Peterson and Thorburn (Child support)

[2019] AATA 5018

Peterson and Thorburn (Child support) [2019] AATA 5018 (11 September 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC016925

APPLICANT:  Mr Peterson

OTHER PARTIES:  Ms Thorburn

Child Support Registrar

TRIBUNAL:Member P Sperling

DECISION DATE:  11 September 2019

DECISION

The tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – decision to revoke existing percentage of care determinations and make new determinations - 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 Peterson and Ms Thorburn are the parents of [Child 1] and [Child 2] (the children), who were four years and seven years of age respectively at the time of the hearing. This application is about the percentages of care for the children used in the child support assessment from 8 April 2019.

2.    The Department of Human Services—Child Support (the Department) recorded that from 29 September 2016 Ms Thorburn had a percentage of care of the children of 80% and Mr Peterson had a percentage of care of 20%.

3.    On 8 April 2019 Mr Peterson contacted the Department and advised that the care of the children had changed on 8 April 2019, following a final court order made by consent on that date, such that from 8 April 2019 he was having care for the children for 172 nights, or 47% and that Ms Thorburn was having care for 193 nights or 53%. On 29 April 2019 the Department made a new determination that the percentage of care of the children was 47% to Mr Peterson and 53% to Ms Thorburn from 8 April 2018.

4.    On 6 May 2019 Ms Thorburn lodged an objection to this change of care decision, on the basis that care of the children as set out in the court order provides for Mr Peterson to have 33% care and Ms Thorburn to have 67% care of the children.

5.    On 31 May 2019, an objections officer considered the matter and partly allowed the objection, determining that the care of the children changed from 8 April 2019 such that from this date the percentage of care of the children is 38% care to Mr Peterson and 62% care to Ms Thorburn.

6.    On 12 July 2019 Mr Peterson lodged an application for review by this tribunal. The matter was heard on 11 September 2019. Both Mr Peterson and Ms Thorburn participated in the hearing by conference telephone and gave sworn evidence. The Child Support Registrar did not attend the hearing. In making its decision the tribunal took into consideration the documents provided by the Department, which were also sent to Mr Peterson and Ms Thorburn (229 pages). Additional information provided by Mr Peterson (A1 to A22) was also exchanged.

ISSUES

7.    The relevant law in this case is in the Child Support (Assessment) Act 1989 (the Act). A parent or non-parent carer’s percentage of care for a child is determined based on the care he or she is likely to provide for the child, or in this case the children, in a care period. The percentage of care is used in a child support assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they are providing for that child.

8.    The issues for the tribunal to determine in this case are:

·Whether there should be a change to the percentages of care in respect of the children used in the child support assessment for the relevant period; and if so

·What percentages of care should be used; and

·What is the date of effect of the change?  

CONSIDERATION

9.    A new determination of a percentage of care for a child must be made where an existing determination has been revoked and the Registrar, or the tribunal standing in the shoes of the Registrar, is satisfied that each person has had, or is likely to have, no pattern of care, or that the person has had, or is likely to have, a pattern of care (sections 49 and 50 of the Act).

10.  As set out above, Mr Peterson notified the Department on 8 April 2019 of a change in the care of the children from 8 April 2019. The parties do not dispute that there was a change from that date on the basis of care arrangements set out in the court orders delivered on 8 April 2019. However, both Mr Peterson and Ms Thorburn disagree about the extent of the care each has under the court orders. Mr Peterson said that the Department had incorrectly calculated the care to be provided by each parent under the court orders.

11.  At the hearing the tribunal discussed the care, and in particular the details of the court orders, with the parties. There was agreement that a change in the care which was occurring had taken place from 8 April 2019 and that the care arrangement for both children was the same following the term times for the eldest child’s school.

12.  Section 54F of the Act sets out the circumstances in which a determination of a percentage of care must be revoked. It provides as follows:

54F     Determination must be revoked if there is a change to the responsible person's cost percentage

(1) If:

(a)  a determination of a responsible person's percentage of care (the existing percentage of care) for a child has been made under section 49 or 50; and

(b)  if section 51 or 52 applied in relation to the responsible person--the interim period for the determination has ended; and

(c)  the Registrar or the Family Assistance Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person's existing percentage of care for the child; and

(d)  the Registrar is satisfied that the responsible person's cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person's percentage of care for the child; and

(e)  section 54G does not apply; …

13.  In this case, the tribunal found for the purpose of paragraph 54F(1)(a) that there were existing percentage of care determinations for Mr Peterson and Ms Thorburn made under section 49 or 50 in relation to the children. Section 51 or 52 did not apply to the existing determinations in this case.

