Burridge and Claydon (Child support)
[2024] AATA 4118
•19 August 2024
Burridge and Claydon (Child support) [2024] AATA 4118 (19 August 2024)
DIVISION:Social Services & Child Support Division
REVIEW NUMBERS: 2024/SC027808 and 2024/SC027960
APPLICANT: Mr Burridge
OTHER PARTIES: Child Support Registrar
Ms Claydon
TRIBUNAL:Member I Sheck
DECISION DATE: 19 August 2024
DECISION:
The decision under review is affirmed.
CATCHWORDS
CHILD SUPPORT – percentage of care – mother objected to the decision to apply an interim care determination – objection was made more than 28 days – special circumstances – interim care determination does not apply takes effect from the date that the original decision took effect – decision under review is 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 theChild Support (Registration and Collection) Act 1988.
REASONS FOR DECISION
BACKGROUND
Ms Claydon and Mr Burridge are the parents of [Child 1], [Child 2] and [Child 3]. A case was registered with Services Australia – Child Support (Child Support) for the assessment of child support on 10 July 2018 and Child Support has been responsible for the collection of the liability since 13 October 2022. As at the beginning of 2023, the assessment of child support was based on care percentages of 100% for Ms Claydon and 0% for Mr Burridge.
On 21 February 2023 Mr Burridge notified Child Support that the care arrangements were to change pursuant to an order made by the Federal Circuit and Family Court (FCCA) on 17 February 2023. Mr Burridge provided a copy of that order, under which it was calculated by Child Support that Mr Burridge would have care of [Child 1], [Child 2] and [Child 3] for 72 nights per year or 19% of the time. Child Support contacted Ms Claydon regarding the care arrangements and she advised that Mr Burridge did not have care of the children as set out in the Court Order. Mr Burridge provided Child Support with evidence on 11 April 2023 relating to his efforts to have the court ordered care arrangements complied with.
On 3 May 2023 an officer of Child Support determined that Ms Claydon continued to have 100% care of [Child 1] and [Child 2] and Mr Burridge 0% care with effect from 17 February 2023. In terms of the child support assessment, the care percentages for all 3 children were to be altered to 81% for Ms Claydon and 19% for Mr Burridge from 17 February 2023 to 15 February 2024 because Mr Burridge was taking reasonable action to make sure that the care arrangements as set out in the Court Order were complied with, therefore an interim care determination was to be applied for 52 weeks.
On 16 August 2023 Ms Claydon formally objected to the decision to apply an interim care determination. On 27 February 2024 an objections officer of Child Support allowed Ms Claydon’s objection. This meant that Ms Claydon’s care percentage for [Child 1] and [Child 2] reverted to 100%. The objections officer noted that “...an interim determination will only be made where it is the first care percentage determination in relation to a responsible person's care of a particular child. This is because an interim determination cannot be made where there was an existing care percentage determination that has been revoked”. The objections officer also considered the date of effect of their decision, given that Ms Claydon’s objection was made more than 28 days after having been given notice of the original decision. The objections officer concluded that there were special circumstances that prevented Ms Claydon from objecting earlier, therefore their decision took effect from 17 February 2023.
By applications received on 10 and 16 April 2024, Mr Burridge asked this Tribunal to review the decision of the objections officer. On 19 August 2024, the Tribunal conducted a hearing at which Mr Burridge and Ms Claydon gave evidence by MS Teams audio. The Tribunal had before it the relevant documents from Child Support, which had been copied to the parties.
CONSIDERATION
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 can be revoked and if so, what new care percentage decision can be made.
Has there been a change in care?
As at 17 February 2023 Child Support had recorded that in respect of the children, Ms Claydon had an attributed percentage of care of 100% and Mr Burridge, 0%. The first issue to be determined is whether the care that was actually taking place corresponded with the recorded percentages of care.
The background to the case is as set out above. In relation to the facts of the matter, the parties are largely in agreement. From the Court Order it can be seen that there is a staged approach to the change in care arrangements: the children were initially to stay with their father every other Saturday night, then every alternate weekend (Friday to Sunday) and finally (coming into effect from 19 May 2023) from after school Friday to before school Monday. It is common ground that this pattern of care did not eventuate for the older girls, [Child 1] and [Child 2]. Ms Claydon has submitted that this was because they did not want to stay with their father and Mr Burridge has responded that Ms Claydon was withholding care. For the reasons that are discussed below, it is not necessary for the Tribunal to make a finding on this point.
