Thorby and Verney (Child support)

[2023] AATA 194

Thorby and Verney (Child support) [2023] AATA 194 (10 January 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/BC024981

APPLICANT:  Mrs Thorby

OTHER PARTIES:  Child Support Registrar

Mr Verney

TRIBUNAL:Member C Breheny

DECISION DATE:  10 January 2023

DECISION:

The decision under review is varied so that Mrs Thorby has 50% and Mr Verney has 0% care of [Child 1] from 10 February 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 varied

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. Mrs Thorby and Mr Verney are the separated parents of [Child 1], born November 2005. Since 5 June 2021 child support has been payable on the basis that Mrs Thorby has 58% and Mr Verney has 42% care of [Child 1]. Mrs Thorby is assessed as liable to pay child support to Mr Verney.

2. On 20 May 2022, Mrs Thorby contacted Services Australia – Child Support (Child Support) to notify a care change. She stated that she had 100% care of [Child 1] from 17 May 2022 but noted that the care change probably occurred three months earlier. Mr Verney disputed the care change, stating that he continued to financially support [Child 1]. On 16 August 2022, a decision was made that Mrs Thorby had 100% care of [Child 1] from 17 May 2022.

3. On 6 September 2022, Mr Verney objected to the decision stating that Mrs Thorby did not have 100% care of [Child 1], as [Child 1] also spends several nights per week with his ex-partner, and this should be reflected in the assessment. On 3 November 2022, a Child Support objections officer decided to partly allow the objection. The objections officer found that Mrs Thorby had 50% care and Mr Verney had 0% care of [Child 1] from 17 May 2022.

4. On 4 November 2022, Mrs Thorby applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal for an independent review of the objection decision. The application was heard on 10 January 2023. Mr Verney and Mrs Thorby attended the hearing by telephone and gave evidence on affirmation. I had before me the statement and documents provided by Child Support pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, received on 21 November 2022 (documents numbered 1–103).

ISSUES AND CONSIDERATION

1. The relevant legislation is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988.

2. Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that the parents will have in relation to the children. Section 54F of the Act provides that an existing care percentage decision must be revoked if Child Support is notified, or becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded and that a care change would alter the cost percentage used for the parent in the administrative assessment. Section 54F is subject to section 54G of the Act and section 55C of the Act contains a table that is used to work out a person’s 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. In this case, records indicate that child support liability had been calculated on the basis that Mrs Thorby had 58% and Mr Verney had 42% care of [Child 1] from 5 June 2021. Records also show that Mrs Thorby contacted Child Support on 20 May 2022 to advise that a care change had occurred (folio 8).

2. The issue for me to determine is whether there was a change to [Child 1’s] care arrangements such that a new care determination ought to be made, and, if so, the date of effect of the new care determination.

Mrs Thorby’s evidence

1. Mrs Thorby said she accepted that [Child 1] spends 50% of the time with her and 50% of the time with Mr Verney’s ex-partner ([Ms A]). She and [Ms A] are “co-parenting” [Child 1]. Mr Verney is not involved in this arrangement. It was therefore correct that she had 50% care and Mr Verney had 0% care of [Child 1].

2. She was concerned however that this care change occurred in February 2022 and not May 2022, as found by the objections officer. Mrs Thorby said that [Ms A] confirmed she and Mr Verney separated on 10 February 2022 but neither [Ms A] nor Mr Verney advised her of this change until about 17 May 2022.

3. Mrs Thorby said that she contacted Child Support as soon as she was made aware of the change. At the time she used the “care change” date of 17 May 2022, but she told the Child Support worker that the care change probably occurred about three months prior to that date. She provided evidence of the date [Ms A] and Mr Verney separated to the objections officer and she could not understand why this information had not been taken into consideration.