14.  In order for a percentage of care determination to be revoked under section 54F, the Registrar must be satisfied that the care of the child that is actually taking place does not correspond with the responsible person’s existing percentage of care for the child, and that the responsible person’s cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person’s percentage of care for the child.

15.  At the date of the notification of the change in the care of the children, on 8 April 2019, Ms Thorburn was assessed as having a percentage of care of the children of 80% and Mr Peterson was assessed as having a percentage of care of the children of 20%.  

16.  In determining a responsible person’s percentage of care, the tribunal must have regard to the ‘pattern of care’. This term is not defined in the legislation. The tribunal had regard to the policy as set out in the Department’s Child Support Guide (the Guide), at Part 2.2.2 Care Determinations and Changes in Care.

17.  The tribunal notes that Mr Peterson notified the Department on 8 April 2019 that the actual care of the children did not correspond with the percentage of care under the existing determinations. For the purpose of paragraph 54F(1)(c), the tribunal considered the actual care of the children during the care period, having regard, also, to whether there had been a change in the pattern of care. Actual care is generally worked out based on the number of nights the child was or is likely to be in the care of the person (subsection 54A(1)). The tribunal was satisfied that this is the appropriate basis for working out the care in this case.

18.  Actual care is assessed over a care period to determine the care percentages for each parent or non-parent carer. As ‘care period’ is not defined in the legislation the tribunal had regard to the policy as set out in the Guide at Part 2.2.2 Care Determinations and Changes in Care. The Guide states that a care period is generally a 12-month period from the day on which the actual care of a child changed. However, there are some circumstances where determining the care over a shorter or longer care period may be more appropriate and the specific circumstances of each case are taken into account to determine the appropriate care period.

19.  In this case the tribunal concluded that a care period of 12 months is appropriate, taking into account the overall pattern of care provided for in the court orders. The tribunal therefore decided to calculate the care for the care period from 8 April 2019 to 7 April 2020.

20.  During the hearing Mr Peterson and Ms Thorburn advised the tribunal that the care arrangement for the April 2019 school holidays was as set out in the court orders and that at the time the court orders were made and when Mr Peterson notified the Department of the change in care, both parents intended to follow the court orders in terms of determining who had care of the children and when.

21.  Accordingly, the tribunal was satisfied that the care arrangements set out in the court orders, represented the care that was likely to be provided for the children at the time the care arrangements changed.

22.  During the hearing Mr Peterson confirmed the tribunal that at the time he notified that there was a change in care he expected that care of the children would follow the court orders exactly. He said that he thought the court orders provided him with 50% care during all of the school holidays. He also stated that page A9 of his additional submission contains a roster setting out care arrangements for both parents, which he said had been prepared and signed off by both his and Ms Thorburn’s solicitors as complying fully with the care arrangements set out in the court orders. He noted that this roster shows that he has 42% care of the children. On this basis he believes that the Department’s determination of the percentages of care is incorrect and that he has 42% care of the children under the court order.

23.  During the hearing Ms Thorburn also confirmed that, at the time the court orders were made, she expected that care of the children would follow the court orders exactly. She disagreed with Mr Peterson’s interpretation of the court orders in respect of school holidays, pointing out that the court orders do not state that both parents have 50% care during the school holidays as claimed by Mr Peterson; rather she said the court orders state that Mr Peterson has care for the first week of the school holidays and Ms Thorburn has care for the remainder of the school holidays, which is sometimes more than one week or 50% of school holiday care. When asked about the roster provided by Mr Peterson on page A9 of the papers, Ms Thorburn said that she thought that the dates of care on the roster were in accordance with the court orders but that the total percentage calculation was incorrect. She said that, according to her calculations, she has 64% care of the children and Mr Peterson has 36% care of the children under the court orders. The tribunal notes that Ms Thorburn did not provide any spreadsheet, roster or written evidence setting out how these percentages had been derived.

24.  During the hearing the tribunal outlined its understanding of each clause in the court orders related to the children’s living arrangements. Neither Ms Thorburn nor Mr Peterson raised any concerns with the tribunal’s interpretation of the relevant clauses in the court orders which covered the following care arrangements:

·Clause 4(a) provides that during school terms the father has care in a fortnightly cycle as follows:

-in week one from conclusion of school on Thursday until commencement of school on Friday i.e. Thursday night only;

-in week two from conclusion of school on Thursday until commencement of school the following Monday i.e. Thursday, Friday, Saturday and Sunday nights;

-this effectively means that in school term the father has care every Thursday night and on Friday, Saturday and Sunday nights every second week.

