunal has sympathy for Miss Rosena’ situation and it is clear that she genuinely cares for her daughter, the point must be made that she is a poor historian and an unreliable witness.  As noted above, Mr Pippen did not attend the hearing therefore the Tribunal was unable to obtain evidence from him relevant to this period.  Much of the evidence Mr Pippen has provided is also unreliable.  The Tribunal finds that as at 24 May 2021 [Child 1] was in the sole care of her father Mr Pippen, who had relocated himself to Miss Rosena’ home in [Suburb 1].  [Child 1] was attending school at [College 1] and Mr Pippen was providing for her physical and emotional wellbeing.  Miss Rosena then returned to the home on 24 May 2021 and resumed care of [Child 1].  Mr Pippen moved out on 25 May 2021.  The Tribunal is not satisfied on the evidence before it that [Child 1] was in the sole care of either of her parents from that point forward.  The Tribunal accepts that [Child 1] was at times residing in the [City 1] area with Mr Pippen, at other times with Miss Rosena in [Suburb 1] and sometimes with her boyfriend or with other friends or acquaintances.  In the absence of any reliable record indicating the nights in care that [Child 1] spent with either parent, the Tribunal considers it appropriate to assess both Miss Rosena’ and Mr Pippen’s percentages of care as 50% with effect from 24 May 2021.

5. It appeared from the various Departmental papers before the Tribunal that there may have been a change in the care arrangements as at 4 August 2021.  The Tribunal asked Miss Rosena what happened at that time.  Miss Rosena replied that [Child 1] appeared in Court.  She was granted bail and an order made that she was to reside with Miss Rosena and she was on a curfew.  She stayed at Miss Rosena’ home for one night but then ran down the road and jumped in Mr Pippen’s car.  She went away with him and they did crime.  It appears that from around this time or possibly earlier [Child 1] stopped attending [College 1].  A letter from the college addressed to Miss Rosena indicates that [Child 1]’s enrolment was cancelled from 26 August 2021 due to non-attendance.  Miss Rosena has also provided a copy of an email she sent to the Department of Justice dated 4 August 2021, in which she states that she is not supportive of [Child 1] living with Mr Pippen in [City 1].  She references the Court Order made in 2011 in which [Child 1] was to be in the sole care of Miss Rosena and adds that she has transport to pick [Child 1] up from the detention centre.  The Tribunal asked Miss Rosena whether [Child 1] was in fact in detention overnight, as was claimed by Mr Pippen, and was released to her mother’s care on 4 August 2021.  Miss Rosena responded that [Child 1] was not in detention, she was in “the watchhouse”.  The Tribunal accepts this is the case.

6. The Tribunal noted that there appeared to be a further care change on 9 September 2021 and asked whether there was a particular incident which occurred on that day.  Miss Rosena said there was not.  Mr Pippen had advised Centrelink on 16 September 2021 that he had 100% care of [Child 1] from 9 September 2021 and provided supporting documents that referenced this date.   Miss Rosena has provided an email from [Child 1]’s solicitor dated 24 January 2022.  This sets out a list of 31 separate offences to which [Child 1] pled guilty, committed between 23 June 2021 and 29 September 2021.  Another 3 offences were dismissed.  It is not possible to determine from this document whether [Child 1] was in the care of her mother or her father (or neither) at the time of the various offences.  [Child 1] attended Court again later in 2021.  Mr Pippen has provided a further undated document showing that [Child 1] has been released on bail to his care, that she is under a curfew from 6pm to 6am and that she was due to attend Court again on 15 November 2021.

7. Although it is clear that [Child 1]’s interactions with the law became more frequent in the latter portion of the 2021 year, there is still no reliable evidence before the Tribunal that enables it to conclude that [Child 1] was in the sole care of either of her parents in this period.  The Tribunal therefore considers it appropriate to continue to assess both Miss Rosena’ and Mr Pippen’s percentages of care as 50% until 18 April 2022.  From 19 April 2022 on, the parties appear to be in agreement that [Child 1] was in the care of Miss Rosena, with [Child 1] only spending “a couple of nights” with Mr Pippen.  The Tribunal accepts that this is the case.

Should the existing care determinations in relation to [Child 1] be revoked?

1. Subsection 54F(1) of the Act sets out circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that an existing determination must be revoked if the Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the child or children. The Tribunal is required to consider what the actual care of [Child 1] was or is likely to be during the care period. As discussed above, the Tribunal has concluded that in the period 24 May 2021 to 18 April 2022 the care that was taking place did not correspond with the existing care of the child as assessed and the care percentages are to be assessed as 50% for Miss Rosena and 50% for Mr Pippen. Accordingly, the previous determinations of care, that Mr Pippen had a percentage of care of 100% and Miss Rosena had a percentage of care of 0%, must be revoked and new care determinations made.

Date of effect of the decision to revoke the care determination

1. In terms of the date of effect of the new care determination, if a party has advised of the care change within 28 days of the change, then the new determination takes effect from the date of the change.  That is the case here.  The notification by Miss Rosena that she had been released from incarceration and resumed the care of [Child 1] was received by Child Support on 14 June 2021 and was in relation to a change of care event that happened on 24 May 2021.  The existing determinations must therefore be revoked from 23 May 2021 and the new determination made with effect from 24 May 2021.

What is the date of effect of the Tribunal’s decision?

1. A number of determinations were made by objections officers of Child Support on 6 April 2022 and 17 May 2022 as discussed earlier in these Reasons.  The Tribunal is setting aside all of those determinations and substituting a new decision that Miss Rosena’ and Mr Pippen’s percentages of care for [Child 1] are each 50% in the period 24 May 2021 to 18 April 2022 inclusive.

2. Miss Rosena and Mr Pippen were notified of the objections officer’s decisions by letters dated 6 April 2022 and 17 May 2022 and PippenMiss Rosena did not apply for review of those decisions until 18 December 2023. Section 95N of the Collection Act provides that where a person applies to the AAT for review of a Child Support decision more than 28 days after being given notice of that decision, and the Tribunal varies or sets aside the original decision, then the general rule is that the date of effect of the Tribunal’s decision is the day on which the person lodged the application to the AAT. The 28-day time limit may be extended if special circumstances prevented the person from lodging the objection.

3. Miss Rosena told the Tribunal that she was just confused, she thought she was doing the right thing.  Whenever she went to Child Support they told her to go to Centrelink and vice versa.  She could not make sense of any of the decisions.  The Tribunal asked Miss Rosena whether there were any factors, such as her health, that may have prevented her from exercising her review rights within 28 days and she responded that there were not.  The Tribunal completely accepts that the situation and assessment of both the child support and Miss Rosena’ family tax benefit was extremely complicated, as can be seen from the extensive history of the matter as set out at paragraphs 1 to 12 of these Reasons.  Unfortunately, the Tribunal is unable to conclude that there were special circumstances that prevented her lodgement of an appeal for some 18 months therefore the Tribunal’s decision must take effect from 18 December 2023.

4. By the time of Miss Rosena’ application to the AAT, the period under review had ended and a further care determination of 100% to Miss Rosena and 0% to Mr Pippen had been made.  This means that the effect of this decision is that there is no change to the child support assessment as it currently stands.

DECISION

The Tribunal sets aside the decision under review, and, in substitution, decides that:

• Miss Rosena’ care percentage in respect of [Child 1] is 50% with effect from 24 May 2021 to 18 April 2022 inclusive; and

• Mr Pippen’s care percentage in respect of [Child 1] is 50% with effect from 24 May 2021 to 18 April 2022 inclusive; and

• the date of effect of the Tribunal’s decision is 18 December 2023.