Forstater and Thwaites (Child support)

[2022] AATA 3965

Forstater and Thwaites (Child support) [2022] AATA 3965 (21 October 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/AC023938

APPLICANT:  Ms Forstater

OTHER PARTIES:  Child Support Registrar

Mr Thwaites

TRIBUNAL:Member D Lambden

DECISION DATE:  21 October 2022

DECISION:

The decision under review is set aside and, in substitution, the tribunal finds in relation to [the child] that Mr Thwaites has 86% care applying from 2 January 2022 and Ms Forstater has 14% care applying from 17 November 2021.

The tribunal refuses to make a determination under section 95N of the Child Support (Registration and Collection) Act 1988. The date of effect of the tribunal’s decision is 20 May 2022.

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 set aside and substituted

CHILD SUPPORT – date of effect of the tribunal’s decision – late application for review – no special circumstances exist that prevented the application for review being lodged in time – tribunal declines to make a determination under subsection 95N(2)

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted 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. This review relates to a decision of the Child Support Registrar of Services Australia (Child Support Agency) regarding the care of Ms Forstater and Mr Thwaites’ son [the child] who is now 17 years old.

2. There is a Federal Circuit Court of Australia order dated 23 February 2018 which relates to the care of [the child]. The order specifies that the child will live with his mother except for the times when he spends time with his father which the court order states is each alternate weekend from Thursday conclusion of school or 3.30 pm on non-school days until Monday commencement of school or 3.30 pm on non-school days. There are also some special overnights, such as Christmas Eve and Christmas Day, which alternate between the parents, and for Easter each year the child is to spend equal time with each parent. The order states that the child will spend time with his mother on Mother’s Day and time with his father on Father’s Day, and during the school holidays he is to spend equal time with both parents. The order also states ‘in the event that the mother seeks to relocate from the [City] area (defined as outside the current school bus route) the children … and [the child] shall live with the father and spend time with the mother in accordance with their wishes at all times for the balance of their secondary years at [College] save and except as to time arrangements as otherwise agreed between the parents in writing’.

3. On 4 June 2021 a previous care determination reflected care of the child as 50% to Ms Forstater and 50% to Mr Thwaites from 24 May 2021.

1. On 2 January 2022 Mr Thwaites contacted the Child Support Agency and advised that his care of the child had changed such that he had had 335 nights (92%) care of the child and Ms Forstater had had 30 nights (8%) care of the child from 17 November 2021.

2. On 2 March 2022 the Child Support Agency decided that from 17 November 2021 the care of the child was 42 nights (11%) to Ms Forstater and 323 nights (89%) to Mr Thwaites but applied this to Ms Forstater’s care percentage from 17 November 2021 and Mr Thwaites’ care percentage from 2 January 2022.

3. Ms Forstater objected to that decision on 7 March 2022. However, on 8 April 2022, the objection was disallowed.

4. The Child Support Agency notified Ms Forstater of its objection decision via a letter dated 8 April 2022. According to T doc 21 of the papers provided by the Child Support Agency she was advised of the objection officer’s decision via an online read of the letter and she therefore had until 8 May 2022 to lodge a review with the tribunal in relation to the objection decision. However, Ms Forstater sought review by the tribunal on 20 May 2022 which is not within the legislated 28-day period since the objection decision was received by her.

5. Prior to the hearing on 31 August 2022 Ms Forstater provided the following documents which were shared with the other parties to the appeal:

• A tribunal submission form (Exhibit A1 to A2)

• A document in relation to flight details for [the child] with [Airline 1] in October 2022 (Exhibit A3).

1. The matter was heard on 31 August 2022 and the parties appeared by an MS Teams audio hearing, and both provided evidence under affirmation.

2. The tribunal deferred making a decision to research the law.

3. The tribunal considered all of the evidence available to it in the context of the relevant legislation and on 21 October 2022 the tribunal proceeded to determine the matter.

ISSUES

1. The issues for the tribunal to determine are:

• Should the existing determination of percentage of care be revoked? If so, from when should it be revoked?

• Should a new determination of a percentage of care be attributed to Ms Forstater and Mr Thwaites in respect of the child?

• What is the date of effect of the review decision?