4. Mrs Thorby submitted a letter from [Ms A] on 8 July 2022 (folio 25) in which [Ms A] states:

   I have care of [Child 1] for half the month and she is in her mother’s care for the other half of the month…

   I make general decisions on a day-to-day basis when [Child 1] is in my care such as if she goes out with friends, etc. More complex decisions are made by [Mrs Thorby] such as health and dental…

   Mr Verney has not made any decisions regarding [Child 1’s] emotional, social or financial wellbeing since our relationship ended. He has occasionally had lunch/dinner with [Child 1] but has not had [Child 1] overnight since he moved out. At this point in time [Child 1] is not on speaking terms with her father.

5. [Ms A] also confirmed in a text message to Mrs Thorby on 6 July 2022 that the “official date of separation was 10 February 2022” (folio 40).

Mr Verney’s evidence

1. Mr Verney agreed that he moved out of the home that he had shared with [Ms A] on 10 February 2022. He found an apartment and offered that [Child 1] could stay with him whenever she wanted, but [Child 1] thought the apartment was “too small”. [Ms A’s] home is also closer to [Child 1’s] school.

2. Mr Verney submitted that although he moved out of the home, he should still be regarded as having care of [Child 1], as he continues to financially support her. He pays [Child 1’s] school fees, recently bought her a car and generally gives her some money whenever she asks for it (e.g. for petrol, phone or other items).

3. Mr Verney said that he has always travelled a lot for work and [Ms A] would often be responsible for the day-to-day care when [Child 1] was staying with them. He also did not think that he and [Ms A] had ended their relationship when he moved out in February 2022. He was hoping for a reconciliation. It only became clear to him that [Ms A] did not wish to continue the relationship on or about 6 May 2022 ([Child 1’s] school’s semi-formal event). This is when he advised Mrs Thorby of the care change.

4. Mr Verney stated that he continues to provide financial support for [Child 1], whenever he is asked and he will continue to do so in the future. There has not been any change in his willingness to support [Child 1]. To support his evidence, Mr Verney submitted a letter from [Ms A] dated 16 September 2022 (folio 74). It states:

   [Mr Verney] and I were in a relationship until February 10, 2022. Since that time, as [Mr Verney] travels frequently for work and [Child 1] is settled at [my home] she has spent 50% of the time in my care. [Mr Verney] has been transferring $100 per week to help with the cost of raising [Child 1] as well as $50 per week for private health insurance. He also pays the school fees…

Conclusion

1. Care is generally calculated over a “care period”, which is a period that the Registrar or the Tribunal considers to be appropriate having regard to all the circumstances of the matter (section 50 of the Act). The government’s policy in this regard, as set out in Chapter 2.2.1 of the Child Support Guide, is that a care period is generally a 12‑month period from the day on which the actual care for a child changed, but it may be a shorter period depending on the circumstances of the case.

2. In this case, Mrs Thorby notified a care change on 20 May 2022. She said the care change occurred on 17 May 2022 but later submitted that the care change occurred on 10 February 2022. Mr Verney contended that care did not change until about May 2022, when he realised that his relationship with [Ms A] had ended.

3. There is no statutory definition of “care”. However, I had regard to the case of Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959 which is instructive on what constitutes care. Hughes FM stated at paragraph 56, that it is necessary to consider the following:

   a.     To what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra curricular activities?

   b.     To what extent does the person make arrangements for others to meet the needs of the child?

   c.     To what extent does the person pay for the costs of meeting the needs of the child?

   d.     To what extent does the person otherwise provide financial support for the child?

   e.     To what extent does the child provide for his or her own needs or have those needs met from another source?

   f.   To what extent is the child financially independent or financially supported from another source?

4. Based on the evidence before me I am persuaded that both Mrs Thorby and [Ms A] are meeting all of [Child 1’s] needs. They provide food, accommodation, emotional support and make all the decisions relating to her care. [Ms A] stated in her letter of July 2022 that Mr Verney has not been involved in any decision making since their relationship ended.

5. I acknowledge that Mr Verney pays [Child 1’s] private school fees and has bought her a car. Mrs Thorby stated that Mr Verney chose to send [Child 1] to a private school and (in another decision) Child Support had determined that she (Mrs Thorby) was not liable to contribute to the school fees. Mrs Thorby noted that she also has private health insurance for [Child 1], and it was Mr Verney’s choice to pay for these additional costs. There was no requirement that he had to meet these expenses.

