Child Support variation refused despite Payee’s withholding of children

Child Support variation refused despite Payee’s withholding of children

REASONS FOR JUDGMENT

1. The Applicant, whom has previously been assessed to pay child support in the amount of about $2,126.00 per month, as from 15 January 2007, seeks an order specifying that the annual rate of child support payable by him in respect of the children B (born in 2001) and C (born in 2004) be varied to “Nil” from 18 September 2014 onward.
2. His application for this variation to the child support assessment relies on the fact that, on 18 September 2014, a Recovery Order was made, by which the children were to live with him. Despite this, and as a result of the Respondent’s deliberate actions, the Recovery Order was only executed on 25 July 2015.
3. That is, whilst the terms of the Recovery Order provided that the Applicant was to have 100 per cent of the care of the children, the Respondent in fact retained 100 per cent of their care, in breach of the terms of the Recovery Order, until 25 July 2015.
4. The Applicant’s evidence is to the effect that, despite the terms of the Recovery Order, he was required to continue to pay child support in the amount assessed until an Order, made on 6 May 2015, stayed the operation and implementation of the Child Support (Assessment) Act 1989 (Cth) and the Child Support (Registration and Collection) Act 1988 (Cth) and also stayed the execution and collection of monies payable by him by virtue of the child support assessment pertaining to the children pending the hearing and final determination of his application for discharge and/or variation of the assessment.

Brief overview of relevant legislative provisions and their operation

5. The parents of children have the primary duty to maintain those children.^[1] The principal object of the Child Support (Assessment) Act 1989 (Cth) is to ensure that children receive a proper level of financial support from their parents.^[2] Particular objects of the Act include ensuring that:
   1. the level of financial support to be provided by parents for their children is determined according to their capacity to provide financial support and, in particular, that parents with a like capacity to provide financial support for their children should provide like amounts of financial support;^[3] and
   2. the level of financial support to be provided by parents for their children should be determined in accordance with the costs of the children;^[4] and
   100. persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to Court proceedings;^[5] and
   4. children share in changes in the standard of living of both their parents, whether or not they are living with both or either of them.^[6]
6. The relevant legislative provisions require that, in determining the annual rate of child support payable for a child (using the “basic formula”), the Registrar must:
   1. determine each parent’s child support income;^[7] and then
   2. determine the parents’ combined child support income;^[8] and then
   100. determine each parent’s income percentage;^[9] and then
   4. determine each parent’s percentage of care for the child;^[10] and then
   5. determine each parent’s cost percentage for the child;^[11] and then
   6. determine each parent’s child support percentage for the child;^[12] and then
   7. determine the costs of the child under s 55G and s 55H of the Child Support (Assessment) Act 1989(Cth); and then
   8. if a parent has a positive child support percentage: determine the annual rate of child support payable by the parent for the child for the day by using the formula: “Child support percentage x costs of the child”.
7. Whilst it is probably obvious, for the purposes of the assessment of the amount of child support payable by a parent, the “percentage of care” is the mechanism used to take into account the amount of time that parent is responsible for providing care for the child.
8. The Registrar usually determines the “percentage of care” based on the actual care that each parent has of the child.^[13] However, where a parent is not complying with, relevantly, a Court order and an interim care decision is in effect, the Registrar may determine not to use the actual care a parent has of a child to determine the care percentage but, instead, and for an interim period, may make a determination of the percentage of care based on, relevantly, the terms of the Court order rather than on the actual care.^[14] It seems to me to be incumbent on the parent seeking that the Registrar use the terms of the order, rather than the ‘actual care’, to take reasonable steps to have the terms of the order complied with.
9. Once determined, a parent’s “percentage of care” is used to determine their “cost percentage” for the child and is also described by the use of one of five different terms prescribed within the Act. Relevantly, these include “regular care” (being the term used to describe a percentage of care of 14 per cent to less than 35 per cent), “primary care” (being the term used to describe a percentage of care of more than 65 per cent to 85 per cent) and “above primary care” (being the term used to describe a percentage of care of more than 86 per cent to 100 per cent).
10. The relevance of these is that a parent who has a care percentage of less than 35 per cent for a child will not receive child support for that child; a parent who has more than 65 per cent care for a child will not be assessed to pay child support and a parent who has more than 86 per cent of care for a child is not required to pay child support.
11. The terms of the September 2014 Recovery Order were such that, if implemented as intended when the Order was made, it is more likely than not that the Respondent’s “percentage of care” would have been less than 35 per cent and the Applicant’s “percentage of care” would have been no less than that which constitutes “primary care”.
12. I think it also relevant to note that the provisions of the Child Support (Assessment) Act 1989 (Cth) enable the Registrar^[15] to make an interim care determination in cases where there is a dispute between parties in relation to the care of a child. Such dispute exists where a care arrangement for the child (which relevantly includes a parenting order within the meaning of s 64B of the Family Law Act 1975 (Cth)) is in place and there is a departure from the terms of the same by one of the parties.
13. If, for example, a parent is, without their consent, prevented from having a child in their care in accordance with the care arrangement (that is, a parenting order) and that parent takes reasonable steps to have the care arrangement complied with (for example, filing an application in Court seeking that the order be enforced), the Registrar may, for an interim period (being a period of up to 14 weeks or, in special circumstances,^[16] 26 weeks), determine that parent’s care for the child on the basis of the care arrangement (relevantly, the terms of the parenting order) rather than actual care provided by that parent.
14. Such determination may well mean that child support will be assessed in accordance with the care arrangement rather than in accordance with the manner in which the child is actually being cared for but, at the conclusion of the interim period, the parent’s care percentage will, from the day after the end of the interim period, again be determined according to that parent’s actual care of the child.

Conclusions

15. Whilst the Applicant’s position in advancing the application is understandable in all the circumstances of this particular case, I have reached the conclusion that the evidence does not establish those matters about which, pursuant to s 117(1) of the Child Support (Assessment) Act 1989 (Cth), I must be satisfied in order to grant the relief sought by the Applicant.
16. It is clear that, from 18 September 2014 until 25 July 2015, the children were completely in the Respondent’s care and that she was the parent responsible for providing all of the ongoing daily care for them. That she provided this care in breach of the terms of the Recovery Order does not mean that it was not provided.
17. Additionally, the fact that the Respondent was 100 per cent responsible for the children’s care during this period means that the Applicant was not called upon to meet their expenses in the way in which he would have been if the Respondent had complied with the terms of the Recovery Order and caused the children to live with him thereafter.
18. For these short reasons, I refuse the Applicant’s application for an order varying the annual rate of child support payable by him from 18 September 2014 onward.

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