Burchet and Gooche (Child support)

[2022] AATA 3049

Burchet and Gooche (Child support) [2022] AATA 3049 (14 July 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/MC023719

APPLICANT:  Mr Burchet

OTHER PARTIES:  Child Support Registrar

Ms Gooche

TRIBUNAL:Member D Lambden

DECISION DATE:  14 July 2022

DECISION:

The decision under review is affirmed.

CATCHWORDS

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 – no interim period applied – decision under review affirmed

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

BACKGROUND

1. Mr Burchet and Ms Gooche are the parents of [the child], in respect of whom a child assessment was in place.

2. The care percentage determination affecting the calculation of child support reflected a court order of 18 August 2017, and provided 50% care each to Mr Burchet and Ms Gooche.

3. On 29 November 2021 Ms Gooche contacted the Child Support Agency requesting a change in care and stated that she had 100% care of [the child] from 17 November 2021.

4. The Child Support Agency spoke with [name] on 17 December 2021 and he confirmed the change in care had occurred for [the child].

5. On 17 December 2021 the Child Support Agency revoked the existing care determination and made a new one reflecting [the child] 100% in Ms Gooche’s care with effect from 17 November 2021.

6. On 31 January 2022 Mr Burchet objected to the care decision. He advised that court orders were made in 2017 outlining that [the child]’s care is shared on a 50/50 between Mr Burchet and Ms Gooche. He stated that [the child]’s care has been occurring as outlined in the court orders since they were made until 17 November 2021 and after this date [the child] did not return to his care.

7. On 23 March 2022 the objections officer decided to disallow Mr Burchet’s objection. The Child Support Agency took into account that Mr Burchet had advised that he had contacted legal aid in early December 2021 however he did not have a response and he provided a copy of a letter dated 8 February 2022 from his lawyer [Mr A] from [Law firm] to Ms Gooche in relation to Ms Gooche holding care of [the child] and paying school fees.  The Child Support Agency found that based on this information that Mr Burchet had not taken reasonable action within a reasonable period of time to ensure compliance with the care arrangements for [the child] and an interim care determination should therefore not apply for [the child].

8. On 20 April 2022 Mr Burchet applied to this tribunal for an independent review of the objection officer’s decision.

9. Ms Gooche applied to be added as a party to this appeal which was accepted.

10. A hearing into the application for review was held by the tribunal on 22 June 2022 via MS Teams.  Mr Burchet gave evidence under affirmation during the hearing.  Ms Gooche chose not to attend the hearing and she provided a written submission to the tribunal.

11. The tribunal had before it relevant documents provided to it by the Child Support Agency pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975, which were labelled Exhibit C1 folios 1 to 150 and Exhibit C2 folios 125 to 148. Mr Burchet provided  documents which were indexed A1 to A7 and Ms Gooche provided a document was indexed B1; a copy of all of the papers were provided to Mr Burchet and Ms Gooche prior to the hearing.

12. The tribunal adjourned the matter to research the law.

13. The tribunal considered all of the evidence available to it in the context of the relevant legislation and on 14 July 2022 the tribunal proceeded to determine the matter.

ISSUES

1. The issues for the tribunal to determine are:

   a)    What were the care arrangements in relation to the care of the child in the relevant care period?

   b)    Should a new determination of a percentage of care for the child be made? If so, what is the percentage of care and from when should it apply?

   c)    Should an interim care determination be made in relation to the child and, if so, for what period should it apply?

CONSIDERATION

1. The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act1988.

2. Percentage of care determinations are made under section 49 and/or section 50 of the Assessment Act. Section 49 of the Assessment Act provides authority to make a determination in circumstances where a parent has no care of the child. Section 50 of the Assessment Act provides authority to make a determination of a percentage of care in situations where a person has a pattern of care. Where the Child Support Registrar is satisfied that a responsible person has had, or is likely to have, a pattern of care for the child during the relevant care period, the Registrar must determine that person’s percentage of care for the child during the care period.

3. The “care period” is effectively defined in the Assessment Act as “…such period…as the Registrar considers to be appropriate having regard to all of the circumstances”.

4. The pattern of care can be established either according to a “care arrangement” (such as court orders) or the actual care that is taking place. Depending on whether a pattern has been established or not, the tribunal can then proceed to determine the percentage of care applying the appropriate law (sections 49 and 50 of the Assessment Act).

5. Section 54A of the Assessment Act provides that the Registrar may assess the level of care on the number of nights that a parent has during a care period.

6. In this case, Mr Burchet and Ms Gooche did not contend that nights were an unsuitable measure of the care of [the child] and the tribunal finds that nights are an appropriate method of ascertaining the care in this case.

7. For the purpose of determining whether a person “has had, or is likely to have, a pattern of care for the child”[1] the tribunal takes into account evidence of the care the person has had, or the actual care, from the date of the asserted change in care and up to the time of the original determination by the Registrar and evidence of the pattern of care the person is, or was, likely to have at that point in time.