CONSIDERATION

1. The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (Assessment Act) and the Child Support (Registration and Collection) Act1988 (Registration and Collection Act). The Evidence Act 1995 (the Evidence Act) is also relevant in this case.

2. Percentage of care determinations are made under section 49 and/or section 50 of the Assessment Act. Section 49 of the Assessment Act provides authority to make a determination in circumstances where a parent has no care of the child. Section 50 of the Assessment Act provides authority to make a determination of a percentage of care in situations where a person has a pattern of care. Where the Child Support Registrar is satisfied that a responsible person has had, or is likely to have, a pattern of care for the child during the relevant care period, the Registrar must determine that person’s percentage of care for the child during the care period. The percentage determined must be the percentage that corresponds with the care of the child that the Registrar is satisfied the responsible person has had, or is likely to have, during the relevant care period.

3. The pattern can be established either according to a ‘care arrangement’ (such as court orders) or the actual care that is taking place. Depending on whether a pattern has been established or not, the tribunal can then proceed to determine the percentage of care applying the appropriate law (sections 49 and 50 of the Assessment Act).

4. The Assessment Act at section 5 provides that a ‘care arrangement’ has the same meaning as in the A New Tax System (Family Assistance) Act 1999 (Family Assistance Act). The Family Assistance Act defines a ‘care arrangement’ to include ‘a parenting order within the meaning of section 64B of the Family Law Act 1975’. That Act provides at section 64B that a parenting order is an order that deals with any of the matters listed in subsection 64B(2) of the Act which in summary can be captured in paragraph 64B(2)(i) being ‘any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child’. The tribunal finds that the Federal Circuit Court order of 23 February 2018 is a ‘care arrangement’ for the purposes of the Assessment Act.

5. The term ‘pattern of care’ is not defined in the legislation. It involves an examination of a person’s future likely care.

6. The Assessment Act provides that the care percentage must be determined for a ‘care period’. The care period is such a period as the Registrar considers to be appropriate having regard to all the circumstances (subparagraph 50(1)(b)(ii) of the Act). The Child Support Agency’s policy in this regard, as set out in chapter 2.2.1 of the Child Support Guide (the Guide), is that a care period is generally a 12-month period from the day on which the actual care for a child changed. This policy is not binding on the tribunal and the tribunal can determine a different care period.

7. The tribunal is satisfied that a 12-month care period was appropriate in this case commencing from 17 November 2021 (noting that this will apply only unless or until a further care determination is made).

8. Section 54A of the Assessment Act provides that the Registrar may assess the level of care based on the number of nights that a parent has during a care period.

9. In this case, neither parent contended that nights were an unsuitable measure of the care of the children and the tribunal finds that nights are an appropriate method of ascertaining the actual care of the child.

Issue one – Should the existing determination of percentage of care be revoked?

1. The provisions in Division 4 of Part 5 of the Assessment Act require the Child Support Agency (and the tribunal on review) to determine whether the existing care determination is correct, whether it can be revoked and, if so, what new care percentage decision can be made.

2. Sections 49 and 50 of the Assessment Act require a new determination of percentage of care for a child to be made where an existing determination has been revoked.

3. A care determination must be revoked if the Registrar is notified or otherwise becomes aware that the care of a child that is actually taking place does not correspond with the existing percentage of care for the child and the responsible person’s cost percentage would change if a new determination were made: section 54F of the Assessment Act.

4. Ms Forstater provided the following evidence to the tribunal:

• Ms Forstater explained that since 17 November 2021 the court order that was in place in relation to the child’s care arrangements has not been followed. She referred to T doc 89 included in the tribunal papers which is a copy of a text message between Ms Forstater and Mr Thwaites on 3 November 2021 that Mr Thwaites provided to the Child Support Agency on 9 February 2022 which relates to her informing him that she has taken over a lease in Adelaide from mid-November.

• Ms Forstater referred to T doc 27 included in the tribunal papers which is a record from the Child Support Agency on 7 January 2022 when she advised the Child Support Agency that she and Mr Thwaites and the child have not agreed to a set arrangement for the child’s care however she disputed that her care of the child will be less than the 52 nights Mr Thwaites had reported.

• She stated that the child is allowed to have a job, he works on the [workplace] for his father, and it makes it difficult for the child to spend time with her during the school holidays.

