Thornber and Patfield (Child support)

[2022] AATA 3377

Thornber and Patfield (Child support) [2022] AATA 3377 (24 August 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/CC023478

APPLICANT:  Ms Thornber

OTHER PARTIES:  Child Support Registrar

Mr Patfield

TRIBUNAL:Member D Cox

DECISION DATE:  24 August 2022

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the parents – earning capacity – a ground for departure not established – decision not to depart - 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. Ms Thornber and Mr Patfield are the parents of [Child 1], born [in] July 2013. 

2. [Child 1] is in the equal shared care of his parents.

3. For the period 1 July 2021 to 30 November 2022, Ms Thornber is assessed to pay an annual rate of child support of $1,530.  This assessment is based on a 2018–19 adjusted taxable income (ATI) of $76,221 for Ms Thornber and a 2020–21 ATI of $66,669 for Mr Patfield.

4. The case was registered on 24 July 2019 and is collectable by Services Australia – Child Support (Child Support) from that date.

5. This application for review relates to the first Change of Assessment (CoA) application lodged for this case (826717639).  This application for review does not relate to a number of CoA applications relating to the previous case, number 826717631, the last of which was a delegate’s decision on 9 August 2021.  On that occasion the CoA application was unsuccessful.

6. This application for review has been preceded by the following processes:

   ·      On 5 October 2021 Ms Thornber applied for a change of assessment on the basis of Reason 8A.

   ·      Mr Patfield disputed the CoA.

   ·      On 16 November 2021 the delegate refused to change the assessment after finding that Reason 8A was not established.

   ·      On 13 December 2021 Ms Thornber lodged an objection to the delegate’s decision.

   ·      On 18 February 2022 an objections officer disallowed the objection.

   ·      On 15 March 2022 Ms Thornber made an application to the Tribunal for a review of the objections officer’s decision.

   ·      On 25 July 2022 the Tribunal held a telephone directions hearing with Ms Thornber and Mr Patfield and issued written directions.

LEGISLATIVE FRAMEWORK

1. The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Act) and in the Child Support (Registration and Collection) Act 1988. The rate of child support payable by a liable parent is usually based on an administrative assessment under Part 5 of the Act. This requires the application of a statutory formula which takes into account factors such as the number and age of children, the level of care provided and the taxable income of each parent.

2. Under section 98B of the Act, if special circumstances exist, a liable parent or a carer entitled to child support may apply to the Child Support Registrar (the Registrar) in writing, requesting a departure from the administrative assessment in relation to a child.

3. Under section 98C of the Act, before making a departure determination on an application made under section 98B of the Act, the Registrar must be satisfied that in the special circumstances of the case, one or more grounds under subsection 117(2) of the Act exist, and that it would be just, equitable and otherwise proper to make a particular determination.

4. The issues for the Tribunal to determine in this case are:

   ·      Whether one or more of the grounds for departure referred to in subsection 117(2) of the Act exists; and, if so

   ·      Whether it would be just and equitable as regards the child, the liable parent, and the carer entitled to child support; and otherwise proper; to make a particular determination to depart from the administrative assessment of child support, pursuant to section 98C of the Act   

CONSIDERATION

Reason 8

1. In this case the Tribunal must consider whether the ground known as Reason 8 is established, pursuant to subparagraph 117(2)(c)(ia) and (ib) of the Act, which says, in the special circumstances of the case, the child support assessment results in an unjust and inequitable amount of child support to be paid because of the income, property and financial resources of either parent or because of the earning capacity of either parent .

2. Ms Thornber gave the following reasons for her application for review:

   I asked for a change of assessment under Reason 8 - a parent's income, property, financial resources, or earning capacity. Mr Patfield has significant assets that have not been taken into account in the decision.
   
   While on paper it would appear my income is higher, it consists of a superannuation pension and casual earnings. Mr Patfield by comparison is a permanent employee of [Employer 1] who has access to numerous entitlements on top of his salary that have not been considered and should be to draw a comparison between his income and my casual earnings. In addition, Mr Patfield’s considerable superannuation account continues to grow, while I am required to pay him child support as I have drawn down on my super to prop up my casual earnings. I ask that you review this decision and take a good look at Mr Patfield's full financial resources when assessing child support liability.

