Bonsor and Sickler (Child support)

[2022] AATA 1569

Bonsor and Sickler (Child support) [2022] AATA 1569 (5 April 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/PC022352

APPLICANT:  Mr Bonsor

OTHER PARTIES:  Child Support Registrar

Ms Sickler

TRIBUNAL:Member M Baulch

DECISION DATE:  5 April 2022

DECISION:

The tribunal set aside the decision about the care percentages for [Child 1] and, in substitution, decided that there is to be no change to the care percentages that have applied in the child support assessment for [Child 1] since 1 January 2020. 

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – 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. The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable by one separated parent to the other.  It uses a statutory formula which contains variables such as the parents’ adjusted taxable incomes, the ages and number of children, and their percentages of care.

2. Mr Bonsorand Ms Sickler are the separated parents of two children.  Since 15 January 2015, Services Australia – Child Support (Child Support) has made administrative assessments of child support under the Act.  Most recently, those assessments had been on the basis that Mr Bonsor had 89% care of [Child 1] and Ms Sickler had 11% care of [Child 1].

3. On 25 May 2021, Ms Sickler advised Child Support there had been a change to the care arrangements for the children, such that she had 100% care of both children since 30 January 2021 (for [Child 2]) and 31 March 2021 (for [Child 1]).  That information was considered by a Child Support employee, who decided on 21 July 2021 that the care percentages applying to the child support assessment for the children should record Mr Bonsor having 0% care and Ms Sickler having 100% care of both children (the decision under review).

4. Mr Bonsor objected to that decision and, on 16 September 2021, that objection was disallowed.  Mr Bonsor has now applied to this tribunal for an independent review of Child Support’s decision.

5. A hearing into the application for review was held by the tribunal on 5 April 2022.  Mr Bonsor participated in the hearing by telephone and gave evidence under affirmation during the hearing.  A representative of the Child Support Registrar (the Registrar) did not participate in the hearing. 

6. The tribunal had before it relevant 244 pages of documents provided to it by Child Support pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act), copies of which the Registrar had sent to both parties. The tribunal also had regard to additional material lodged by Mr Bonsor (labelled folios A1 to A144) and Ms Sickler (B1 to B75).

PRELIMINARY MATTER

1. On 2 March 2022, the tribunal’s registry sent Ms Sickler a letter, to advise her of the date and time arranged for the hearing.  On 5 April 2022, when a tribunal officer attempted to contact Ms Sickler for the purposes of setting up the telephone conference for the hearing, Ms Sickler did not answer the telephone.  Several attempts to contact Ms Sickler were made.

2. Pursuant to paragraph 40(1)(b) of the AAT Act, the tribunal proceeded with the hearing in the absence of Ms Sickler, on the basis that Ms Sickler did not attend the hearing (by means of telephone) and had reasonable notice of the proceedings.

3. Later on 5 April 2022, Ms Sickler contacted the tribunal registry and advised that she had waited by her telephone, but had not received a telephone call for the hearing.  Ms Sickler provided a screen shot of her recent calls as evidence in support of her claim that she had not received a call for the hearing and requested that the hearing be rescheduled.  I noted that the screen shot of recent calls provided by Ms Sickler could be the subject of edits and I was not persuaded that it proved anything of relevance to this matter. 

4. It was my view that the hearing, having already been held, could not be rescheduled and I was not minded to hold a second hearing, the matter having been heard and my decision having been made. 

ISSUES

1. The statutory provisions relevant to this review application are found within the Act.

2. At the commencement of the hearing, Mr Bonsor advised me that he did not dispute Child Support’s decision regarding the care percentages for [Child 2], but only as they related to [Child 1].  Consequently, I only proceeded to consider Child Support’s decision regarding care percentages as they related to [Child 1].

3. The issue which arises in this case is what should be the percentages of care that apply in the child support assessment in respect of [Child 1]?