• Ms Forstater stated that the child stayed with her on Christmas Eve 2021 for one night and prior to him staying with her for that night he had stayed with her for nine to 10 nights in December 2021. She referred to T doc 26 in the tribunal papers which was a copy of her discussion with the Child Support Agency on 7 January 2022 when she advised that the child had been in her care from 4 December 2021 to 11 December 2021 and also on 24 December 2021.

• She stated that due to COVID the first two weeks of school for the child for 2022 were online learning and he came to stay with her in Adelaide for these two weeks from 29 January 2022 to 11 February 2022. She stated that the child’s school had sent an email explaining that the first two weeks of school for 2022 would be online learning. She referred to T doc 59 in the tribunal papers which is a copy of a Webjet tax invoice which lists the child’s name for travel on 29 January 2022 from [City] to Adelaide.

• Ms Forstater stated that the child is meant to spend three out of the six weeks of school holidays in December and January in her care. She stated that the plan was for the child to be in her care on one to two occasions during each school term during the year however it is difficult to have set weekends during the term depending on the child’s commitments each weekend.

• She stated that she communicates through text messages with the child and Mr Thwaites in relation to when the child will be in her care.

• She stated that in the October school holidays it has been arranged for the child to fly to [Region] to spend time in her care from 3 October to 9 October 2022.

• Ms Forstater referred to T docs 119 to 121 in the tribunal papers which are copies of text messages between herself and Mr Thwaites that she provided to the Child Support Agency on 1 March 2022. She stated that it indicates in the texts that the child was in her care from 18 March to 20 March 2022.

• She stated that in term 2 2022 she visited the child in [City] on two occasions, once for two nights and again for three nights.

• She stated that in May 2022 the child was in her care from 26 May to 29 May 2022 because she remembers at the time he became unwell.

• She stated that by July 2022 the child will have been in her care for 44 nights in 2022 and by December he will have been in her care for 53 nights in 2022. She stated that the child is in her care for greater than 11% of the time as assessed by the Child Support Agency.

1. Mr Thwaites provided the following evidence to the tribunal:

• He stated that the child was in Ms Forstater’s care on the following dates after 17 November 2021:

  §4 December to 13 December 2021 (nine nights)

  §24 December 2021 (one night)

  §29 January 2022 to 11 February 2022 (13 nights) and seven of those nights were for remote learning which the child undertook while he was in Ms Forstater’s care

  §18 March to 20 March 2022 (two nights)

  §22 April to 30 April 2022 (eight nights)

  §26 May to 30 May 2022 (four nights).

• He stated that the time that the child spent in Ms Forstater’s care in January to February 2022 undertaking remote learning was extraordinary due to the COVID situation.

• He stated that the plan was for the child to spend three nights with Ms Forstater in May 2022 however it ended up being for four nights.

• Mr Thwaites explained that he and Ms Forstater shared the care of the child on a 50/50 basis until 17 November 2021 when she moved to live in Adelaide. He stated that it was agreed that the child would live with Mr Thwaites and spend time with Ms Forstater.

1. It was not in dispute that the care arrangements for the child changed from 17 November 2021 when Ms Forstater moved to live in Adelaide. Based on the evidence provided by Ms Forstater and Mr Thwaites and the Child Support Agency the tribunal is satisfied that from 17 November 2021 the level of care no longer corresponds to the existing care registered with the Child Support Agency of 50/50 to Ms Forstater and Mr Thwaites respectively.

2. The tribunal noted that included in the tribunal papers at T doc 9 is a copy of a [Airline 2] e‑ticket itinerary, receipt and tax invoice for [the child] as a passenger flying from Brisbane to Adelaide on 17 July 2022.

3. Based on the evidence provided by Ms Forstater and Mr Thwaites at the hearing and the copies of documentation from Webjet regarding flights by the child in February 2022, March 2022 and October 2022 included in the tribunal papers and the additional document provided by Ms Forstater to the tribunal in relation to the child’s flight with [Airline 2] on 17 July 2022 the tribunal concludes that on balance the child will be in Ms Forstater’s care as follows:

• For 42 nights during the 12 weeks of school holidays each calendar year (half of the school holidays);

• For 11 additional nights during school terms throughout the year; and

• Total nights per year in Ms Forstater’s care is 53 nights (14.5%).

