Sickler and Burdge (Child support)

[2021] AATA 4230

Sickler and Burdge (Child support) [2021] AATA 4230 (8 September 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/MC021987

APPLICANT:  Ms Sickler

OTHER PARTIES:  Child Support Registrar

Mr Burdge

TRIBUNAL:Member M Baulch

DECISION DATE:  8 September 2021

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 – no reasonable action taken – 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. Ms Sickler and Mr Burdge are the separated parents of [Child 1], who was born in March 2006.  Since 10 August 2009, Services Australia – Child Support (Child Support) has made administrative assessments of child support under which Mr Burdge was assessed as liable to pay child support to Ms Sickler.  From 26 April 2012, those assessments had been determined on the basis that Ms Sickler had 67% care of [Child 1] and Mr Burdge had 33% care.

3. On 14 April 2021, Mr Burdge advised Child Support that there had been a change to the care arrangements for [Child 1], such that he had 100% care of [Child 1] since 14 February 2021.  That information was considered by a Child Support employee who decided, on 22 April 2021, that the percentages of care should record Ms Sickler as having 0% care of [Child 1] and Mr Burdge as having 100% care.  These percentages had effect on the child support assessment from 14 February 2021 for Ms Sickler and from 14 April 2021 for Mr Burdge (the decision under review).

4. Ms Sickler objected to that decision and, on 21 July 2021, that objection was disallowed.  Ms Sickler 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 8 September 2021.  Ms Sickler discussed the application for review with the tribunal by telephone and gave sworn evidence during the hearing.  Ms Sickler was represented by [Representative A], who made submissions on Ms Sickler behalf.  Neither Mr Burdge nor a representative of the Child Support Registrar (the Registrar) participated in the hearing. 

6. The tribunal had before it relevant documents provided to it by Child Support pursuant to sections 37 and 38AA of the Administrative Appeals Tribunal Act 1975 (120 pages), material lodged by Ms Sickler (folios A1 to A75) and Mr Burdge (folios B1 to B2).

ISSUES

1. The statutory provisions relevant to this review application are found within the child support law, in particular the Act.

2. The issue which arises in this case is what should the care percentages be for [Child 1] in the child support assessments.

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 child during a care period. 

2. Since 26 April 2012, the percentages of care that have applied to the child support assessment recorded Ms Sickler as having 67% care of [Child 1] and Mr Burdge as having 33% care.  Those percentages of care reflect the pattern of care prescribed by a Family Court order dated [in] May 2012.  Ms Sickler’s evidence was that court order was followed until [Child 1] left her care on 14 February 2021.  It is undisputed that from 14 February 2021, until a later change of care occurring in August 2021, Ms Sickler had 0% care of [Child 1] and Mr Burdge had 100% care.

3. Usually, the Registrar will determine a pattern of care based on 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 Family Court order dated [in] May 2012 constitutes a care arrangement and 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:[2]

   [2] Department of Social Services, Guides to Social Policy Law, Child Support Guide, version 4.57 – can be found at align="left">Taking reasonable action to ensure compliance with care arrangement

   The person with reduced care must take reasonable action to ensure compliance with the care arrangement throughout the interim period in order to have the child support assessment continue to be based on the care arrangement for the interim period. If the person with reduced care ceases taking reasonable action, the interim period will end on the day the reasonable action ceased. Reasonable action could include:

   ·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, or

   ·notifying the police that the child has been taken without consent.

   This list is not exhaustive and other forms of action may be considered reasonable, according to the circumstances of both parties and the child.  

   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.

5. Ms Sickler’s evidence was that [Child 1] left her care after a dispute between them.  She said that she took many steps to try and resolve the matter and have [Child 1] return to her care.  [Representative A] submitted that Child Support did not advise Ms Sickler of what was required for her to be considered to have taken reasonable action to have the court order complied with.

6. Ms Sickler told me that she initially thought that [Child 1’s] stay with Mr Burdge was a temporary arrangement and was unaware that it would persist longer term until after Mr Burdge advised Child Support of the change in care and made his own application for a child support assessment.  Ms Sickler explained that neither Mr Burdge nor [Child 1] advised her that [Child 1] was not intending to return to her home.