6. Mr Verney further contributes $100 per week for [Child 1’s] day-to-day expenses when she stays with [Ms A]. This is commendable however I am not persuaded that he is the primary source of financial support for [Child 1]; instead, it appears that Mrs Thorby and [Ms A] are meeting most of [Child 1’s] costs. I am thus not persuaded that Mr Verney’s financial contribution constitutes “care”.

7. Mr Verney left the home he shared with [Ms A] on 10 February 2022. He submitted however that this did not constitute a change in the care arrangement as he generally travels frequently for work and was thus not always available to assist [Ms A]. He also did not believe that their relationship was over at the time he moved out.

8. [Ms A’s] evidence is that the relationship ended on 10 February 2022 and that Mr Verney had no input into [Child 1’s] day-to-care from that date. I give significant weight to [Ms A’s] evidence and I therefore find that a care change occurred on 10 February 2022 such that Mr Verney had 0% care and Mrs Thorby had 50% care of [Child 1].

9. In accordance with section 55C of the Act this changes Mr Verney’s cost percentage from 39% to nil and Mrs Thorby’s cost percentage from 61% to 50% thus the existing care percentage for [Child 1] must be revoked.

10. Subsection 54F(1) of the Act provides (among other things) that in circumstances where the current care decision has been made under sections 49 or 50 of the Act, the Registrar (or Tribunal) is satisfied a) that the new level of care is not consistent with the existing determination of care, b) that the actual care of the child results in a change to the rate of child support payable by one parent to the other due to a change in the cost percentages and c) section 54G of the Act is not applicable, then the current care decision must be revoked.

11. I therefore first considered whether section 54G of the Act applies in this case and revocation of the existing care determination is to be made pursuant to this provision. The conditions for revocation are as follows:

    ·a parent was to have at least regular care (14%) of the child based on the existing care determination under section 50, but they have had no actual care or less than regular care of the child, despite the other parent making the child available;

    ·the other parent’s existing percentage of care was determined under section 50 (the person had an established pattern of care); and

    ·the other parent notified the Registrar or the Secretary within a reasonable time[1]  that the parent with the reduced care has no care or less than regular care.

    [1] Explanatory Memorandum to the Bill for the Child Support and Family Assistance Legislation Amendment(Budget and Other Measures) Act 2010  states that: “Generally, a reasonable period will be if the Registrar or Family Assistance Secretary is notified within 28 days of the other responsible person becoming aware that the first responsible person never established the pattern of at least regular care, or that that person ceased their the previously established pattern of care.”

12. In this case I am satisfied that the conditions of section 54G are met. Mr Verney was to have at least regular care based upon the existing care determination made under section 50 of the Act, however from 10 February 2022 he had no actual care of [Child 1] despite [Child 1] being available (she was staying at his former home).

13. Even though Mrs Thorby notified the care change that occurred on 10 February 2022 more than 28 days later on 20 May 2022, she had only become aware of the care change on 17 May 2022 and she notified Child Support within three days of becoming aware of the care change. I am satisfied that this was a reasonable time and section 54G of the Act applies in this case. This means both existing care determinations must be revoked.

14. The date of revocation is determined by subsection 54G(2) of the Act. In this case I have concluded that Mr Verney did have an established pattern of care in accordance with the first care determination but that pattern of care ceased as of 10 February 2022. This means that the existing determination is to be revoked pursuant to paragraph 54G(2)(b), at the end of the day before the 10 February 2022, that is 9 February 2022 and the new care determination of 50% care to Mrs Thorby and 0% care to Mr Verney commences from 10 February 2022.

15. I have reached a different conclusion to that of the objections officer, and I will vary the decision under review accordingly.

DECISION

The decision under review is varied so that Mrs Thorby has 50% and Mr Verney has 0% care of [Child 1] from 10 February 2022.