Thaxter and Thaxter (Child support)

[2024] AATA 793

Thaxter and Thaxter (Child support) [2024] AATA 793 (1 March 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/PC026839

APPLICANT:  Mr Thaxter

OTHER PARTIES:  Child Support Registrar

Ms Thaxter

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  01 March 2024

DECISION:

The decision under review is affirmed with the care period commencing from 25 July 2022.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – 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 Mr Thaxter and Ms Thaxter in respect of their children [Child 1] (born March 2010), [Child 2] (born July 2011), [Child 3] (born February 2013) and [Child 4] (born June 2016).

2. On 23 August 2022 a new child support case was registered by Services Australia – Child Support (Child Support) with the liability commencing from 25 July 2022.  Child Support also made the decision to record the level of care under the assessment as Mr Thaxter having 50 per cent care and Ms Thaxter having 50 per cent care of [Child 1], [Child 2], [Child 3] and [Child 4] from 16 August 2021 but effective from 25 July 2022.

3. On 3 February 2023 Mr Thaxter objected to this decision and on 27 June 2023 Child Support disallowed the objection (the objection decision).

4. On 22 September 2023 Mr Thaxter applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

5. The Tribunal conducted a hearing into the application on 1 March 2024.  Mr Thaxter appeared before the Tribunal and gave evidence on affirmation.  Ms Thaxter gave evidence on affirmation by conference telephone.  Child Support provided the Tribunal and the parties with papers relevant to the matter (141 pages).

6. The Tribunal also received additional information from Mr Thaxter (A1–A11) and Ms Thaxter (B1–B22) prior to the hearing and copies were distributed to the parties.

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 [Child 1], [Child 2], [Child 3] and [Child 4]; and

   ·     from what date should any care decision take effect?

CONSIDERATION

1. Mr Thaxter told the Tribunal there was no formal arrangement in place relating to care of the children at the time the child support assessment commenced.  Mr Thaxter said the pattern of care was based around his work roster and he always had care when he was home.  Mr Thaxter explained that he had an even time roster working from Tuesday to Tuesday before then having a week off.  Mr Thaxter said he had care of the children during his week off plus additional school holiday care throughout the year.

2. Mr Thaxter said when first contacted by Child Support about the child support assessment he was driving to work and initially agreed that care was 50-50 between the parents.  Mr Thaxter said he had neglected to take into account his regular holiday care.

3. Mr Thaxter informed the Tribunal his care of the children during the school holiday periods was at least two weeks every year.  Mr Thaxter said he would usually arrange this holiday care during his rostered time off and then take additional annual leave.  Mr Thaxter pointed out this had taken place ever since the parents separated.

4. The Tribunal notes in the evidence provided by Mr Thaxter an outline of his holiday care since the parents separated.  It shows Mr Thaxter has had additional care of the children at least twice a year.  The Tribunal further notes in evidence from Child Support a copy of his work roster for 2022 and 2023 which shows a work pattern of seven on-seven off.

5. Mr Thaxter told the Tribunal he has had the following holiday care since the child support assessment commenced on 25 July 2022:

   ·     17 January 2023 to 26 January 2023 – 10 day holiday to [Town 1] with the children, which included annual leave of three days;

   ·     30 May 2023 to 6 June 2023 – had the youngest three for three days before departing for Melbourne with [Child 1] on 2 June 2023 for a father-son [sport] trip, which included annual leave of seven days;

   ·     8 December 2023 to 22 January 2024 – driving holiday to the east coast for Christmas.

6. Mr Thaxter also provided the Tribunal with a copy of his itinerary for his holiday to Melbourne.  It shows a departure on 2 June 2023 and a return on 5 June 2023.  Mr Thaxter explained that he dropped the youngest children to Ms Thaxter the night before leaving Perth for Melbourne with [Child 1].

