Smacton and Smacton (Child support)

[2024] AATA 2763

Smacton and Smacton (Child support) [2024] AATA 2763 (18 June 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/MC027351

APPLICANT:  Mr Smacton

OTHER PARTIES:  Child Support Registrar

Ms Smacton

TRIBUNAL:Member K Hamilton

DECISION DATE:  18 June 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS 

CHILD SUPPORT – percentage of care – change in the pattern of care – date of effect – not permissible for the pre-existing care determination to be revoked – 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 theChild Support (Registration and Collection) Act 1988

REASONS FOR DECISION

BACKGROUND

1. Mr Smacton and Ms Smacton are the parents of 2 children, [Child 1] and [Child 2].

2. On 16 September 2021, Ms Smacton advised Services Australia – Child Support (Child Support) that she had 90% care of the children and that Mr Smacton had 10% care from 24 April 2021.  Ms Smacton advised Child Support that she had sole care of the children during school terms from 24 April 2021 onwards and Mr Smacton had care of 40 nights (at most) per year, being 8 nights in each of the 2-week school holiday periods and 16 nights over summer holidays.

3. Prior to this notification, the pre-existing care percentage determination recorded that Ms Smacton had 83% care and Mr Smacton 17% care of the children.

4. On 1 October 2021, Child Support made a decision to reflect the care of the children as 90% to Ms Smacton and 10% to Mr Smacton from 24 April 2021 to 30 July 2021.

5. Mr Smacton objected to that decision on 20 December 2022. On 8 January 2024, a Child Support objections officer disallowed the objection.

6. On 15 January 2024, Mr Smacton applied to the Administrative Appeals Tribunal (the Tribunal) for further review.

7. The matter was first listed for hearing on 4 April 2024.  Mr Smacton and Ms Smacton participated in that hearing by telephone.  Following a discussion with Mr Smacton regarding the recent Federal Court decision in the matter of Child Support Registrar v CMU23 [2024] FCA 109, the matter was adjourned at Mr Smacton’s request to allow him to seek legal advice.

8. On 9 April 2024, the parties were advised that the matter would be listed for a resumed hearing on 26 April 2024.  Ms Smacton subsequently advised the Tribunal that she did not wish to participate in the resumed hearing.

9. Unfortunately, due to technical difficulties on the part of the Tribunal, the resumed hearing scheduled for 26 April 2024 did not proceed.  Mr Smacton subsequently requested that the application be heard on the papers, and Ms Smacton consented to this.

10. On 9 May 2024, I issued directions requiring both parties to submit any further documents and any written submissions on which they wished to rely by 31 May 2024.  Neither party provided any further documents or submissions to the Tribunal.

11. On 13 June 2024, I heard the matter on the papers, having regard to 541 pages of documents provided by Child Support to the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit 1). 

12. Mr Smacton had provided a further 21 pages of material to the Tribunal on 19 February 2024, consisting of emails between Mr Smacton and his new partner relating to complaints lodged with Child Support.  This material was not accepted by the Tribunal on the basis it was not relevant to the issues to be determined in this application, and I have not had regard to that material in making my decision.

13. From 31 July 2021, Child Support accepted a subsequent notification of a change in care made by Ms Smacton and recorded Ms Smacton as having 100% care of the children and Mr Smacton 0% care of the children from that date.  This subsequent determination is not before the Tribunal.  I am therefore required to consider the care of the children in the period 24 April 2021 to 30 July 2021 only (the relevant period).

ISSUES

1. The legislative provisions relevant to this application are contained in the Child Support (Registration and Collection) Act 1988 (the Act) and the Child Support (Assessment) Act 1989 (the Assessment Act).

2. Care decisions are made pursuant to the Assessment Act. If a person applies for an administrative assessment of child support and has had, or is likely to have, a pattern of care for the child during the relevant care period, then the decision-maker must determine that parent’s percentage of care for the child during the care period: section 50 of the Assessment Act.

3. If a responsible person who was to have at least regular care of a child during a care period (at least 14% care) under a care determination made under section 50, had no care of the child, or a pattern of care that was less than regular care of the child, the care determination must be revoked and a new determination made: section 54G in Division 4, Subdivision C of the Assessment Act. However, a determination can only be revoked under section 54G where the other responsible person is making the child available to the first responsible person.