3. Ms Thornber also made the following closing submission at the hearing, in which she proposes that neither party pay child support:

   1. I am a sole parent who pays for the entire mortgage and all bills on my own.

   2. Mr Patfield is part of a two parent family with dual incomes and can therefore cost share expenses.

   3. I do not think it is just and equitable, that a sole parent, who is using her superannuation as an income stream and relying on casual earnings, is made to pay $162.17 per month (from Sept 2022) in child support in order to subsidise:

   a. A two-income family

   b. who are clearly reducing their work hours, despite advising that they are availing themselves of child care

   c. hiding financial resources

   d. are spending more than they are declaring as earnings

   e. can afford to contribute $813 a month into superannuation over and above the mandatory 2% -which represents 5 times the child support I have been assessed to pay Mr Patfield from September 2022.

   f. especially when care of [Child 1] is 50/50

   4. Mr Patfield lived off me when we were together despite having his own [grade] full-time salary and seems to expect me to support him and his new family some 9 years after our separation and later divorce

   5. I do not believe that the intention of child support is to continue to enable a parent to financially abuse another parent.

   6. Child support is for the care and upkeep of the child, not the parent or their family. Mr Patfield and his partner are responsible for supporting themselves and their children.

   7. As care of [Child 1] is 50/50 I am proposing that neither party pay child support moving forward unless there are significant expenses for [Child 1], for example medical and dental.

   8. I have demonstrated on a regular and consistent basis that [Child 1] is being cared for to a high standard while in my care, seeking routine medical and dental attention as well as meeting his daily needs and I will continue to do this.  

Reason 8A – income, property and financial resources

Income

1. The Tribunal ordered Ms Thornber to provide her 2021–22 income tax return or income statements for that year available from her myGov account.  She complied and the document shows gross income from three sources:

   ·      Employer A $440;

   ·      Employer B $55,888;

·      [Fund 1] superannuation income stream $32,759;

·      Totalling $83,446. 

1. The Tribunal ordered Mr Patfield to provide his 2021–22 income tax return.  He complied.  It shows gross income from his employer and dividends from six Australian listed companies:

   ·      [Employer 1] $53,401;

   ·      [Business 1] $250;

   ·      [Business 2] $21.86;

   ·      [Business 3] $93.06; and

   ·      [Business 4] $107.81;

   ·      Totalling $53,873.73.

2. The Tribunal finds that the information in paragraphs 14 and 15 of these Reasons for Decision are the most up-to-date and relevant information about the income of the parties for determining whether the administrative assessment will result in an unjust and inequitable level of financial support to be provided by the liable parent for the child.

Property - superannuation assets

1. Ms Thornber accepted a voluntary redundancy from [Employer 2] in April 2019 and elected to commence the [Fund 1] superannuation income stream referred to in paragraph 14 of these Reasons for Decision. 

2. According to Ms Thornber’s Statement of Financial Circumstances (SOFC) she has a current superannuation balance, presumably related to her [current] employment, of $43,995.

3. Ms [Thornber] pointed to a significant disparity between her superannuation balance and Mr Patfield’s, telling the Tribunal that Mr Patfield has not accessed his superannuation to support [Child 1] and continues to contribute 10% of his income to his [Fund 2] superannuation, describing that as a salary sacrifice arrangement which should be added to his assessable income for child support purposes.

4. The Tribunal ordered Mr Patfield to provide details of his superannuation.  He complied by providing a [superannuation fund] statement which shows, as at 30 June 2022, that he has a balance of $765,099.06.  Mr Patfield’s SOFC shows that he also has a $41,161.20 superannuation balance in a [Fund 3] retail fund.

5. Mr Patfield’s total superannuation balance of $806,206.20 is not available to him until he meets a condition of release, such as retirement, and is therefore not assessable for child support purposes.  

6. It is incorrect to characterise Mr Patfield’s superannuation contributions as a salary sacrifice arrangement.  He can elect to contribute between 2% and 10% of his gross income but the deduction of his contribution from his take home pay does not reduce his tax liability.

7. Where superannuation contributions are salary sacrificed, they are reported as fringe benefits and would be added to a person’s taxable income as part of their adjusted taxable income (ATI) for the purpose of assessing child support.   As Mr Patfield’s 2021–22 tax return shows, that does not apply in Mr Patfield’s case.

8. Mr Patfield confirmed that he is making superannuation contributions at a rate of 10% of his gross salary.  For the avoidance of doubt, the Tribunal recognises that those contributions are already being assessed for child support purposes.

9. Mr Patfield told the Tribunal that Ms Thornber made contributions at a rate of 10% of her gross income while she was [an occupation 1].  The Tribunal asked Ms Thornber whether she could confirm this and she said that she had originally made contributions of 10% to her [Fund 1] superannuation but after the breakdown of her marriage had only been able to make contributions of the minimum 2%.    

10. The disparity between Ms Thornber’s current superannuation balance of $43,995 and Mr Patfield’s current superannuation balances totalling $806,206.20 are due to Ms Thornber accessing her [superannuation] at a relatively young age. She held well-paying employment [with Employer 2] ([grade] with occasional [higher duties]).  She accepted a voluntary separation package and elected to take her [Fund 1] superannuation as a pension. 

