Nash and Nash (Child support)

[2019] AATA 1735

Nash and Nash (Child support) [2019] AATA 1735 (22 May 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/HC016103

APPLICANT:  Mr Nash

OTHER PARTIES:  Child Support Registrar

Ms Nash

TRIBUNAL:Member M Baulch

DECISION DATE:  22 May 2019

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 - court orders not complied with - reasonable action taken - interim period applied – whether special circumstances exist - decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed 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. This application for review is about the percentages of care that have been applied to a child support assessment for Mr Nash and Ms Nash by the Department of Human Services – Child Support (the Department).

2. Mr Nash and Ms Nash are the separated parents of two children, including [Child 1].  Since 3 June 2015 the Department has made assessments of child support applying to Mr Nash and Ms Nash which recorded [Child 1] as being in Mr Nash’s care 18% of the time and Ms Nash’s care 82% of the time.

3. On 20 October 2018, Mr Nash contacted the Department to advise that care arrangements for [Child 1] had changed from 17 October 2018, such that [Child 1] was in Mr Nash’s sole care.  That information was considered by a Departmental employee who decided, on 21 November 2018, that the assessment of child support should be amended, so that Mr Nash was recorded as having 100% care of [Child 1] and Ms Nash recorded as having 0% care.

4. Ms Nash objected to that decision and, on 21 February 2019, that objection was partly allowed.  The objections officer decided that from 17 October 2018 to 16 April 2019 Mr Nash should be recorded as having 18% care of [Child 1] and Ms Nash as having 82% care.  From 17 April 2019 the care percentages recorded Mr Nash as having 100% care and Ms Nash as having 0% care (the decision under review). 

5. A hearing into the application for review was held by the tribunal on 22 May 2019.  Mr Nash discussed the application for review in person, while Ms Nash participated in the hearing by telephone.  Both gave evidence 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 the Department pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 which were labelled folios 1 to 96, copies of which Mr Nash and Ms Nash both confirmed they had received prior to the tribunal hearing.  Also before the tribunal were additional documents lodged by Ms Nash before the hearing, labelled folios B1 to B21.

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 in the child support assessment that applies to Mr Nash and Ms Nash in respect of [Child 1]?

CONSIDERATION

1. The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable by one parent to the other.  It uses a statutory formula which contains variables such as the parents’ adjusted taxable incomes, the number of children and their percentages of care. 

2. 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 the children during a care period.  Since 3 June 2015  the pattern of care that has applied to the child support assessment has recorded Mr Nash as having 18% care of [Child 1] and Ms Nash as having 82% care.  These percentages of care align with a Family Court order dated [in] December 2015.

3. There is no dispute that, from 17 October 2018, [Child 1] has been living with Mr Nash and has not spent time with Ms Nash.

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).

5. 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 court order dated [in] December 2015 constitutes a care arrangement.  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.

6. 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 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; or

   ·       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] FCA 39, the Federal Court 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 4.40 – can be found at >

   Ms Nash has provided the Department with a letter from her lawyer that states that Ms Nash sought legal advice on approximately eight occasions between 18 October 2018 and 5 December 2018 with respect of [Child 1’s] living arrangements, and a letter from the lawyer was sent to Mr Nash on 6 December 2018.  Having considered this evidence, I was satisfied that Ms Nash took reasonable action to have the court order dated [in] December 2015 complied with as it applied to [Child 1’s] care.

7. 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 (or court order) 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 orders – 18% for Mr Nash and 82% for Ms Nash (pursuant to subsection 51(3) of the Act); and

   ·       care that is actually occurring – 100% for Mr Nash and 0% for Ms Nash (pursuant to paragraph 51(4) of the Act).

8. 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.

   Mr Nash made no submissions that special circumstances apply in this case, nor did I identify any evidence such that the discretion provided for in subsection 51(5) of the Act not to make an interim care determination should be exercised. 

9. Section 53A of the Act provides a table for working out the end date for the interim period.  The end date is dependent on whether the parent with increased care, in this case that is Mr Nash, themselves takes reasonable action to participate in family dispute resolution.  The Guide describes reasonable action to participate in family dispute resolution as follows:

   Reasonable action means initiating or participating in family dispute resolution with an accredited family dispute resolution practitioner within a reasonable period of the change of care day. 

   Mr Nash’s evidence was that he responded to the lawyer’s letter dated 6 December 2018, although this is disputed by Ms Nash, but took no other action to resolve the disputed arrangements about [Child 1’s] care.

10. I found that Mr Nash has not taken reasonable action to participate in family dispute resolution.  Therefore, the interim care determination made under section 51 of the Act applies for 26 weeks; that is until 16 April 2019.

11. Section 54C of the Act sets out that the court order determined percentage of care applies for the interim period.  I therefore found that the care percentages determination that should apply to the child support assessment are as follows:

    ·       from 17 October 2018 to 16 April 2019 Mr Nash should be recorded as having 18% care of [Child 1] and Ms Nash as having 82% care; and 

    ·       from 17 April 2019 the care percentages should be recorded as Mr Nash having 100% care and Ms Nash as having 0% care.

12. Mr Nash is concerned that he has a liability to pay child support for [Child 1] for a period when [Child 1] was actually in his care.  My observation is that court orders are important and they should be followed unless there are compelling reasons, such as those described as special circumstances, not to follow them.  The child support law is drafted in such a way to encourage parents to comply with court orders and/or engage in family dispute resolution when those arrangements break down. 

13. So even though [Child 1] was actually in Mr Nash’s care, court orders provided otherwise and Ms Nash took action to have those court orders, as they applied to [Child 1], complied with.  In those circumstances, Ms Nash is entitled to have the child support liability for [Child 1] determined on what should have occurred pursuant to the orders, and not what actually occurred, for the duration of the interim period of 26 weeks.

14. Having arrived at the same decision as that of the objections officer, I consequently affirmed the decision under review.

DECISION

The decision under review is affirmed.