4. Where section 54G does not apply, a responsible person’s existing percentage of care must be revoked if the actual care of the child does not correspond with the existing percentage of care and, if a new percentage of care were determined, the responsible person’s cost percentage would change: section 54F in Division 4, Subdivision C of the Assessment Act.

5. The legislation requires that if a determination of a responsible person’s percentage of care is revoked under Division 4, Subdivision C, and the responsible person for the child has had, or is likely to have, no pattern of care for the child during a care period, their percentage of care must be determined to be 0%: section 49 of the Assessment Act.

6. In some limited circumstances where a written care arrangement (such as a parenting plan or court orders) is not being complied with, and the person with reduced care is taking reasonable action to ensure the care arrangement is complied with, a person’s percentage of care may be determined based on the care arrangement for an interim period, rather than being based on actual care: section 51 and section 53 of the Assessment Act.

7. The Tribunal also had regard to the Child Support Guide (the Guide) where relevant. The Guide reflects government policy as to how the legislation is to be applied. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

8. The issues which arise in this case are:

   ·      Should the existing care percentage determinations be revoked?

   ·      Does an interim care period apply?

   ·      What are the new percentage of care determinations for Mr Smacton and Ms Smacton, and when do they apply?

CONSIDERATION

1. Mr Smacton’s written objection to Child Support states that Ms Smacton is withholding the children from visitation, and Child Support were not using the current Court orders dated 2 October 2020.  Mr Smacton stated “It has been taken out of my hands the fact I (sic) don’t see the children.  I have also attempted to take the matter back to court.  I have not had the financial capacity to obtain legal representation in order to take the matter back to the Family Court as determined in the contravention hearing as yet ... Based on the above, I believe it is fair and just for Child Support to be assessed by what visitation would be if Ms Smacton were adhering to the orders and as it would be if I had an opportunity to see my children …”” (Exhibit 1, page 197-198).

2. Mr Smacton provided to Child Support an application and supporting affidavit dated 29 January 2021 filed in the Federal Circuit Court, relating to an alleged contravention by Ms Smacton in failing to facilitate changeover of the children on 24 December 2020.

3. Ms Smacton provided to Child Support a memo from her counsel confirming that when Mr Smacton’s contravention application was heard on 15 April 2021, Mr Smacton agreed to withdraw his application (Exhibit 1, page 339–340). 

4. It is evident from the material before me that Mr Smacton does not contend that he continued to have any care of the children during school terms after 23 April 2021.  Mr Smacton confirmed at the first hearing of this matter that he was not having any actual care of the children during school terms.  Rather, Mr Smacton contends that his care percentage of the children should be recorded as what it would be if care was occurring as per the Family Court orders. 

5. On 11 October 2023, Ms Smacton provided to Child Support her record of visitation arrangements from 23 April 2021 onwards (Exhibit 1, page 337–338).  Ms Smacton recorded that Mr Smacton did not collect the children for his weekend on 23 April 2021.  Ms Smacton notes that Mr Smacton collected [Child 1] (only) for weekend visits on Friday 4 June 2021 and Saturday 31 July 2021.

6. Accepting Ms Smacton’s evidence that Mr Smacton had care of [Child 1] only for no more than 2 weekends (or between 2–5 nights), I find that Mr Smacton had less than regular care of both children in the relevant period.

Issue 1: Should the existing care percentage determinations be revoked?

1. I find based on the documentary evidence parties that there was a change in the children’s pattern of care from 24 April 2021, and from this date Mr Smacton did not have any care of the children during school terms. 

2. It is not a matter for this Tribunal to enforce parenting orders or impose consequences for non-compliance with parenting orders. Non-compliance with parenting orders is a matter that must be raised with the courts vested with jurisdiction to enforce orders made under the Family Law Act 1975 (that is, the Federal Circuit and Family Court of Australia). 

3. I note that while Mr Smacton appears to have previously raised a number of contravention allegations against Ms Smacton, the material before the Tribunal indicates that his application for contravention filed with the Family Court in January 2021 did not relate to the change in care from April 2021, and that application was withdrawn on 15 April 2021, prior to the current change in care taking effect.