1. The tribunal finds that the child is in Mr Thwaites’ care on the remaining nights per year when he is not in Ms Forstater’s care: 312 nights (85.5%).

2. Section 54D of the Assessment Act provides that rounding rules apply to percentages of care. If the care percentage is less than 50% then the percentage is to be rounded down to the nearest whole per cent. If the care percentage is greater than 50% then it is to be rounded up to the nearest whole per cent. As such, the tribunal finds that the correct and preferable care percentage to be applied is 14% care of the child to Ms Forstater and 86% care to Mr Thwaites.

3. Therefore, the tribunal finds that the child is in Ms Forstater’s care for 53 nights per year (14%) and Mr Thwaites’ care for 311 nights per year (86%).

33.In relation to paragraph 54F(1)(b) of the Act, the tribunal must consider whether a person’s cost percentage would change if a new percentage of care determination were made under section 49 or 50 of the Assessment Act. Section 50 is applicable where a responsible person for the child has had, or is likely to have, a pattern of care during the care period. Therefore, the issue for the tribunal to consider is if new care percentages are determined under section 50, whether the parents’ cost percentages change.

1. Section 55C of the Assessment Act details how the percentage of care affects the cost percentage:

Cost percentages
Item	Column 1 Percentage of care	Column 2 Cost percentage
1	0 to less than 14%	Nil
2	14% to less than 35%	24%
3	35% to less than 48%	25% plus 2% for each percentage point over 35%
4	48% to 52%	50%
5	more than 52% to 65%	51% plus 2% for each percentage point over 53%
6	more than 65% to 86%	76%
7	more than 86% to 100%	100%

1. Prior to 17 November 2021 the pre-existing care that was recorded was that both Ms Forstater and Mr Thwaites had a care percentage of 50% and a cost percentage of 50%. The tribunal’s determination will mean that in the care period commencing from 17 November 2021 Mr Thwaites will have a care percentage of 86% and a cost percentage of 76% and Ms Forstater will have a care percentage of 14% and a cost percentage of nil. Accordingly, the tribunal is satisfied that if new determinations were to be made, both parents’ cost percentages would change, and revocation of the existing care determinations would be required.

2. The tribunal considered that section 54G of the Assessment Act did not apply in this case rather than section 54F. Paragraph 54G(1)(d) requires that Mr Thwaites notify the Child Support Agency that Ms Forstater had less than regular care of the child ‘within a period that the Registrar considers is reasonable in the circumstances’. The papers disclose – and it is not disputed by Mr Thwaites – that he notified the Child Support Agency on 2 January 2022 that the care of the child by Ms Forstater had reduced from 17 November 2021. The tribunal finds that Mr Thwaites did not notify the Child Support Agency of the change in care within a period which was reasonable in the circumstances. Normally, a reasonable period is within 28 days. Consequently, section 54G is not applicable. The tribunal is satisfied that the care percentages which existed prior to 17 November 2021 must be revoked in accordance with section 54F of the Assessment Act.

3. Subsection 54F(2) of the Assessment Act specifies when the revocation of the determination takes effect. The date of effect depends on whether the Child Support Agency was notified of the care change within 28 days after it occurred. The tribunal has found that the care change occurred on 17 November 2021. It also has found that Mr Thwaites notified the Child Support Agency of the change on 2 January 2022. As the Child Support Agency was not notified within 28 days after the change occurred, the revocation of the existing determination of Mr Thwaites’ care percentage takes effect in accordance with paragraph 54F(3)(b)(i) on 1 January 2022, being the day before the Child Support Agency was notified of the change of care, and the revocation of the existing determination of Ms Forstater’s care percentage takes effect in accordance with paragraph 54F(3)(b)(ii) on 16 November 2021, the day before the change of care day.

1. Before the tribunal makes new determinations under sections 49 and 50 of the Assessment Act the tribunal must consider whether it is appropriate to make an interim care determination.

