Napier and Trollope (Child support)

[2023] AATA 423

Napier and Trollope (Child support) [2023] AATA 423 (3 February 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/MC023748

APPLICANT:  Mr Napier

OTHER PARTIES:  Child Support Registrar

Ms Trollope

TRIBUNAL:Senior Member S De Bono

DECISION DATE:  3 February 2023

DECISION:

The decision under review is affirmed.

(This means the application for review is unsuccessful.)

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – 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 Napier and Ms Trollope are the separated parents of [Child 1] and [Child 2] (the children). On 20 July 2015 Ms Trollope applied to register a child support assessment with the Child Support Agency (the Agency) which was accepted on 8 August 2015. Ms Trollope was registered as having 100% care of the children. Mr Napier is the parent liable to pay child support. Ms Trollope opted in for child support collection from 27 August 2015.

2. On 30 October 2021 Mr Napier lodged an objection to the decision of the Agency to accept the registration of child support and determine that Ms Trollope had 100% care of the children. On 12 January 2022 an objections officer disallowed Mr Napier’s objection.

3. On 26 April 2022 Mr Napier applied to the Administrative Appeals Tribunal (the tribunal) for an independent review of this decision. On 3 February 2023 Mr Napier attended a hearing in person and gave sworn evidence. Ms Trollope attended the hearing by telephone and gave evidence under affirmation. The tribunal had before it a bundle of documents: the ‘Statement and Documents’ provided by the Agency under subsection 37(1) of the Administrative Appeals Tribunal Act 1975 (pages 1–429) and supplementary documents provided under section 38AA (pages 430–488). The tribunal refers to these papers collectively as the hearing papers. Ms Trollope also provided a submission prior to the hearing which was exchanged with both parties (B1–B4). Relevant aspects of the material and evidence will be referred to in the tribunal’s consideration of the issues to be decided.

ISSUE

1. The issue which arises in this case is:

   ·      What is the care percentage applicable to each parent from the date of registration of the child support case?

LAW AND 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) Act 1988 (the Registration and Collection Act). Also relevant is the Child Support Guide (the Guide) which provides policy and guidelines for the application of the relevant legislation in order to promote consistency and transparency in decision-making. While the tribunal is not bound by these guidelines it will follow them unless there is a cogent reason to do otherwise as found in Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[1]

   [1] [1979] AATA 179.

2. The Guide at 1.1.1 provides a background to the establishment of the child support scheme. The scheme was established in 1988 to assist separated parents to take responsibility for the financial support of their children. The scheme involves the assessment of child support in accordance with a formula as well as the collection and enforcement of child support assessments.

3. Section 3 of the Act provides that parents have a primary duty to maintain their child. Subsection 4(1) of the Act provides that the principal object of the Act is to ensure children receive a proper level of financial support from their parents. Subsection 4(2) of the Act explains the objects of the Act:

   (2)  Particular objects of this Act include ensuring:

   (a)that the level of financial support to be provided by parents for their children is determined according to their capacity to provide financial support and, in particular, that parents with a like capacity to provide financial support for their children should provide like amounts of financial support; and

   (b) that the level of financial support to be provided by parents for their children should be determined in accordance with the costs of the children; and

   (c)that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings; and

   (d) that children share in changes in the standard of living of both their parents, whether or not they are living with both or either of them; and

   (e) that Australia is in a position to give effect to its obligations under international agreements or arrangements relating to maintenance obligations arising from family relationship, parentage or marriage.

4. In accordance with section 25 of the Act a parent may apply to the Registrar for an administrative assessment of child support. Ms Trollope applied to the Agency for an administrative assessment by lodging an application. Section 30 of the Act provides that if the Registrar is satisfied that an application has been properly made for an administrative assessment of child support the Registrar must accept the application.

5. Section 29 of the Act provides how a decision is to be made in determining whether an application for an administrative assessment of child support complies with sections 24, 25 and 25A of the Act. The Child Support Registrar may act on the basis of the application and the accompanying documents and ‘is not required to conduct any inquiries or investigations into the matter’.  

6. Section 31 of the Act provides that there is a requirement by the Registrar once an application is accepted to assess both parents in respect of the costs of the child and child support is payable by the liable parent from the day the application is made. Once an application is accepted the Registrar must give notice of the successful application to the parent liable to pay child support (subsection 34(1) of the Act). Subsection 34(2) of the Act provides:

   (2)The notice must include, or be accompanied by, a statement to the effect that:

   (a)   an application may be made to a court having jurisdiction under this Act for a declaration under section 107 that a person should not be assessed in respect of the costs of the child because the person is not a parent of the child; and

   (b)   in any case:

   (i)the applicant or a parent who is to be assessed in respect of the costs of the child, may, subject to the Registration and Collection Act, object to the decision (the original decision ) (other than because a person is not a parent of the child); and

   (ii)the applicant or a parent who is to be assessed in respect of the costs of the child, if aggrieved by a later decision on an objection in relation to the original decision (no matter who lodges the objection), may, subject to that Act and the AAT Act, apply to the AAT for review of the later decision.