4. The child support legislation provides a scheme to ensure that financial support is made available to persons who provide ongoing daily care to a child. It requires a decision-maker to assess parties’ care based on who has actual care of the child, which is generally worked out on the number of nights that the child is, or is likely to be, in the care of a person. I accept that Mr Smacton continued to have some limited care of the children during school holidays; however, his pattern of care was not sufficient to amount to regular care.  

5. As Mr Smacton has alleged that the children were not being made available to him after 24 April 2021, it is not permissible for the pre-existing care determination to be revoked under section 54G of the Assessment Act.

6. The change in the pattern of care from 22 June 2023 with Mr Smacton having less than regular care of the children has the effect of decreasing Mr Smacton’s cost percentage and increasing Ms Smacton’s cost percentage.

7. For the reasons stated below, I find that section 51 of the Assessment Act does not apply to Mr Smacton, and therefore an interim care period cannot apply in this case. Accordingly, the existing care determination of 83% to Ms Smacton and 17% to Mr Smacton must be revoked under section 54F of the Assessment Act.

Issue 2: Does an interim care period apply?

1. Section 51 of the Assessment Act allows for 2 care percentage determinations to be made in relation to a responsible person where they are taking reasonable action to ensure that the previous care arrangement is complied with. However, subsection 51(5) of the Assessment Act allows a single care percentage determination to be made if “special circumstances” exist in relation to the child.

2. Section 53 of the Assessment Act provides that section 51 does not permit an interim care determination to be made after the end of the “maximum interim period” (a variable period defined by section 53A, but generally no more than 14 weeks). Paragraph 53(1)(c), as it stood at the relevant time when there was a change in the children’s care, also provided that an interim care determination could not apply where a determination has been revoked under section 54F or 54H.

3. In Child Support Registrar v CMU23 [2024] FCA 109, the Federal Court found that a plain reading of section 53(1)(c) meant that an interim care period could not be applied under section 51 following revocation of an existing care determination under either section 54F or section 54H.[1]

   [1] Subsequent to the Federal Court’s decision in Child Support Registrar v CMU23 [2024] FCA 109, Parliament passed the Social Services Legislation Amendment (Child Support and Family Assistance Technical Amendments) Act 2024. This Act repealed paragraph 53(1)(c) of the Assessment Act, with the effect that an interim care period could be applied where the change in care occurred on or after 29 March 2024.

4. In practical terms, this means that an interim care period can only be applied under section 51 of the Assessment Act at the start of a child support case.[2] As there was a previous care determination made by Child Support regarding the care of the children, which I have found must be revoked under section 54F of the Assessment Act, paragraph 53(1)(c) of the Assessment Act does not permit any interim care period to apply from 24 April 2021.

Issue 3: What are the new percentage of care determinations for Mr Smacton and Ms Smacton and when do they apply?

[2] See also the Child Support Guide at 2.2.4.

1. For the reasons stated above I find that Mr Smacton has had less than regular care of the children since 24 April 2021. His care percentage of the children is 0% from 24 April 2021, with Ms Smacton having 100% care of the children from that date: section 50 of the Assessment Act.

2. Pursuant to paragraph 54F(3)(b) of the Assessment Act, as the change in care was notified on 16 September 2021, more than 28 days after that change occurred on 22 June 2023, there are different dates of effect for the revocation of each parent’s respective pre-existing care percentage determinations. Revocation of the pre-existing percentage of care determination of 17% recorded for Mr Smacton takes effect the day before the change of care day, that is, on 23 April 2021. Revocation of the pre-existing percentage of care determination of 83% recorded for Ms Smacton takes effect the day before the notification of the change of care day, that is, on 15 September 2021.

3. Pursuant to section 54B of the Act, new percentage of care determinations apply from the day immediately after revocation of the previous percentage of care determinations. Therefore, a new percentage of care determination of 0% for Mr Smacton applies from 24 April 2021 and a new percentage of care determination of 100% for Ms Smacton applies from 16 September 2021.

4. The Tribunal notes the further care percentage determination made by Child Support on 31 July 2021 recording Ms Smacton as having 100% care of the children from that date.  That subsequent decision will limit the practical effect of this decision in relation to the date of effect of Ms Smacton’s change in care of the children.

5. As I have reached the same conclusion as Child Support, the decision under review will be affirmed.

DECISION

The decision under review is affirmed.