Feacham and Belaby (Child support)

[2022] AATA 2367

Feacham and Belaby (Child support) [2022] AATA 2367 (22 June 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/AC023685

APPLICANT:  Mr Feacham

OTHER PARTIES:  Child Support Registrar

Ms Belaby

TRIBUNAL:Member M Baulch

DECISION DATE:  22 June 2022

DECISION:

The decision under review is set aside, and in substitution, the tribunal decided that the care percentages applying in the child support assessment for [Child 1] and [Child 2] should record:

• Mr Feacham as having 10% care of [Child 1] and 13% care of [Child 2] with effect from 28 May 2021; and

• Ms Belaby as having 90% care of [Child 1] and 87% care of [Child 2] with effect from 11 November 2021.

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 – 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 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. 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 Feacham and Ms Belaby are the separated parents of three children.  Since 27 August 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 Feacham had 16% care of [Child 1] and [Child 2], and Ms Belaby had 84% care.

3. On 11 November 2021, Ms Belaby advised Child Support there had been a change to the care arrangements for the children, such that she had 91% care of [Child 1] and 89% care of [Child 2] since 28 May 2021.  That information was considered by a Child Support employee, who decided on 13 January 2021 that there should be no change to the care percentages for the children applying in the child support assessment.

4. Ms Belaby objected to that decision and, on 17 March 2022, that objection was allowed.  The objections officer decided that the care percentages applying to the child support assessment for [Child 1] and [Child 2] should record Mr Feacham having 9% care, with effect from 28 May 2021, and Ms Belaby as having 91% care, with effect from 11 November 2021 (the decision under review).  Mr Feacham has now applied to this tribunal seeking an independent review of Child Support’s decision.

5. A hearing into the application for review was held by the tribunal on 22 June 2022.  Mr Feacham and Ms Belaby both participated in the hearing by telephone, and both 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 documents provided to it by Child Support pursuant to sections 37 and 38AA of the Administrative Appeals Tribunal Act 1975 (560 pages), copies of the first 542 pages of which both parties confirmed they had received prior to the tribunal hearing.  The tribunal also had regard to additional material lodged with the tribunal by Ms Belaby, labelled folios B1 to B10.

ISSUES

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

2. The issue which arises in this case is what should the care percentages be for [Child 1] and [Child 2] in the child support assessment that applies to Mr Feacham and Ms Belaby?

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 5 January 2021 the percentages of care that have applied in the child support assessment had recorded Mr Feacham as having 16% care of [Child 1] and [Child 2] and Ms Belaby as having 84% care.  This was based upon Mr Feacham having 62 nights of care for [Child 1] and [Child 2] in a calendar year.

2. It is undisputed that care was arranged, and did not occur on the following dates:

   ·      Two nights from 28 May 2021 to 29 May 2021;

   ·      Six nights from 25 June 2021 to 30 June 2021; and

   ·      Three nights from 23 July 2021 to 25 July 2021.

3. Mr Feacham claimed that care was arranged for 3 September 2021 to 5 September 2021 (three nights), but this was disputed by Ms Belaby.  However, I noted the parenting plan provides from Mr Feacham to have care for Father’s Day and this care event did not proceed.  Care was arranged for 24 September 2021 to 2 October 2021 (nine nights), but proceeded for [Child 2] only and not for [Child 1].

4. Usually, the Registrar will determine a pattern of care based upon the extent of the actual care that each parent has of their child.  However, this may not apply if a care arrangement applies, and that care arrangement is not being complied with (see section 51 of the Act).  A care arrangement is a formal arrangement about the care of a child and includes a written agreement, court order or parenting plan.[1]  I was satisfied that the parenting plan between Mr Feacham and Ms Belaby, made in 2015, constitutes a care arrangement in respect of [Child 1] and [Child 2].  I therefore considered if section 51 of the Act should be applied in this case.

   [1] See section 5 of the Act and section 3 of the A New Tax System (Family Assistance) Act 1999.

5. Section 51 of the Act says that a care determination may be made (known as an “interim determination”) if a care arrangement, such as a parenting plan, is not being complied with and the parent with reduced care takes “reasonable action” to have the parenting plan complied with.  What constitutes reasonable action is not defined in the Act, but government policy in this regard is set out in the Child Support Guide (the Guide), which states, at 2.2.4, that reasonable action could include:[2]

   ·      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 Relationship Centre (FRC) 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 a court to have an order made or enforced.

   ·      Attending a hearing at court to seek an order to be made or enforced.

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

   I am not bound by policy as set out in the Guide.  However, in Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, Brennan, J held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. In this instance, I accepted the policy is unobjectionable and, in the interests of consistency in decision making under the Act, considered that this policy should be applied.

   [2] Department of Social Services, Guides to Social Policy Law, Child Support Guide, version 4.63 – can be found at >

   In this case, care arranged for May 2021 did not proceed because Mr Feacham did not travel to Queensland to have care of the children.  Care in July was not possible due to COVID-19 disruptions.  In relation to what action he had taken to attempt to have the other care events proceed, Mr Feacham stated that he communicated with Ms Belaby.

