Nash and Nash (Child support)

This decision concerned a dispute between Ms Nash and Mr Nash regarding child support assessments for their child, [Child 1]. The matter came before the court for review of a decision made by an objections officer concerning the percentage of care attributed to each parent. The core of the dispute revolved around a change in the child's living arrangements and whether the existing court orders regarding care were being complied with.

The court was required to determine whether an interim care determination could be made under section 51 of the Child Support (Registration and Collection) Act 1988. This involved assessing whether Ms Nash had taken "reasonable action" to ensure compliance with the existing court orders, given that the child's care arrangements had deviated from those orders. The court also needed to consider whether "special circumstances" existed that would warrant a departure from the standard interim determination process. Finally, the court had to determine the appropriate end date for any interim period and the resulting care percentages to be applied for child support assessment purposes.

The court applied section 51 of the Act, which permits an interim determination when a care arrangement is not being complied with and the parent with reduced care has taken reasonable action. While not bound by government policy, the court considered the Child Support Guide's definition of reasonable action, which includes seeking legal advice and notifying the other party. The court found that Ms Nash had taken reasonable action by seeking legal advice on multiple occasions and having her lawyer communicate with Mr Nash. Consequently, the court determined two percentages of care: one reflecting the court orders (18% for Mr Nash, 82% for Ms Nash) and one reflecting the actual care occurring (100% for Mr Nash, 0% for Ms Nash). The court found no special circumstances to deviate from making an interim determination. The court further found that Mr Nash had not taken reasonable action to participate in family dispute resolution, meaning the interim period would last for 26 weeks, until 16 April 2019.

The court ordered that for the interim period from 17 October 2018 to 16 April 2019, Mr Nash would be recorded as having 18% care and Ms Nash 82% care. From 17 April 2019 onwards, the care percentages would revert to Mr Nash having 100% care and Ms Nash 0%. The court affirmed the decision under review, emphasising the importance of complying with court orders and the legislative intent to encourage such compliance.