In accordance with the Court Order dated 17 February 2023, the children are to live with Ms Claydon and spend time with Mr Burridge as set out in point 2 of the Order. It is common ground and the Tribunal finds that this represents 72 nights (19% of the year) with Mr Burridge and 293 nights (81% of the year) with Ms Claydon. The parties agree and the Tribunal finds that [Child 1] and [Child 2] have remained in the care of their mother since 17 February 2023. From the documents provided by Mr Burridge, it is clear that he has taken a number of steps to have the terms of the Court Order complied with since February 2023 but these have been unsuccessful. A further Order was made on 1 December 2023.
What is the care determination that should be made?
On the face of it, it would appear that from February 2023 Ms Claydon’s care percentage for [Child 1] and [Child 2] should remain 100% as they resided with her for 100% of the time. There are, however, provisions of the legislation that allow for the child support assessment to continue to be based on the care that a person should have, but does not. These legislative requirements are set out at section 51 of the Act. At the time of the potential care change (17 February 2023), the relevant parts of this provision read as follows:
51(1) This section applies if:
(a)the Registrar is required by section 49 or 50 to determine a responsible person's percentage of care for a child during a care period; and
(b)a care arrangement applies in relation to the child; and
(c)the Registrar is satisfied that the actual care of the child that the responsible person has had, or is likely to have, during the care period does not comply with the extent of care of the child that the person should have had, or is to have, under the care arrangement during that period (which may be nil); and
(d)a person who has reduced care of the child is taking reasonable action to ensure that the care arrangement is complied with.
If section 51 applies, an “interim care determination” may be made, which essentially assesses the child support on the basis of the care percentages as set out in the care agreement. This is what occurred in Mr Burridge’s case pursuant to the original decision made on 3 May 2023: the assessment was altered such that it was based on the percentages of care as set out in the Court Order, which meant that Mr Burridge’s percentage of care increased from 0% to 19% for the “interim period” 17 February 2023 to 15 February 2024. Section 53, however, then sets out the situation whereby section 51 may not apply (again, as at February 2023):
Section 51 does not apply in certain circumstances
53(1) Section 51 does not apply in relation to a responsible person in relation to whom a determination is to be or has been made under section 49 or 50 if:
...(c)the Registrar has revoked the determination under section 54F or 54H.
During the course of the 2023 year, questions were raised about the application of paragraph 53(1)(c); in particular, whether it meant that there were few situations whereby section 51 could actually apply and if so, whether this was the intention of the legislation. Child Support’s policy was changed and is reflected in the objections officer’s comments as set out at paragraph 4 of these Reasons. The issue was considered by the Federal Court in the matter of Child Support Registrar v CMU23 [2024] FCA 109 (CMU23), and a decision was made on 1 February 2024.
The Court found that ultimately paragraph 53(1)(c), if properly construed, meant that once existing percentage of care determinations are revoked under section 54F or 54H, an interim period under section 51 cannot apply. This means that an interim period will only apply in very limited circumstances, including where it is the first care percentage determination in relation to a responsible person’s care of a particular child (the start of the child support case). It is clear from the decision of the Federal Court in CMU23 that there was no lawful basis on which an interim care determination could be made in Mr Burridge’s situation, in February 2023.
Turning then to the legislation as it stands today, as a result of the Federal Court decision in CMU23, the Social Services Legislation Amendment (Child Support and Family Assistance Technical Amendments) Act 2024 (the amending Act) was enacted. This has repealed paragraph 53(1)(c) of the Act. The commencement date of the amending Act was 29 March 2024. In considering whether the amending Act may be applied in Mr Burridge’s case to provide for an interim care determination, in general the new provisions will only apply to care changes that occurred on or after its commencement on 29 March 2024:
11 Application of amendments—child support
The amendments of the Child Support Act made by this Schedule apply in relation to a determination that is to be or has been made under section 49 or 50 of that Act on or after the commencement of this item if the change of care day for the responsible person, and the child, concerned occurs on or after that commencement.
There are, however, provisions in the amending Act that relate to assessments made prior to its commencement. On this point, the Explanatory Memorandum to the Bill stated, in part:
The Bill will also protect the validity of certain interim period determinations that were made between the commencement of the Protecting Children Act amendments[1] and the commencement of the amendments to be made by this Bill. This is intended to address the risk to past interim period determinations arising from CMU23. This aspect of the Bill minimises the impact on parents and caregivers of children who may otherwise be disadvantaged by having past decisions disrupted.