CONSIDERATION

1. Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that the parents will have in relation to their children during a care period.  Since 1 January 2020, the pattern of care that had applied to the child support assessment recorded Mr Bonsoras having 89% care of [Child 1] and Ms Sickler as having 11% care.

2. On 25 May 2021, Ms Sickler advised Child Support that she had 100% care of [Child 1] since 31 March 2021.

3. Mr Bonsor disputed that there had been any change in the care arrangements for [Child 1].  His evidence was that [Child 1] had commenced at boarding school in Western Australia (WA) for the 2020 school year.  At that point in time Mr Bonsor lived in the Northern Territory (the NT) – as did Ms Sickler – and [Child 1] would travel back to the NT for school holidays and spend equal time with each parent during those holidays.  Mr Bonsor stated that there were approximately 12 weeks of school holidays in each calendar year, and I was satisfied that the care percentages applying since 1 January 2020 reflected that [Child 1] would spend half those holidays – six weeks or 42 days – with Ms Sickler.

4. Mr Bonsor stated that in 2021 he travelled to WA to visit his family when borders between WA and the NT were closed and he remained in WA.  Mr Bonsor’s evidence was that nothing changed in the care arrangements for [Child 1], except that she was unable to travel to the NT in May 2021 to spend any school holiday time with Ms Sickler.  It was Mr Bonsor’s evidence that [Child 1] did not leave WA at all during 2021, but that Ms Sickler was able to travel to WA in September 2021 to spend school holiday time with [Child 1].

5. The term “care” is not defined in the child support legislation.  I did, however, have regard to the decision of Federal Magistrate Hughes (as she then was) in Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959, where she stated, at [56], that:

   In my view, in determining whether and to what extent a person has care of a child for the purpose of the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988, it is necessary to consider the following:

   a. To what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra curricular activities?

   b. To what extent does the person make arrangements for others to meet the needs of the child?

   c. To what extent does the person pay for the costs of meeting the needs of the child?

   d.To what extent does the person otherwise provide financial support for the child?

   e. To what extent does the child provide for his or her own needs or have those needs met from another source?

   f. To what extent is the child financially independent or financially supported from another source?

6. Mr Bonsor pays for [Child 1]’s tuition and boarding fees.  He is essentially providing for the majority of [Child 1]’s livings costs during the term time by meeting the cost of the boarding fees.  The evidence shows that both parents are emergency contacts for [Child 1] with the school and both parents can approve, or not approve, [Child 1]’s requests to be absent from school premises.  Mr Bonsor’s evidence was that he had regular contact with [Child 1] by telephone or text and he was aware that Ms Sickler also had regular contact with [Child 1].  Both parents appear to contribute to extra costs for [Child 1], other than those which are included in the school and boarding fees paid by Mr Bonsor.

7. Ultimately, I was unable to identify that there had been any change in the care arrangements for [Child 1] during term time in 2021 when Mr Bonsor was located in WA.  There were disruptions to the care arrangements for [Child 1] during school holidays, due to border closures, but I was satisfied that these were one-off events and did not represent a change in the ongoing pattern of care for [Child 1].

8. I found that from 31 March 2021 the pre-existing pattern of care – 89% for Mr Bonsor and 11% for Ms Sickler – continued.

9. Sections 54F, 54FA, 54G, 54H and 54HA of the Act provide that the existing pattern of care must, or may be revoked, in certain circumstances.  In every case, the power to revoke existing care determinations only arises when there is a change in the pattern of care, such that the actual pattern of care does not coincide with the percentages of care applying in the child support assessment.

10. In this case, I was satisfied that there has been no change to the care arrangements that have applied for [Child 1] since 1 January 2020.  I therefore declined to revoke the existing care determinations.

11. Therefore, and for these reasons, I decided to set aside the decision under review and substitute my own decision.

DECISION

The tribunal set aside the decision about the care percentages for [Child 1] and, in substitution, decided that there is to be no change to the care percentages that have applied in the child support assessment for [Child 1] since 1 January 2020.