Henvillle and Tyrwitt (Child support)

[2024] AATA 376

Henvillle and Tyrwitt (Child support) [2024] AATA 376 (16 January 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/SC026414

APPLICANT:  Ms Henville

OTHER PARTIES:  Child Support Registrar

Mr Tyrwitt

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  16 January 2024

DECISION:

The decision under review is affirmed with the care period commencing from 11 August 2022.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – temporary accommodation was one-off arrangement and not reflective of pattern of care - decision under review affirmed

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 is about the percentage of care determinations for Ms Henville and Mr Tyrwitt in respect of their child [the child] (born August 2014).

2. On 11 September 2022 a new child support case was registered by Services Australia – Child Support (Child Support) with the liability commencing from 11 August 2022.  Child Support also made the decision to record the level of care under the assessment as Ms Henville providing 0 per cent care and Mr Tyrwitt providing 100 per cent of [the child] from 13 February 2016 but effective in the assessment from 11 August 2022.

3. On 9 January 2023 Ms Henville objected to this decision and on 9 March 2023 Child Support allowed the objection in part and made the decision that Ms Henville provides 0 per cent care and Mr Tyrwitt provides 100 per cent care of [the child] from 2 July 2020 but effective in the assessment from 11 August 2022 (the objection decision).

4. As Child Support determined there were no special circumstances preventing Ms Henville from lodging her objection within the relevant timeframe the objection decision was applied to the assessment from 9 January 2023 rather than an earlier date.

5. On 14 July 2023 Ms Henville applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

6. The Tribunal conducted a hearing into the application on 16 January 2024.  Ms Henville and Mr Tyrwitt gave evidence on affirmation by Microsoft Teams audio.  An official interpreter was present and provided interpretation on affirmation by Microsoft Teams audio.

7. Child Support provided the Tribunal and the parties with papers relevant to the matter (114 pages).

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).

2. Child Support makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent.  The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

3. If a new application is made for a parent to be assessed in respect of the costs of a child and the parent has a pattern of care for a child, Child Support determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period (sections 49 and 50 of the Act).

4. The issues which arise in this case are:

   ·     what is the percentage of care each parent has for [the child]; and

   ·     from what date should any care decision take effect?

CONSIDERATION

1. Ms Henville told the Tribunal there was no formal arrangement relating to the care of [the child] around the time the child support assessment commenced.  Ms Henville said up until June 2022 Mr Tyrwitt was the subject of an apprehended domestic violence order (ADVO) and when that ended the parents had been having shared care of [the child].

2. Ms Henville explained that Mr Tyrwitt had been living with his mother at that time and [the child] moved between homes.  Ms Henville estimated she was having 40 per cent care.

3. Ms Henville said in around August 2022 Mr Tyrwitt was no longer able to stay with his mother and she then had care of [the child] for a few days until Mr Tyrwitt found somewhere else to live.  Ms Henville said Mr Tyrwitt had taken [the child] with him so he could obtain temporary accommodation.  She said the pattern of shared care then resumed until early 2023 when Mr Tyrwitt began having 100 per cent care of [the child].  Ms Henville added that she had never agreed to this new care arrangement and wanted a return to shared care.

4. The Tribunal notes in evidence a copy of a final ADVO dated 25 June 2020.  The protected persons are Ms Henville and [the child].  The ADVO is to be followed until 24 June 2022.

5. Ms Henville reiterated that Mr Tyrwitt was not having 100 per cent care of [the child] from the time the child support assessment commenced on 11 August 2022.

6. The Tribunal notes in evidence a third-party statement from [Dr A] dated 14 January 2023 stating that Ms Henville often takes [the child] to the clinic.

7. Mr Tyrwitt told the Tribunal he agreed there was no formal arrangement in place regarding the care of [the child] and said communication between the parents was poor.  Mr Tyrwitt said that he had effectively been having 100 per cent care of [the child] since the ADVO had ended on 24 June 2022 although Ms Henville did have some occasional overnight care.

8. Mr Tyrwitt explained that he had been living with his mother but left her home in August 2022.  Mr Tyrwitt said he applied for a child support assessment around the time he moved out because [the child] had accompanied him and he needed the financial assistance.  Mr Tyrwitt said he and [the child] initially lived at their local temple but he found temporary accommodation very quickly and lived there for approximately three months.  Mr Tyrwitt added that Ms Henville had no care of [the child] once they had stopped living with his mother.

9. Mr Tyrwitt said he had never stopped [the child] from staying with Ms Henville but [the child] simply did not want to.  Mr Tyrwitt said he was respecting [the child]’s wishes.  Mr Tyrwitt said he had also provided statements from third parties in relation to his care of [the child].

10. The Tribunal notes in evidence third-party statements from [B], [C], [D], [Mr E] and [F].  The statements from [B], [C] and [D] who are friends of Mr Tyrwitt all say that he looks after [the child] by himself.  The statement from [Mr E], Assistant Principal at [Public School], says Mr Tyrwitt has been the parent who has done pick-ups and drop-offs for more than a year.  The statement from [F], Regional Coordinator for [Organisation], is dated 28 September 2022 and says Mr Tyrwitt and [the child] have been “residing at our temporary accommodation” since 8 September 2022.

11. The Tribunal is satisfied that an application for a child support assessment was made by Mr Tyrwitt on 11 August 2022 and accepted by Child Support on 11 September 2022.

12. Ms Henville has told the Tribunal that she was having shared care of [the child] immediately prior to Mr Tyrwitt applying for the child support assessment on 11 August 2022.  Ms Henville has explained that when Mr Tyrwitt stopped living with his mother she had 100 per cent care of [the child] for a short period and then [the child] left her care and lived with Mr Tyrwitt so Mr Tyrwitt could access temporary accommodation.  Although Ms Henville did not provide the exact dates she has said the pattern of shared care then resumed at some time later.  The third-party statement from [Dr A] makes no reference to the care of [the child].

13. Mr Tyrwitt has argued that at least since the ADVO expired he has been having the majority of care although he concedes Ms Henville was having some overnight care from 25 June 2022.  Mr Tyrwitt maintains, however, that after moving out of his mother’s home he has been having 100 per cent care of [the child].  Mr Tyrwitt was also unclear about exactly when he stopped living with his mother but has said he and [the child] lived in their local temple for a short time before finding temporary accommodation.

14. The third-party statements from [B], [C] and [D] indicate Mr Tyrwitt has been having 100 per cent care of [the child] but are not precise about the date this care commenced.  The third-party statement from the Assistant Principal of the school [the child] attends only confirms that Mr Tyrwitt does pick-ups and drop-offs. The Tribunal places particular weight on the third-party statement from [F], however, as it confirms Mr Tyrwitt has had 100 per cent care of [the child] at least since 8 September 2022 as they have been living together in temporary accommodation.

15. A care determination is based on the care a parent has provided or is likely to provide for the child in a care period.  In making a determination in relation to the care of [the child] the Tribunal must form a judgement about the probable care from 11 August 2022 when the child support assessment commenced.

16. In light of the evidence provided, the Tribunal is satisfied that, on balance, Ms Henville provides 0 per cent care and Mr Tyrwitt provides 100 per cent care of [the child] from 11 August 2022. 

17. While Ms Henville may have had some care during the four weeks from the time the child support assessment commenced to 8 September 2022 when Mr Tyrwitt and [the child] began living in temporary accommodation, the Tribunal considers this would have been a one-off arrangement and not reflective of the pattern that had been established.

18. In making this determination the Tribunal notes, however, it is open to either parent to notify of any subsequent change in the pattern of care.

DECISION

The decision under review is affirmed with the care period commencing from 11 August 2022.