What is the care percentage applicable to each parent from the date of registration of the child support case?

1. Mr Napier did not disagree that the initial care determination from the date of registration was correct. He agreed Ms Trollope had 100% care of the children from the date of registration. However, he did not agree that the care determination of 100% to Ms Trollope should remain in place because he had tried to increase his care of the children but was prevented from doing so.

2. Mr Napier said he attempted to lodge an objection to the Agency in January 2016 and also in 2019 but said the Agency did not act upon these objections.

3. Ms Trollope said she did not prevent Mr Napier from seeing the children, but there were times when he was unable to be contacted. She said he would call her demanding to see the children at short notice when the children were not available. There were other times her solicitor attempted to contact Mr Napier and asked him to get in touch but Ms Trollope said Mr Napier did not respond to these requests. Ms Trollope said in December 2015 she contacted [Legal Agency 1] to establish a parenting plan but she said this was also unsuccessful.

4. Percentage of care determinations are made under section 49 and section 50 of the Act. Section 49 of the Act provides authority to make a determination in circumstances where a parent has no care of the children. Section 50 of the Act provides authority to make a determination of a percentage of care in situations where a person has a pattern of care. Where the Registrar is satisfied that a responsible person has had, or is likely to have, a pattern of care for the children during the relevant care period, the Registrar must determine that person’s percentage of care for the children during the care period. The initial care determination was made in accordance with section 49 of the Act.

5. The Act provides that the care percentage must be determined for a care period which is effectively defined as ‘such period … as the Registrar considers to be appropriate having regard to all of the circumstances’. Usually (but not necessarily) the care period will be a 12-month period starting from the date the care of the children changed and reflect the pattern of care that a person has had, or is likely to have, during the care period (2.2.1 of the Guide).

6. The pattern of care can be established either according to a care arrangement (such as court orders or a parenting plan) or the actual care that is taking place. At the commencement of the registration of the child support case there were no court orders in place.

7. The tribunal notes there has been a number of interim court orders and final orders in relation to issues that Mr Napier and Ms Trollope have brought before the courts but not before the date of registration of the child support case with the Agency. Mr Napier submitted that none of these interim or final orders prevented him from having care of the children. Mr Napier wanted the tribunal to note that the orders stipulate that the children live with their mother and spend time and communicate with him as agreed between the parties in writing. Mr Napier said this did not occur because Ms Trollope withheld care.

8. There was a final order made [in] June 2017 which gave Ms Trollope sole parental responsibility.[2] But this was revoked by the interim order of [October] 2017 which stipulated that Mr Napier could spend two hours a week with the children facilitated at [a named agency]. Ms Trollope said Mr Napier did not attend these sessions.

   [2] Pages 30–35 of the hearing papers.

9. On 19 June 2018 further interim orders were made which stipulated Mr Napier would commence having increased care which would eventually result in overnight care for Mr Napier on one night a week, from 22 September 2018. Ms Trollope said overnight care commenced on a later date.

10. [In] October 2019 final parenting orders were made by the Federal Circuit Court in which both parents have shared parental responsibilities. The children spend time and communicate with Mr Napier during school term in the first week of a fortnightly cycle from 9 am Saturday to 5 pm Sunday and in the second week of a fortnightly cycle from the conclusion of school on Wednesday to the beginning of school on Thursday. Other arrangements were stipulated for school holidays.

11. In summary, Mr Napier submitted the following:

    ·      He agreed that he had 0% care of the children from the date of registration of the child support case.

    ·      He notified the Agency that Ms Trollope was withholding care in early 2016 but the Agency did nothing about this.

    ·      The court orders did not prevent him from having care of the children and stipulated that the children shall spend time and communicate with him as agreed between both parents in writing.

    ·      He said Ms Trollope did not update the Agency in a timely manner when interim and final court orders increased his care of the children.

    ·      He would have had increased care in early 2016 if Ms Trollope had allowed this.

    ·      There have been subsequent care changes and he is now recorded as having 21% care of the children.

12. Ms Trollope in response to these submissions said that she never prevented Mr Napier from having care of the children, but wanted to make sure the housing Mr Napier was living in at the time was suitable and his housemate was someone she was happy for the children to be around. She attempted to resolve issues around care in her contact with [Legal Agency 1] in 2015 but the lawyer was unsuccessful in contacting Mr Napier to develop a parenting plan. She was fearful Mr Napier would remove the children from Australia and sought an injunction from the Federal Circuit Court [in] April 2016 to prevent this from occurring but she has not stopped Mr Napier from having contact with the children.

13. The tribunal accepts that Mr Napier wanted to have increased care of the children, but on the date of Ms Trollope’s application for child support the tribunal is satisfied that she had 100% care of the children and the Agency was correct to accept Ms Trollope’s application for registration in accordance with section 30 of the Act. The tribunal is satisfied that Mr Napier was notified of the Agency’s decision to accept Ms Trollope’s application for child support on 8 August 2015.

DECISION

The decision under review is affirmed.

(This means the application for review is unsuccessful.)