Insights and Inspiration
No Care and No Responsibility
12 January 2017
There are two recent cases on child support that, for different reasons, have outcomes that seem harsh on the payer.
In P v Child Support Registrar a judge of the Federal Court of Australia had to deal with the case of a father who was assessed to pay child support based on the number of nights that the child in question was in the care of the mother and in the care of the father. This is the way, at least in part, that the child support assessment scheme is organised and works, but in this case there was quite a trail of litigation. The Child Support Agency (Department of Human Services) made an assessment, the father would have objected, the objection would have been refused, presumably it was then appealed by the father to the Administrative Appeals Tribunal and then ultimately to a judge in the Federal Court. There must have been a lot riding on this.
Essentially the father's argument was that if he was paying for the child to go to boarding school, the child was not in the mother's care but in fact was living at his expense anyway. Therefore, the father argued, he should not be paying child support for a period that the child was not in the mother's care.
You would think that that argument had some merit. But the judge did not agree. This is because the judge said that there are aspects of the child's care other than accommodation, food and clothing that the mother still has to assume. As the judge said, this "ignores the level of care provided during this time. She sees or speaks to (the child) every day during the week while he is at school, is involved in parenting teacher meetings, and is listed as the child's emergency contact. She has equal shared parental responsibility so she is involved in all the decisions about his health care, medical treatment or education".
While that may well be true, it doesn't seem to me to be what child support is all about: child support would appear to be about sharing the cost of maintaining the child. The cost of the daily phone calls, the cost of going to parent teacher meetings, and being an emergency contact do appear not to be considerable at all let alone relevant, and no doubt if the father were asked would he rather pay all of the cost of being the emergency contact or making the phone calls or being involved in decisions he would gladly accept that rather than the obligation to pay for child support when he was already paying the boarding fees.
The next decision, Masters and Cheyne 2016 Fam CAFC 255, but while harsh, the Court's reasoning is understandable. There the parents entered into a Binding Child Support Agreement. A Child Support Agreement is designed to avoid being caught up in and bound by the child support assessment process. It is a private contract between the parents but lodged with the Child Support Agency because it means that the Agency opts out of this families child support issues.
There are two kinds of child support agreement, limited and binding and this one was binding. How binding was the subject of the case.
At the time the couple entered into the child support agreement the children were living primarily with their mother. By the time the father's application to be relieved from the burden of the child support agreement came to court, there was only one child, the other two having grown up, and that child was living primarily with the father and hardly seeing the mother at all. On that basis, the father said that he should not be paying for a child to be supported by the child's mother when he was already paying for the child to live with him.
Again, that would seem fair and reasonable but the argument did not succeed because of the very binding nature of a binding child support agreement. What the court said was that a change in parenting arrangements was one of the risks that the parties had to look at before deciding whether to enter into a binding child support agreement at all. Binding meant binding. The circumstances in which it could be set aside were very limited, extraordinary, and not able reasonably to be foreseen.
Child support issues are often complicated and the choice of opting into the system of child support, or opting out and choosing between the two kinds of private agreements available, is a complex one and requires expert attention.
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