[1] These were amendments made in 2018
The relevant provision is at section 13 of the amending Act, as follows:
13 Validation of percentage of care determinations—child support
(1) If:
(a)a determination that was made, or purportedly made, in relation to a responsible person for a child in the relevant period under section 49 or 50 of the Child Support Act for the purposes of section 51 of that Act would, apart from this item, be wholly or partly invalid or ineffective only because of the operation of paragraph 53(1)(c) of that Act, as in force in that period; and
(b) the change of care day for the responsible person for the child occurred in the relevant period;
then the determination, and any other decision covered by subitem (2), is as valid and effective, and is taken always to have been as valid and effective, as it would have been had section 53 of the Child Support Act, as amended by this Act, been in force during that period.
The Tribunal interprets this section as providing that, if an interim care determination was in place prior to the change in legislation in March 2024, then it could remain in place and is still preserved even though it was affected by error. That is not, however, the situation here. As the objections officer made the decision on 27 February 2024 that an interim care determination did not apply, there was no such determination in place prior to the change in the legislation and the Tribunal does not have the power to now make such a determination under section 13 of the amending Act.
This means that the substantive decision that an interim care determination could not be made is correct and must be affirmed. That decision is the subject of Mr Burridge’s application to the Tribunal 2024/SC027808. Mr Burridge has, however, made a second application, this being application 2024/SC027960 and this relates to the date of effect of the objections officer’s decision. The objections officer determined that the interim care provisions had been incorrectly applied. They also concluded that their determination was to be applied to the child support assessment from 17 February 2023. The latter decision was in accordance with section 87AA of the Collection Act, which provides:
Date of effect of objections relating to care percentage decisions that are allowed
87AA(1) If:
(a) a person lodges, under section 80A, an objection to a care percentage decision; and
(b) the objection is lodged more than 28 days ... after notice of the care percentage decision was served; and
(c) the Registrar decides (the review decision), under section 87, to allow the objection in a way that has the effect of varying the determination to which the care percentage decision relates, or substituting a new determination;
the date of effect of the review decision is the day on which the person lodged the objection.
(2) If the Registrar is satisfied that there are special circumstances that prevented the person from lodging the objection within the period referred to in paragraph (1)(b), the Registrar may determine that subsection (1) applies as if:
.....the reference to 28 days in that paragraph were a reference to such longer period as the Registrar determines to be appropriate.
On this point, Mr Burridge told the Tribunal that he felt like he had been penalised due to errors of Child Support. He had received the original decision and was aware that either party had 28 days to object to it. As there was no objection lodged within 28 days he was satisfied that the rate of child support that he was now assessed to pay was in fact correct and made financial decisions based on this stated liability. The decision of the objections officer, made some 9 months after the original decision, had the effect of increasing his liability by more than $1,300 and this has caused him financial hardship.
The Tribunal asked Ms Claydon whether she had received the original decision notice in a timely manner and she responded she had; she had accessed it through the Child Support portal. The Tribunal asked whether she had noticed that she had a period of 28 days in which to object and Ms Claydon said she could not recall, as it was some time ago. Her central point, however, was that she had continued to repeatedly contact Child Support and express her dissatisfaction with the decision that had been made. She had no concrete proof, but she was sure that she would have contacted within the 28-day period set out in the notice of 3 May 2023.
The Tribunal notes that from February 2023 on there are a number of contacts that were made by Ms Claydon to Child Support. The point she makes in these contacts is that Mr Burridge does not have care of the children as set out in the Court Order. It appears that on a number of occasions these contacts are treated as notification of a new care change, as also appears to be the case in the recorded contact of 28 July 2023. It was not until 16 August 2023 that Ms Claydon was informed by a Child Support officer that as there had not been “a new care event” she needed to lodge an objection to the existing decision. The Tribunal was satisfied that Ms Claydon had made all efforts to express that she disagreed with the original decision of 3 May 2023 in a timely manner and this included a contact made within 28 days of receiving the notice of 3 May 2023. The failure of Child Support officers to record Ms Claydon’s contacts as a formal objection to the original decision constitutes special circumstances that warrants application of the discretion set out in subsection 87AA(2). This means that the decision made by the objections officer that an interim care determination does not apply takes effect from the date that the original decision took effect: 17 February 2023.
DECISION
The decision under review is affirmed.
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