2. Section 51 of the Assessment Act applies where it is necessary to determine a new care percentage and where a care arrangement applies in relation to the child. In this case, it is clear that a ‘care arrangement’ applies in relation to the child in the form of the court order of 23 February 2018. In cases where the care arrangement is not being complied with, an exception applies to the way in which a determination is made under either section 49 or section 50 of the Assessment Act. However, the tribunal finds that section 51 is not applicable in this case because the court order was being complied with as clause 14 of the order states ‘In the event that the mother seeks to relocate from the [City] area (defined as outside the current school bus route) the children [Child 2] and [the child] shall live with the father and spend time with the mother in accordance with their wishes at all times for the balance of their secondary years at [College] save and except as to time arrangements as otherwise agreed between the parents in writing’. The tribunal finds based on the evidence from Ms Forstater and Mr Thwaites that following Ms Forstater moving to reside in Adelaide the child was spending time with Ms Forstater in accordance with the child’s wishes.

Issue two – Should a new determination of a percentage of care be attributed to Ms Forstster and Mr Thwaites in respect of [the child]?

1. Having revoked the existing determinations, the tribunal must make new determinations of the percentages of care attributed to Ms Forstater and Mr Thwaites in respect of the child. The tribunal considered section 50 to be the relevant section of the Assessment Act. Under section 50, to make a new determination the tribunal must be satisfied that an existing care determination made under section 49 or 50 has been revoked and that a parent had had or is likely to have a pattern of care for the child. These matters have been discussed above, and the tribunal is satisfied that the existing care determination made under section 50 of the Assessment Act to attribute 50% to Ms Forstater and 50% to Mr Thwaites should be revoked under section 54F of the Assessment Act, and that during the care period Ms Forstater and Mr Thwaites were each likely to have a pattern of care in respect of the child of 14% to Ms Forstater and 86% to Mr Thwaites. Accordingly, a new care determination is to be made under section 50 of the Assessment Act.

Issue three – From what date should the administrative assessment be amended to reflect the change?

1. As the Child Support Agency was notified more than 28 days after the change occurred, the revocation of the existing determination takes effect in accordance with paragraph 54F(3)(b) of the Assessment Act.

2. Mr Thwaites’ care of the child increased, and according to subparagraph 54F(3)(b)(i) of the Assessment Act his existing care percentage of 50% was revoked from 1 January 2022 being the day before the Child Support Agency was notified of the care change and the new care percentage of 86% commenced on 2 January 2022.

3. Ms Forstater’s care decreased, and according to subparagraph 54F(3)(b)(ii) of the Assessment Act her existing care percentage of 50% was revoked from 16 November 2021 being the day before the change of care day and the new care percentage of 14% commenced on 17 November 2021.

4. The new care determinations will take effect for child support purposes from 2 January 2022 for Mr Thwaites and 17 November 2021 for Ms Forstater. They are made pursuant to section 50 of the Assessment Act. The determinations state that Mr Thwaites has 86% care of the child and Ms Forstater has 14% care.

Issue four – What is the date of effect of the review decision?

1. Subsection 43(6) of the Administrative Appeals Tribunal Act 1975 provides that if the tribunal on review varies or substitutes a decision, the varied or substituted decision has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.

2. However, section 95N of the Registration and Collection Act applies where the tribunal varies or substitutes a decision on an objection to a care percentage decision. If the application for review was made to the tribunal more than 28 days after notice was given, and the tribunal makes a decision which varies or substitutes a decision on the basis of an objection to a care percentage decision, the decision as substituted by the tribunal is taken to have been made on the day the application for review was made to the tribunal (subsection 95N(1) of the Registration and Collection Act).

3. If the tribunal is satisfied that there are special circumstances that prevented the application for review being made within the 28‑day period after the notice was given, that period may be extended (subsection 95N(2) of the Registration and Collection Act).

4. The tribunal finds that notice of the decision to disallow her objection was provided to Ms Forstater dated 8 April 2022. Ms Forstater lodged her application for review with the tribunal on 20 May 2022, and therefore the review application was lodged outside the 28‑day period.

5. The tribunal does not find that there were special circumstances which prevented Ms Forstater from lodging the application in time and therefore the provision for extending the period for lodging the application is not satisfied.

6. The date of effect of the tribunal’s decision is 20 May 2022.

DECISION

The decision under review is set aside and, in substitution, the tribunal finds in relation to [the child] that Mr Thwaites has 86% care applying from 2 January 2022 and Ms Forstater has 14% care applying from 17 November 2021.

The tribunal refuses to make a determination under section 95N of the Child Support (Registration and Collection) Act 1988. The date of effect of the tribunal’s decision is 20 May 2022.