7. Ms Sickler stated that she contacted [Child 1] by telephone and text in numerous attempts to resolve the issues in their relationship.  Communicating with [Child 1] was difficult, and he often refused to answer her calls.  When she reached out to Mr Burdge to help her maintain contact with [Child 1], he advised her that he could not force [Child 1] to talk to her.  Ms Sickler explained that she wanted to arrange for she and [Child 1] to attend counselling together, but [Child 1] refused.  Ms Sickler stated that she ultimately attended counselling alone on 18 February 2021, 25 February 2021, 6 April 2021, 21 April 2021, 30 April 2021, 1 May 2021, 20 May 2021, 25 May 2021, 16 June 2021, 13 July 2021 and 29 July 2021.

8. Ms Sickler explained that she and Mr Burdge had an amicable relationship, but she did not seek to engage with him about having [Child 1] returned to her care after he advised her that he could not force [Child 1] to talk to her.  She attempted to call him on a number of occasions, but he answered her calls only once, which was after she made her objection on 17 May 2021.  Text communication between them related to collecting [Child 1’s] clothing and school things, and they did not communicate about having care returned to the arrangements specified by the court order.

9. Ms Sickler advised me that in May 2021 she contacted the school and sought the school’s assistance to arrange a meeting between herself, Mr Burdge and [Child 1], but this was not successful.  She then sought legal advice and, as a consequence, she made arrangements in May 2021 for mediation to take place [in] June 2021.

10. Ultimately, the parties to the Family Court order dated [in] May 2012 are Ms Sickler and Mr Burdge.  [Child 1] was not a party to the court order.  In my view, to have taken reasonable action to ensure compliance with the court order, Ms Sickler needed to engage and negotiate with Mr Burdge about compliance with the court order, not her 15-year-old son.  On Ms Sickler’s own evidence, she did not seek to engage with Mr Burdge about [Child 1] returning to her care until she sought the assistance of the school to arrange a meeting between her, Mr Burdge and [Child 1] or until she arranged mediation; these efforts both being made during May 2021.

11. I was not persuaded that Ms Sickler took any action to negotiate with Mr Burdge in a genuine attempt to ensure compliance with the court order.  Ms Sickler did make attempts to arrange mediation, but not until May 2021.  Having considered the matter, I was not persuaded that between the day care changed (14 February 2021) and May 2021, Ms Sickler can be regarded as having taken reasonable action to ensure compliance with the court order dated [in] May 2012.  Therefore, it is not possible to consider an interim determination pursuant to section 51 of the Act, and the care percentages are to be determined on the actual care taking place.

12. I was satisfied that from 14 February 2021 there was a pattern of care under which Ms Sickler had 0% care of [Child 1] and Mr Burdge had 100% care.

13. 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. 

14. 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 14 February 2021 results in a change to the cost percentages used for [Child 1] in the child support assessment.  Therefore, the existing care determinations that have applied since 26 April 2012 must be revoked.

1. Subsection 54F(3) of the Act prescribes when a care percentage revocation takes effect.  If the Registrar 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 [Child 1] changed on 14 February 2021 and Mr Burdge advised Child Support of this on 14 April 2021, which is more than 28 days later.  As Ms Sickler had reduced care, her care percentage determination is revoked from the day before the care changed; that is, from 13 February 2021.  As Mr Burdge had increased care, his care percentage determination is revoked from the day before the day Child Support was notified of the change in care; that is, from 13 April 2021.

3. As I have revoked the existing care percentage determinations that apply in respect of [Child 1], I must make new care percentage determinations that reflect the pattern of care from 14 February 2021.  Accordingly, I found that:

   ·       Pursuant to section 49 of the Act, Ms Sickler’s percentage of care for [Child 1] is 0%.

   ·       Pursuant to section 50 of the Act, Mr Burdge’s percentage of care for [Child 1] 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 14 February 2021 for Ms Sickler and from 14 April 2021 for Mr Burdge.

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

DECISION

The decision under review is affirmed.