Slack and Slack (Child support)

[2023] AATA 3395

Slack and Slack (Child support) [2023] AATA 3395 (12 September 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/MC026015

APPLICANT:  Mr Slack

OTHER PARTIES:  Child Support Registrar

Ms Slack

TRIBUNAL:Senior Member S De Bono

DECISION DATE:  12 September 2023

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 – 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. Ms Slack and Mr Slack are the parents of [Child 1]. There has been a child support assessment in place since 30 April 2018. Services Australia (Child Support) has collected child support since 21 February 2019. From 1 September 2020 [Child 1] has been recorded as being in Ms Slack’s 61% care and Mr Slack’s 39% care in accordance with final court orders made on 29 April 2020. Mr Slack has been the parent liable to pay child support.

2. On 9 August 2022 Ms Slack advised Child Support there had been a change to the care arrangements for [Child 1] and advised from 1 June 2022 the care was 79% to her and 21% to Mr Slack. On 11 November 2022 Child Support made the decision to accept the care change notified by Ms Slack which applied to the care of [Child 1] from 1 June 2022.

3. On 14 February 2023 Mr Slack lodged an objection to this decision. On 18 April 2023 Mr Slack’s objection was disallowed and the care remained at 79% to Ms Slack and 21% to Mr Slack.

4. On 26 April 2023 Mr Slack applied to the Administrative Appeals Tribunal (the Tribunal) for an independent review of this decision. On 12 September 2023 Ms Slack and Mr Slack both gave evidence under affirmation. The Tribunal had before it a bundle of documents (414 pages – referred to as the hearing papers). Ms Slack said she had received some of the hearing papers and Mr Slack had not received the pages numbered 309–414 which had been sent to both parties prior to the hearing. Both parties were happy to proceed with the hearing. Relevant aspects of the material and evidence will be referred to in the Tribunal’s consideration of the issues to be decided.

ISSUES

1. The issues which arise in this case are:

   ·      Should the existing care determinations in relation to [Child 1] be revoked (and does an interim period apply?); and if so,

   ·      What is the date of effect of the revocation; and

   ·      What is the date of effect of the new care determinations and what are the new percentages of care for each parent?

LAW AND CONSIDERATION

1. The law that applies in this case is the Child Support (Assessment) Act 1989 (the Assessment 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 Assessment Act sets out the statutory formula for the calculation of child support. The statutory formula takes into account each parent’s adjusted taxable income and the level of care they provide for the child. In particular, the percentage of care used in a child support assessment is used to determine the percentage of the cost of the child that each parent is meeting directly through the care they are providing for that child. A parent or non-parent carer’s percentage of care for a child is calculated based on the care they are likely to provide for the child in the relevant care period.

Issue 1 – Should the existing care determinations in relation to [Child 1] be revoked (and does an interim period apply)?

1. Sections 49 and 50 of the Assessment Act provide that a new determination of percentage of care for a child must be made where an existing determination has been revoked. In this case the Tribunal must first be satisfied that there has been a change in the level of care provided by each parent for the child before a revocation under Subdivision C of Division 4 of Part 5 of the Assessment Act can be considered.

2. Section 49 of the Assessment Act applies, relevantly, if the parent “has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Section 50 of the Assessment Act applies, relevantly, if the parent “has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Both sections of the Assessment Act reflect the idea that Child Support makes a point-in-time care decision on the basis of what has happened up until the change in care is notified and what is likely to happen thereafter.

3. Sections 49 and 50 of the Assessment Act are subject to subsection 51(1) of the Assessment Act, which provides if a care arrangement (such as a court order) applies in relation to a child and the actual care of the child occurring does not comply with the court-ordered care, then an interim care period may apply. This is referred to as an interim care determination:

   Percentage of care if action taken to ensure that a care arrangement in relation to a child is complied with

   (1)           This section applies if:

   (a)the Registrar is required by section 49 or 50 to determine a responsible person's percentage of care for a child during a care period; and

   (b)               a care arrangement applies in relation to the child; and

   (c)the Registrar is satisfied that the actual care of the child that the responsible person has had, or is likely to have, during the care period does not comply with the extent of care of the child that the person should have had, or is to have, under the care arrangement during that period (which may be nil); and

   (d)a person who has reduced care of the child is taking reasonable action to ensure that the care arrangement is complied with.

   Note: This section does not apply in certain circumstances: see section 53.

4. Both parents agreed that court orders were in place at the time of Ms Slack’s notification of the care change which stipulated the care of [Child 1] as follows:[2]

   ·     In week 1: From Wednesday at the conclusion of school (or 3.30pm in the event of a non-school day) until the commencement of school on Friday (or 9:00am on a non school day).

   ·     In week 2: Each alternative weekend from the conclusion of school on Friday (or 3:30pm in the event of a non school day) to the commencement of school the following Monday.

   [2] Pages 195–196 of the hearing papers.

5. Ms Slack said as [Child 1] has become older he is making more of the decisions about when he spends time with his dad. She said while [Child 1] spends every second weekend with Mr Slack mostly in accordance with the court orders, the care spent overnight on a Wednesday and Thursday occurs on an ad hoc basis and is not a regular occurrence. Ms Slack said at the time of her notification about the change of care the weekday pattern of care in accordance with the court orders was not occurring on a regular basis.