·Clause 4(c)(A) relates to the 2019/20 Christmas holidays and provides that the father has care as follows:

-from end of school term until 7pm Christmas Eve;

-nights of 27, 28, 29, 30, 31 December 2019;

-nights of 1, 2 January 2020;

-nights of 10, 11, 12, 13, 14, 15, 16 January 2020;

-50% care for balance of holidays from 24 January 2020 to two nights prior to the resumption of school (and if there are an uneven number of nights, the additional night is to be given to Ms Thorburn).

·Clause 4(d) relates to Father’s Day and Mother’s Day and provides that the parents have care as follows:

-Ms Thorburn has care on the Saturday and Sunday nights of the Mother’s Day weekend;

-Mr Peterson has care on the Saturday and Sunday nights of the Father’s Day weekend.

·Clause 5(c) states that the time during school terms is suspended during all school holidays and will resume in accordance with the usual cycle as if the holiday period had not intervened.

25.  During the hearing both parents confirmed that the school holidays applying in relation to the children for 2019 and the relevant part of 2020 were as follows:

·2019:

-Term 1 ends Friday 5 April

-Term 2 from Tuesday 23 April to Friday 27 June

-Term 3 from Monday 15 July to Friday 20 September

-Term 4 from Tuesday 8 October to Wednesday 18 December

·2020:

-Term 1 from Wednesday 29 January to Friday 27 March

-Term 2 commences Tuesday 14 April

26.  The tribunal closely reviewed the roster provided by Mr Peterson prior to the hearing which he said sets out when he is to have care of the children between April 2019 and April 2020.  The tribunal also prepared its own care calendar based on the tribunal’s interpretation of the court orders. After careful examination of the court orders and all of the information pertaining to this matter, the tribunal is satisfied that, notwithstanding any agreement between relevant solicitors, the roster provided by Mr Peterson does not align with the care arrangements as set out in the court orders. The tribunal is also satisfied that the calculation of 42% care of the children for Mr Peterson, as shown on the roster he provided, is also incorrect.

27.  Instead, the tribunal finds that for the care period 8 April 2019 to 7 April 2020 Mr Peterson has care of the children for 139 nights or 38% care of the children and Ms Thorburn has care of the children for 226 nights, or 62% care of the children.

28.  Taking into account these calculations, the tribunal is satisfied that from 8 April 2019 the pattern of care for the children changed and, in accordance with section 50, Mr Peterson’s percentage of care was likely to be 38% and Ms Thorburn’s percentage of care was likely to be 62%.

29.  The tribunal must also consider, for the purpose of paragraph 54F(1)(d), whether each person’s cost percentage would change if a new percentage of care determination were made under section 49 or 50 of the Act.

30.  The tribunal was satisfied, having regard to section 55C, that if new determinations of the percentage of care were made based on the actual care of the children that was occurring, the cost percentages would change.

31.  As all of the requirements of subsection 54F(1) are met, the tribunal was satisfied that the existing determinations of the percentages of care for the children must be revoked. Subsection 54F(2) of the Act sets out when the revocation of the determination takes effect. The date of effect depends on whether the Department was notified of the change within 28 days after it occurred. The tribunal notes that the care changed on 8 April 2019 and the Department was notified of this change on 8 April 2019.

32.  As the Department was notified within 28 days after the change in care occurred, revocation of the existing determinations takes effect in accordance with subparagraph 54F(2)(a)(ii), on 7 April 2019, being the day before the change in care.

33.  As the existing determinations must be revoked, new determinations of Ms Thorburn’s and Mr Peterson’s percentages of care for the children under section 49 or section 50 of the Act must be made. To make new determinations, the actual care of the children during the care period must be considered, as discussed above. Under section 50 of the Act, the tribunal determined that from 8 April 2019 Ms Thorburn’s percentage of care for the children was likely to be 62% and Mr Peterson’s percentage of care was likely to be 38%.

34.  Section 54B of the Act sets out the date of effect of the new determinations of percentage of care. The percentage of care applies to each day in a child support period on and from the application day. In accordance with subparagraph 54B(2)(c)(ii), the application day for the new determinations is the day after the revocation of the existing determinations. It follows, therefore, that the new determinations apply from 8 April 2019.

35.  As the tribunal has reached the same decision to that under review, that decision is affirmed.

DECISION

The tribunal affirms the decision under review.