Sparrow and Baldrick (Child support)

[2023] AATA 2143

Sparrow and Baldrick (Child support) [2023] AATA 2143 (21 June 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/CC025883

APPLICANT:  Mr Sparrow

OTHER PARTIES:  Child Support Registrar

Ms Baldrick

TRIBUNAL:Member F Staden

DECISION DATE:  21 June 2023

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – no interim period applied – 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. Mr Sparrow and Ms Baldrick are the separated parents of [Child 1], born 2006.  There has been a child support assessment in this case since 8 January 2013. At all relevant times here, Mr Sparrow was the parent liable to pay child support, with collection by Services Australia – Child Support (Child Support) from 8 January 2013.

2. From 7 February 2013, the care percentage used for Mr Sparrow in the assessment was 19% and that for Ms Baldrick was 81%. These care percentages are consistent with the agreed care arrangements for [Child 1] in the 6 May 2016 consent orders.

3. On 15 July 2022, Ms Baldrick notified Child Support that [Child 1] had been 100% in her care since 1 July 2021.

4. On 23 August 2022, Mr Sparrow informed Child Support that:

   ·     [Child 1] was 100% in Ms Baldrick’s care from 1 July 2021 because of COVID-related restrictions on travel (Mr Sparrow lives in the Australian Capital Territory (ACT) and Ms Baldrick lives in Queensland) and disagreement between the parents about how those restrictions affected [Child 1]’s travel between the homes of her parents.

   ·     His care percentage for [Child 1] from 8 July 2022 was 100%.

5. On 23 August 2022, Ms Baldrick informed Child Support that:

   ·     The start date of her 100% care of [Child 1] was 20 September 2021, not 1 July 2021.

   ·     She agreed Mr Sparrow has had 100% care of [Child 1] from 8 July 2022.

6. On 24 August 2022, a Child Support primary decision maker decided that:

   ·     For the period 20 September 2021 to 7 July 2022, Mr Sparrow’s care percentage for [Child 1] was 0% and that for Ms Baldrick was 100%; and

   ·     From 8 July 2022, Mr Sparrow’s care percentage for [Child 1] was 100% and for Ms Baldrick was 0%.

   As Ms Baldrick’s 15 July 2022 care change notification was more than 28 days after the change occurred, the combined effect of these decisions was that for the period 20 September 2021 to 7 July 2022, Mr Sparrow’s care percentage for [Child 1] was 0% and that for Ms Baldrick was 81%.

7. On 16 December 2022, Mr Sparrow lodged an objection to the 24 August 2022 decision that he had no care of [Child 1] in the period 20 September 2021 to 7 July 2022, arguing that an interim care determination should have been applied as he had taken reasonable action to regain care as set out in the 6 May 2016 consent orders.

8. On 21 March 2023, an objections officer disallowed Mr Sparrow’s objection.

9. On 29 March 2023, Mr Sparrow applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) for review of the objections officer’s decision.

10. A hearing was conducted on 21 June 2023. Mr Sparrow and Ms Baldrick gave sworn evidence by MS Teams video and MS Teams audio respectively. The tribunal had before it documents provided by Child Support (230 pages), a copy of which was sent to the parents before the hearing.

11. Relevant aspects of the evidence are referred to in the consideration below.

ISSUES

1. The relevant legislation in this case is the Child Support (Assessment) Act 1989 (the Assessment Act). The tribunal also had regard to the Child Support Guide, the Australian government’s online technical and policy guide to the administration of the child support scheme.

2. Child Support, acting for the Child Support Registrar, generally makes child support assessments using a statutory formula in Part 5 of the Assessment Act. This formula contains a number of elements called the particulars of the assessment. They include a care percentage and a cost percentage for each parent or non-parent carer in relation to each child.

3. Child Support decides care percentages in line with sections 49 to 54L of the Assessment Act. These provisions require Child Support to decide a care percentage for each parent or non-parent carer when first making a child support assessment and to revoke and remake those decisions in specific circumstances.

4. Sections 49 and 50 of the Assessment Act require Child Support, or here the tribunal, to determine the likely pattern of care for a child during a care period that is considered appropriate, usually 12 months. The pattern of care can be established either according to a ‘care arrangement’, for example, court orders, or the actual care that is taking place. If established, the same pattern of care is assumed to apply for the care period unless Child Support or Centrelink are informed otherwise.

5. If a person is prevented, without their consent, from having a child in their care in accordance with a care arrangement, and they take reasonable steps to have that care arrangement complied with, there may be an interim period where care percentages are determined by the care arrangement rather than actual care.