6. Mr Slack was of the view that Ms Slack was withholding care of [Child 1], she was arranging activities, such as maths tutoring, maternal grandparent visits and other activities on the nights he was due to have care of [Child 1]. This meant [Child 1] was not coming to his home regularly on Wednesday and Thursday nights. Mr Slack also submitted that he did not think [Child 1] should be making these decisions himself and Ms Slack was deliberately impacting his care and she was allowing [Child 1] to have too much agency in these decisions.

7. Mr Slack said he wanted Child Support to “enforce” the court-ordered care of [Child 1] and said it was unfair that one parent could not be compliant with the court-ordered care and “benefit” from this in terms of increased child support.

8. Subsection 51(1) of the Assessment Act also provides that an interim care determination may be made provided the parent with reduced care is taking ‘reasonable action’ to have the court orders complied with.

9. Mr Slack said he spoke with his barrister who advised him that to have the care arrangements complied with would be very expensive, and given [Child 1]’s age (at the time of the change of care notification [Child 1] was 16 years old and he is now 17 years old) may not be successful in any event. Mr Slack reluctantly decided not to pursue this avenue further.

10. Ms Slack said she was not withholding care of [Child 1] and [Child 1] still spent time with his dad every second weekend. Ms Slack said Mr Slack often varied the times he has had care of [Child 1] at short notice, and she did not make a fuss about this. Ms Slack said it was her view that Mr Slack did not become upset about [Child 1] not staying with him regularly on Wednesday and Thursday nights until she lodged a change in care for [Child 1]. Ms Slack said the care arrangement for [Child 1] in accordance with the court orders had not occurred for a period of time prior to her notification of the care change.

11. In relation to the care arrangements for [Child 1], Ms Slack provided care calendars which she said showed the actual care of [Child 1] from June 2022:[3]

    ·      June 2022: 5 nights

    ·      July 2022: 2 nights  

    ·      August 2022: 2 nights

    ·      September 2022: 9 nights

    ·      October 2022: 5 nights

    ·      November 2022: 5 nights

    ·      December 2022: 9 nights

    ·      January 2023: 12 nights

    [3] Pages 234–239 and 241–242 of the hearing papers.

12. Mr Slack said he did not know if the care calendars were correct because he did not keep care calendars himself. Supporting evidence from Mr Slack confirms that the care of [Child 1] was not occurring in accordance with the court-ordered care and that [Child 1] was often not staying overnight on Wednesday and Thursday nights with him.[4]

    [4] Pages 148–150 of the hearing papers.

13. According to the actual care of [Child 1] from 1 June 2022 it is evident that the care was not occurring in accordance with the court-ordered care, as [Child 1] was not regularly staying with Mr Slack on Wednesday and Thursday nights. The Tribunal is satisfied that Mr Slack’s care of [Child 1] had reduced and Ms Slack’s care had increased. Based on the evidence from both Mr Slack and Ms Slack as well as the supporting written evidence from both parties, the Tribunal is satisfied that the actual care of [Child 1] occurring at the time of Ms Slack’s notification about the change of care to Child Support was that Mr Slack was having regular care of [Child 1] fortnightly on Friday, Saturday and Sunday nights, which is 21% care.[5]

    [5] The Tribunal has calculated this care based on the pattern of care Mr Slack is likely to have during the care period: 3 nights fortnightly is 21% care (78 nights care divided by 365 = 21%). Alternatively the actual care of Nicholas as shown by Ms Slack’s care calendars shows Nicholas has been in Mr Slack’s care for 49 nights out of a possible 244 nights, which equals 20% care.

14. As there has been a change to the cost percentage for Mr Slack the Tribunal is satisfied that the existing care determination of 39% care to Mr Slack and 61% care to Ms Slack should be revoked.

15. Subsections 51(2) and (3) of the Assessment Act provide that if an interim period applies two percentages of care will apply. The first being the percentage of care determined in accordance with the court orders, the second being the actual care that is occurring from the end of the interim care period.

16. The Tribunal considered in the first instance whether an interim period may apply. The Assessment Act does not define what constitutes ‘reasonable action’. The Guide at 2.2.4 says that reasonable action can 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. The Registrar may seek evidence that reasonable action has been taken.

17. As discussed, Mr Slack said he was advised by his barrister not to take further action, therefore, the Tribunal is satisfied that an interim care determination does not apply because Mr Slack was not taking reasonable action to have the court orders complied with.  

18. As there has been a change to the cost percentage the Tribunal is satisfied the existing care percentage should be revoked in accordance with section 54F of the Assessment Act and new care determinations made.

Issue 2 – What is the date of effect of the revocation?

1. Ms Slack notified Child Support that there had been a change to the existing care arrangements for [Child 1] on 9 August 2022 and that the care had changed from 1 June 2022.

2. Subsection 54F(3) of the Assessment Act provides that if the Registrar is notified, or otherwise becomes aware of the change of care day within 28 days of the change occurring then the existing care determination is revoked from the day before the change of care day. If the notification of the change of care day occurs more than 28 days after the change of care day, the existing care determination is revoked for the parent with increased care on the day before the notification to Child Support. For the parent with reduced care, it is revoked on the day before the change of care day.

3. This means the existing care determination of 61% care to Ms Slack is revoked on 8 August 2022 and 39% care for Mr Slack is revoked from 31 May 2022.

Issue 3 – What is the date of effect of the new care determinations and what are the new percentages of care for each parent?  

1. The Tribunal is satisfied that new care determinations are made in accordance with section 50 of the Assessment Act in which Ms Slack has 79% care of [Child 1] from 9 August 2022 and Mr Slack has 21% care of [Child 1] from 1 June 2022.

DECISION

The decision under review is affirmed.