Linden and Fey (Child support)

[2022] AATA 349

Linden and Fey (Child support) [2022] AATA 349 (24 January 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC022318

APPLICANT:  Mr Linden

OTHER PARTIES:  Child Support Registrar

Ms Fey

TRIBUNAL:Member M Baulch

DECISION DATE:  24 January 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 – no interim period applied – existing percentage of care determinations revoked and new determinations made – 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. 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 Linden and Ms Fey are the separated parents of [a child].  Since 4 June 2008, 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 Linden had 32% care of [the child] and Ms Fey had 68% care.

3. On 21 June 2021, Ms Fey advised Child Support there had been a change to the care arrangements for [the child], such that she had 100% care of [the child] since 15 November 2019.  That information was considered by a Child Support employee, who decided on 6 July 2021 that the care percentages applying to the child support assessment for [the child] should record Mr Linden having 0% care, with effect from 15 November 2019, and Ms Fey as having 100% care, with effect from 21 July 2021 (the decision under review).

4. Mr Linden objected to that decision and, on 10 September 2021, that objection was disallowed.  Mr Linden 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 24 January 2022. Mr Linden and Ms Fey 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. The tribunal had before it relevant documents provided to it by Child Support pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (278 pages), copies of which both parties confirmed they had received prior to the tribunal hearing. 

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, from 15 November 2019, be for [the child] in the child support assessment that applies to Mr Linden and Ms Fey?

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 14 December 2012 the pattern of care that has applied to the child support assessment recorded Mr Linden as having 32% care of [the child] and Ms Fey as having 68% care. 

2. It is undisputed by either parent that Mr Linden ceased having care of [the child] from 15 November 2019.

3. 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 consent orders made in 2012 constitute a care arrangement in respect of [the child].  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.

4. 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 court order, is not being complied with and the parent with reduced care takes “reasonable action” to have the court order 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 4.60 – can be found at >

   In this instance, Mr Linden sought legal advice and, on 16 November 2019, his lawyers wrote to Ms Fey about [the child]’s care arrangements. On 25 November 2019, Mr Linden obtained a certificate for the purposes of section 601 of the Family Law Act 1975 on the basis that Ms Fey had refused to attend family dispute resolution.  On 26 November 2019, Mr Linden filed a contravention application with the Family Law Court and, although that application was later withdrawn, he participated in legal proceedings until new orders relating to [the child]’s care were made on 26 May 2021.

5. Having considered the evidence, I was satisfied that Mr Linden took reasonable action to have the court orders from 2012 complied with.

6. As a consequence, subsection 51(2) of the Act requires that two percentages of care be determined – one being the care that should have occurred under the care arrangement and the other being the care actually taking place.  In this instance, I concluded that those percentages of care would be:

   ·      Care according to the court order – 32% for Mr Linden and 68% for Ms Fey (pursuant to subsection 51(3) of the Act); and

   ·      Care that is actually occurring – 0% for Mr Linden and 100% for Ms Fey (pursuant to subsection 51(4) of the Act).

7. Subsection 51(5) of the Act provides that, if special circumstances exist in relation to the child, a single percentage of care – rather than two percentages of care – may be determined based upon the actual care taking place.  The meaning of special circumstances is not defined in the Act, but is described in the Guide, which states:

   Special circumstances may include circumstances that relate to the child directly as well as circumstances that relate to another individual, such as the person with increased care, to the extent that those circumstances also relate to the child. This discretion is only to be exercised in unusual cases, for example, where there is evidence of violence or other inappropriate behaviour by the person who has reduced care which led to the change in care. This recognises that if a person's own unreasonable or inappropriate actions are a significant cause for the care arrangement not being complied with, the person should not benefit from an interim period, even if they are seeking the return of the child.

   The Registrar will consider the individual circumstances that led to the change in care to determine whether the circumstances are a significant cause of the change in care, and whether there was a substantial risk to the physical, emotional or psychological well-being of the child if the care arrangement had continued to be followed. 

8. In this instance, the evidence shows that, on 15 November 2019, [the child] was resistant to the care arrangements continuing in accordance with the 2012 orders, and she threatened self-harm if care with Mr Linden was to continue.  [The child] was seen by her GP on 17 November 2019, who prepared a mental health place and noted [the child] reporting feeling depressed.  [The child] was referred for psychological treatment.  The evidence suggest that [the child] received psychological support for most of 2020.  New court orders were made on 26 May 2021 and stated that [the child] is to spend time with Mr Linden in accordance with [the child]’s wishes.

9. While there is no evidence to suggest that any unreasonable or inappropriate actions by Mr Linden’s contributed to [the child]’s mental health issues, I was satisfied that if the previous care arranges were continued, that there would be a substantial risk to [the child]’s physical, emotional or psychological well-being if that care were continued.

10. I was satisfied that special circumstances are present such that the discretion provided for in subsection 51(5) of the Act not to make an interim care determination should be exercised in this case. 

11. Therefore, an interim determination pursuant to section 51 of the Act will not be made, and the care percentages are to be determined on the actual care taking place.

12. Subsection 54F of the Act provides that an existing care percentage decision 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. 

13. 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 the pattern of care that applied from 19 November 2019 would result in a change to the cost percentages used for [the child] in the child support assessment.  Therefore, the existing care determinations that have applied since 14 December 2012 must be revoked.

1. Subsection 54F(3) of the Act prescribes when a care percentage revocation takes effect.  If Child Support is advised 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 child] changed on 15 November 2019 and Ms Fey advised Child Support of this on 21 June 2021, which is more than 28 days later.  As Mr Linden had reduced care, his care percentage determination is revoked from the day before the care changed; that is, from 14 November 2019.  As Ms Fey had increased care, her care percentage is revoked from the day before the day Child Support was notified of the change in care; that is, from 20 June 2021.

3. As I have revoked the existing care percentage determinations that apply in respect of [the child], I must make new care percentage determinations that reflect the pattern of care from 15 November 2019.  Accordingly, I found that:

   ·       Pursuant to section 49 of the Act, Mr Linden’s percentage of care for [the child] is 0%.

   ·       Pursuant to section 50 of the Act, Ms Fey’s percentage of care for [the child] is 100%.

   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 15 November 2019 for Mr Linden and from 21 June 2021 for Ms Fey.

4. I have arrived at a decision that is identical to that of Child Support and therefore, for these reasons, I decided to affirm the decision under review.

DECISION

The decision under review is affirmed.