6. One care event was missed due to Mr Feacham’s own actions and another due to the COVID-19 disruptions.  The only action Mr Feacham took in relation to the other care events that were missed was to communicate with Ms Belaby.  Having considered the evidence, I was not persuaded that Mr Feacham took reasonable action to have the parenting plan complied with. 

7. This means that the care percentages are determined on the actual care that occurred.  Section 54A of the Act provides that the extent of care that a person is to have may be worked out on the number of nights that a child is likely to be in that person’s care in a care period.

8. Care is generally calculated over a “care period”, which is a period that the Registrar considers to be appropriate having regard to all the circumstances of the matter (section 50 of the Act).  Child Support’s policy in this regard, as set out in Chapter 2.2.1 of the Guide, is that a “care period” is generally a 12-month period from the day on which the actual care for a child changed.  I accepted the policy is unobjectionable and, in the interests of consistency in decision making under the Act, considered that this policy should be applied.

9. It is undisputed that between May 2021 and early October 2021, Mr Feacham had missed 14 nights of care for [Child 2] and 23 nights of care for [Child 1].  If the starting point was that Mr Feacham had 62 nights of care for the children each year, I was satisfied that from 28 May 2021, there was a pattern of care such that Mr Feacham was likely to have 39 nights of care for [Child 1] (62 minus 23) and 48 nights of care for [Child 2] (62 minus 14).  Applying the rounding rules set out in section 54D of the Act, I was satisfied that from 28 May 2021, there was a pattern of care such that Mr Feacham had 10% care of [Child 1] and 13% care of [Child 2], and Ms Belaby had 90% care and 87% care respectively.

10. Subsection 54F of the Act provides that an existing care percentage determination must be revoked if Child Support is notified, or becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded and that change would alter the cost percentage used for the parent in the administrative assessment. 

11. Section 55C of the Act contains a table that is used to work out a person’s cost percentage:

Cost percentages
Item	Column 1 Percentage of care	Column 2 Cost percentage
1	0 to less than 14%	Nil
2	14% to less than 35%	24%
3	35% to less than 48%	25% plus 2% for each percentage point over 35%
4	48% to 52%	50%
5	more than 52% to 65%	51% plus 2% for each percentage point over 53%
6	more than 65% to 86%	76%
7	more than 86% to 100%	100%

I was satisfied that Mr Feacham having 10% care of [Child 1] and 13% care of [Child 2] and Ms Belaby having 90% care of [Child 1] and 87% care of [Child 2], will result in a change to the cost percentages used in the child support assessment.  Therefore, the care percentage determinations that have applied since 5 January 2021 must be revoked.

1. Subsection 54F(3) of the Act prescribes when a care percentage revocation takes effect.  If Child Support is advised, or otherwise becomes aware, of the change in the care arrangements within 28 days of that change occurring, the revocation takes effect on the day before the change in care.  However, if notification occurs more than 28 days after the change in care arrangements occurs, the revocation of the care determinations takes effect for each parent as follows:

   ·      If the parent’s care of the child has increased – the day before the Registrar is notified, or otherwise becomes aware, of the change in care; or

   ·      If the parent’s care of the child has reduced – the day before the change of care occurred.

2. The care occurring for the children changed on 28 May 2021 and Ms Belaby advised Child Support of this on 11 November 2021, which is more than 28 days later.  As Mr Feacham had reduced care, his care percentage determination is revoked from the day before the day the care changed; that is from 27 May 2021.  As Ms Belaby had increased care, her care percentage determination is revoked from the day before the day child support was advised of the change in care; that is from 10 November 2021. 

3. As I have revoked the existing care percentage determinations that apply in respect of the children, I must make new care percentage determinations that reflect the pattern of care from 28 May 2021.  Accordingly, I determined that:

   ·       Pursuant to section 50 of the Act, Mr Feacham’s percentage of care for [Child 1] is 10% and for [Child 2] is 13%.

   ·       Pursuant to section 50 of the Act, Ms Belaby’s percentage of care for [Child 1] is 90% and for [Child 2] is 87%.

   According to section 54B of the Act, the new care determinations apply from the day after the previous care determinations were revoked.  That will be from 28 May 2021 for Mr Feacham and from 11 November 2021 for Ms Belaby.

4. My decision is different to that made by Child Support on 17 March 2022, although it will make no difference to the amount of child support Mr Feacham will be required to pay because the cost percentage for both children will still be nil.  Nevertheless, I therefore and for these reasons, set aside the decision under review and substituted my own decision.

DECISION

The decision under review is set aside, and in substitution, the tribunal decided that the care percentages applying in the child support assessment for [Child 1] and [Child 2] should record:

• Mr Feacham as having 10% care of [Child 1] and 13% care of [Child 2] with effect from 28 May 2021; and

• Ms Belaby as having 90% care of [Child 1] and 87% care of [Child 2] with effect from 11 November 2021.