7. Ms Thaxter told the Tribunal at the time of separation the parents had arranged to share care of the children on a week about basis but she had never agreed to Mr Thaxter having additional holiday care.  Ms Thaxter said she found their care arrangement to be very one-sided as Mr Thaxter simply took the children on holidays without consulting her first.  Ms Thaxter said she did not dispute that Mr Thaxter had this extra holiday care.

8. Ms Thaxter said there were also occasions when she had the children longer than normal.  Ms Thaxter also pointed out that as a school teacher she had annual leave of 12 weeks each year but Mr Thaxter would not agree to her having additional holiday care with the children.

9. The Tribunal notes in evidence from Child Support copies of text message exchanges between the parents in relation to care.  In one exchange dated 19 December 2022, it appears Mr Thaxter informs Ms Thaxter he is going to Perth on Friday for the night and states the children would rather stay the night with her.  Mr Thaxter sates he will drop the children off Friday morning to which Ms Thaxter responds, “That should be fine”.  In a second exchange dated 12 February 2023 Mr Thaxter states he is “working an extra day this week” and will not be home “until Wednesday”.

10. The Tribunal is satisfied that an application for a child support assessment was made by Ms Thaxter on 25 July 2022 and accepted by Child Support on 23 August 2022.

11. Mr Thaxter submits that when the child support assessment commenced he was having week about care of [Child 1], [Child 2], [Child 3] and [Child 4] plus additional holiday care of at least two weeks every year.  Ms Thaxter agrees that care was arranged between the parents on a week about basis, however, she never agreed to Mr Thaxter having additional holiday care.  Ms Thaxter does not dispute this extra holiday care took place.

12. A care determination is based on the care a parent has provided or is likely to provide for the children in a care period.  A care period is generally for 12 months and the Tribunal is satisfied the relevant care period commenced on 25 July 2022.  In making a determination in relation to the care of [Child 1], [Child 2], [Child 3] and [Child 4] the Tribunal must form a judgement about the level of care from 25 July 2022, being the date the assessment started.

13. Mr Thaxter has provided evidence of additional care between 17 January 2023 to 26 January 2023 and between 30 May 2023 to 6 June 2023.  His work roster for 2023 indicates that during the first holiday his ordinary time off was from 17 January 2023 to 23 January 2023, which means he took annual leave of three days.  His work roster for 2023 indicates that during the second holiday his ordinary time off was from 6 June 2023 to 12 June 2023, which means he took annual leave of seven days.  During this time, he had care of the youngest children for an extra three nights and [Child 1] for an extra four nights.  Text message exchanges between the parents indicate Ms Thaxter had additional care of two nights during the 12-month care period.

14. In light of the evidence provided, the Tribunal is satisfied that in the 12-month care period commencing on 25 July 2022 Mr Thaxter had additional care of [Child 2], [Child 3] and [Child 4] of six nights and additional care of [Child 1] of seven nights.  Ms Thaxter had additional care of [Child 1], [Child 2], [Child 3] and [Child 4] of two nights.

15. The Tribunal finds that Mr Thaxter provides care of [Child 2], [Child 3] and [Child 4] of 187 nights or 52 per cent care and Ms Thaxter provides care of [Child 2], [Child 3] and [Child 4] of 178 nights or 48 per cent care.  The Tribunal finds that Mr Thaxter provides care of [Child 1] of 188 nights or 52 per cent care and Ms Thaxter provides care of 177 nights or 48 per cent care.

16. When a parent has a percentage of care between 48 per cent care and 52 per cent care there is no change in the cost percentage.[1]  Although the objections officer found care to be 50-50 care and the Tribunal has found Mr Thaxter provides 52 per cent care and Ms Thaxter provides 48 per cent care of the children, this will not impact the amount of child support Mr Thaxter is assessed to pay.  As the decision of the Tribunal has no practical effect, the Tribunal chooses not to disturb the decision made by the objections officer.

    [1] The cost percentage represents the percentage of a child’s costs a parent meets directly through care.  From 48 per cent care to 52 per cent care, the cost percentage remains the same.

17. 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 25 July 2022.