Sealy and Lewis (Child support)

The Administrative Appeals Tribunal (AATA) considered a dispute between Ms Sealy and Mr Lewis concerning the percentage of care for their 11-year-old son. The case arose after Ms Sealy applied to Services Australia (Child Support Agency) for a child support assessment, claiming 100% care of the child from 18 March 2020, which led to an initial determination by the agency. Mr Lewis objected to this decision, asserting that Ms Sealy had been withholding care since 13 February 2020 and that he was taking steps to restore his care. An objections officer subsequently set aside the initial decision and made an interim determination based on the court-ordered care percentages. Ms Sealy then sought a review of this decision by the AATA.

The Tribunal was required to determine the care arrangements for the child during the relevant period, whether new percentage of care determinations should be made and from what date, and whether an interim care determination should be made and for what duration. Central to these questions was the interpretation and application of sections 49, 50, 51, and 54A of the Child Support (Assessment) Act 1989 (the Assessment Act), which govern the determination of care percentages and the making of interim determinations when care arrangements, such as court orders, are not being complied with. The Tribunal also had to consider the meaning of "reasonable action" taken by a parent with reduced care to ensure compliance with a care arrangement, as well as the concept of "special circumstances" that might warrant a single percentage of care determination.

The Tribunal found that the Federal Circuit Court orders of 30 November 2016 constituted a "care arrangement" under the Assessment Act, stipulating that Mr Lewis would have care for six nights a fortnight during school terms and 50% care during school holidays, equating to 56% care for Ms Sealy and 44% for Mr Lewis. The Tribunal was satisfied that Mr Lewis had taken "reasonable action" to ensure compliance with these orders, citing his numerous communications with Ms Sealy, his solicitor's correspondence, his engagement with mental health services for the child, and his attempts to arrange mediation. Consequently, the Tribunal determined that section 51 of the Assessment Act applied, allowing for the determination of two percentages of care. For Ms Sealy, the first percentage was 56% (reflecting the court orders) and the second was 100% (reflecting the actual care). For Mr Lewis, the first percentage was 44% and the second was 0%. The Tribunal did not find "special circumstances" to warrant a single percentage of care determination, despite Ms Sealy's claims that the child was refusing contact with Mr Lewis.

The Tribunal affirmed the decision under review.