6. Both parents agree that Mr Sparrow had no care of [Child 1] in the period 20 September 2021 to 7 July 2022. The issue which arises in this case is:

   ·    Should an interim care period be applied from 20 September 2021?

CONSIDERATION

1. Mr Sparrow’s care pattern for [Child 1], as set out in the 6 May 2016 consent orders, can be summarised as half (approximately one week) of the Easter school holidays, all (approximately two weeks) of the June/July school holidays, half (approximately one week) of the September/October school holidays, three or four weeks (alternating by year) of the Christmas school holidays and one other week at a point in the school semester to be agreed by the parents. The consent orders state that Mr Sparrow is the parent responsible for booking and paying for flights.

2. Mr Sparrow booked flights for [Child 1] in relation to the June/July 2021 school holidays. The flights were to Sydney, not Canberra, so that [Child 1] could more easily be collected to join Mr Sparrow’s family for a coastal holiday. Ms Baldrick regarded it as unsafe for [Child 1] to travel to Sydney as it was a declared COVID hotspot. Mr Sparrow disagreed. [Child 1] did not travel to be in Mr Sparrow’s care during the June/July 2021 school holidays.

3. On 3 September 2021, Ms Baldrick texted Mr Sparrow, stating that as the Queensland border was closed to NSW and ACT residents it was highly unlikely that [Child 1] would be able to come to Mr Sparrow for the September/October 2021 school holidays. Mr Sparrow did not reply to this text and there is no evidence of flights being booked. The tribunal noted that Canberra was in lockdown throughout this holiday period.

4. On 9 December 2021, Mr Sparrow and Ms Baldrick exchanged texts about [Child 1]’s flights in relation to the Christmas school holidays. Ms Baldrick suggested that Mr Sparrow speak to [Child 1] before he booked the flights. Mr Sparrow booked the flights without doing so, the outward flight being on 31 December 2021. Mr Sparrow did not dispute Ms Baldrick’s evidence that [Child 1] subsequently refused to travel to take that flight.

5. [Child 1] next visited Mr Sparrow in the June/July 2022 school holidays and has been in his care since then.

6. Evidence provided by Mr Sparrow shows that on 22 February 2022 he applied for contravention orders in relation to events on 20 June 2021 and 31 December 2021 (written as 2020 in error in both cases). Mr Sparrow told the tribunal that these matters were eventually resolved through court ordered mediation which resulted in 15 December 2022 consent orders under which [Child 1] lives with Mr Sparrow and has the option of spending up to eight weeks a year with Ms Baldrick.

7. Ms Baldrick said that Mr Sparrow had no contact with [Child 1] for an extended period from September 2021. Mr Sparrow agreed that he did not resume contact with [Child 1] until April 2022. He said he was very frustrated by the situation, arguing that Ms Baldrick deliberately obstructed his relationship with [Child 1]. Ms Baldrick disputed this.

Conclusion

1. A care event was due to occur in the June/July 2021 school holidays. Mr Sparrow had booked the necessary flights but the parents disagreed about [Child 1]’s safety if she flew to Sydney. As they were unable to resolve this difference, care did not take place. Mr Sparrow argued that this was an example of Ms Baldrick withholding care. In the view of the tribunal, this unsuccessful care event was one of many disrupted care arrangements experienced by separated parents during the pandemic; one factor in which was different people being able to tolerate different levels of anxiety about safety. The tribunal noted that, in any case, Ms Baldrick withdrew her request for a change of care percentages from 1 July 2021.

2. The June/July 2021 school holidays unsuccessful care event is not in the time period being considered here but provided a useful comparison with what happened in the September/October 2021 school holidays. Here Mr Sparrow did not book flights as required in the consent orders; he did not respond to Ms Baldrick’s 3 September 2021 text and did not otherwise communicate with Ms Baldrick or [Child 1] about care arrangements; and there is no record of his contacting Child Support about withheld care or of his taking timely reasonable action to ensure that care took place. The tribunal acknowledges that Mr Sparrow did take legal action in relation to [Child 1]’s care some months later.

3. The tribunal therefore found that there is no basis for applying an interim care period from 20 September 2021. As the tribunal is affirming the objections officer’s decision, it was not necessary for the tribunal to consider the date of effect consequences of Mr Sparrow’s objection being lodged more than 28 days after his notification of the original decision.

DECISION

The decision under review is affirmed.