   [1] Paragraph 50(1)(a) of the Assessment Act

8. In this case, there were court orders in existence from 18 August 2017. The Assessment Act refers to a “care arrangement”. Section 5 of the Assessment Act refers to the “Family Assistance Act” for its definition of a “care arrangement” and section 3 of the A New Tax System (Family Assistance) Act 1999 provides that a “care arrangement” includes a court order such as a parenting order within the meaning of section 64B of the Family Law Act 1975. Hence the tribunal finds that the court order of 18 August 2017 is a “care arrangement” for the purposes of the Assessment Act and the order outlines that the care of [the child] is shared by Mr Burchet and Ms Gooche on a 50/50 basis.

9. Under the scheme for determining percentages of care, existing care determinations continue in effect until they are revoked. Relevant to this matter section 54F of the Assessment Act provides for revocation of a determination of a percentage of care if (among other requirements):

   ·     the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the person’s existing percentage of care; and

   ·     the Registrar is satisfied that the person’s cost percentage for the child would change if the Registrar were to determine another percentage to be the person’s percentage of care for the child; and

   · provisions relating to the making of an interim care determination do not apply (sections 51 and 53A of the Assessment Act).

10. The initial issue which the tribunal needs to determine is whether the pattern of care changed for [the child] on and from 17 November 2021 and whether the actual care that was occurring did not correspond with the existing care determination.

11. It was not in dispute that from 17 November 2021 that the court order was not being followed when [the child] ceased to be in Mr Burchet’s care.

12. The tribunal is satisfied that from 17 November 2021 the care of [the child] that was taking place was not the same as the pre-existing percentages of care (or the care as provided in  the court orders dated 18 August 2017).

13. The tribunal therefore finds that from 17 November 2021 the care of [the child] was 100% to Ms Gooche and 0% to Mr Burchet.

14. The tribunal finds that pursuant to section 54F of the Assessment Act, the existing percentage of care determination for the parents should potentially be revoked. The tribunal finds that the notification of the change of care was made by Ms Gooche on 29 November 2021.

15. Section 51 of the Assessment Act provides that two care determinations may be made (called an “interim determination”) if a care arrangement, such as a court order, is not being complied with and the parent with reduced care is taking “reasonable action” to have the court order complied with. “Reasonable action” is not defined in the legislation. The Explanatory Memorandum to the Bill for the amending Act that introduced section 51, referring to “reasonable action” states: “... for example, a parent may be negotiating with the other parent to have the care arrangement complied with, or seeking advice and assistance from a family relationship centre, or taking action through other dispute resolution processes.”

16. In addition, government policy is reflected in the Child Support Guide (the Guide) which states  at 2.2.4 that reasonable action could include:

    ·     negotiating with the other party in a genuine attempt to ensure compliance with the care arrangement;

    ·     making and/or attending an appointment at a family relationships centre or other dispute resolution service with the aim of ensuring the care arrangement is adhered to;

    ·     seeking or obtaining legal advice regarding the making of a court order;

    ·     filing an application to the court to seek an order to be made or enforced; or

    ·     notifying the police that the child has been taken without consent.

17. In determining an application for review and in the interests of consistency of decision making, the tribunal would ordinarily apply such policy providing it was not inconsistent with the Act.[2]

    [2] See Drake v Minister for Immigration and Ethnic Affairs [1979] FCA 39

18. Included in the tribunal papers was a letter to Ms Gooche dated 8 February 2022 from [Law firm] who were representing Mr Burchet.  The letter refers to the parties having equal shared parenting responsibility.  Mr Burchet stated at the hearing that he was trying to avoid legal fees by starting a court case only to find out that [the child] may return to his care at a later date, for example February or March 2022.  Mr Burchet stated that his finances did not allow him to instigate court proceedings. He stated that he sought legal advice from a community service in December 2021 however the service was ready to close for the year and could not assit him.  Mr Burchet stated that he could have sent an email to Ms Gooche however his view is that it would have been ignored. The tribunal accepts that Mr Burchet took these actions however the tribunal concluded that he was not taking reasonable action to restore his care of [the child] as there is no evidence that Mr Burchet attempted to discuss the situation with either [the child] or Ms Gooche and the letter written to Ms Gooche by [Law firm] on Mr Burchet’s behalf was written on 8 February 2022 which was well after the original decision was made by the Child Support Agency and also after Mr Burchet had objected to the original decision.

19. Therefore the tribunal determined that an interim care decision should not be made. 

20. The tribunal agrees with the decision of the Child Support Agency to reflect the care of [the child] as 100% to Ms Gooche and 0% to Mr Burchet from 17 November 2021.

DECISION

The decision under review is affirmed.