11. CoA processes are not for the purpose of requiring early access to superannuation and separated couples’ relative superannuation balances are matters for the Family Court.

Property - housing assets

1. Ms Thornber provided the Tribunal with a submission in which she made reference to the relative values of her and Mr Patfield’s houses:
   
   Mr Patfield asserts that I have given an inaccurate valuation for my principal family home.
   
   This is the only recent formal valuation I have and was taken at the same time Mr Patfield’s home was valued, so I would argue that increases in value would be relative.
   
   I note that Mr Patfield has a multiple dwelling home, consisting of a 3-bedroom house, a 2-bedroom self-contained flat and a self-contained studio situated on a block size of 1310 m² (see documents [reference deleted]).
   
   By comparison my home is a 3-bedroom dual occupancy on a block size of 936m², mine is a smaller home on a smaller block.
   
   I note that Mr Patfield tried to assert to Member K Buxton in the prior AAT review that his home was part owned by his partner and Member K Buxton did not accept this assertion. I refer to my submission for review [reference] – specifically documents A32-A34.
   
   In addition, if this were the case Mr Patfield would be entitled to a share of his partners, 3-bedroom, 2-bathroom property (refer to Attachments E, F and G).
   
   I would ask the Tribunal to review Mr Patfield’s financial statement carefully and seek evidence, as his prior financial statement provided to Member K Buxton did not fully disclose his assets, in fact it showed him trying to divest his assets.
   
   I understand in addition to Mr Patfield’s household owning two homes, they also own four cars ([four brands specified]) and a caravan and may have other assets and means that have not been disclosed or attempts have been made to divest them in his partners or children’s names, for example bank accounts.  

2. The Tribunal noted from Mr Patfield’s SOFC that he owns:

   ·      A 2013 model [Vehicle 1] with an estimated value of $19,000; and

   ·      A 1988 model [Vehicle 2] with an estimated value of $7,500.

3. Mr Patfield’s choices of personal transport may sound luxurious but given their ages and estimated valuations do not appear to the Tribunal to be material to the total level of his resources.

4. The house where Mr Patfield resides has been the subject of previous disputes, both in the Family Court and in relation to a number of applications for a CoA.

5. Mr Patfield has also made a submission to the Tribunal on this matter, it says:
   
   Regarding the suggestion of possible rental income raised by [Ms Thornber] (based from 2016 material), has been dealt with in the family court, and in [case number] and again raised again on the 25th July 2022 for this case (2022/CC023478), I would like to submit the below:
    • The House has never been privately rented and is jointly owned by myself and my fiancé.
       Prior to that I held 1/3 share in the house with my mother whom had 2/3 ownership –    
       Information was provided to CSA in 2015/16 as well as the Family Court.
    • The self-contained “studio” that [Ms Thornber] claims should be rented is actually a workshop with
       large heavy dedicated [machinery], it has a toilet and shower but no cooking
       facilities or laundry, is not legally approved as a dwelling.
    • The house was designed to allow my mother to live with family members for support as
       she aged. The area she lived in offers limited privacy, isn’t approved for rental, has no
       approved cooking facilities. It is all under one roof and shares a connecting door with the
       main house.
    • This area is used as a rumpus room/craft area for the kids, my home office which I spend
       while working from home and there is a spare bedroom for my fiancé’s parents when
       they visit from interstate. We now have [number] children (including [Child 1]) and ourselves,
       so the five-bedroom house is a good fit, with [number of children] and a baby.
   
   I have demonstrated numerous times that there is no rental space available in our home.

6. The Tribunal asked Ms Thornber and Mr Patfield if they wanted to make any further response to each other’s submissions on their housing.

7. Ms Thornber responded that Mr Patfield’s partner had her own home and that he was using his current housing arrangements to “reduce his assets on paper.”

8. Mr Patfield provided [an Agency 1] rates notice dated 18 July 2022 which shows Mr Patfield and his partner, [named], are the owners of the property.

9. Mr Patfield told the Tribunal that his partner sold her property in April 2018.

10. They had purchased the [Town 1] property together in 2019 from Mr Patfield’s mother’s estate.

11. Mr Patfield told the Tribunal there is one mortgage over the property to [a named] Bank. 

12. As the mortgage is an arms-length arrangement the Tribunal found no evidence that Mr Patfield was using the house he shares with his partner to shelter assets from his child support assessment.

13. Having considered all of the evidence in relation to their respective houses, the Tribunal concluded that Ms Thornber and Mr Patfield each have appropriate accommodation, considering their different family sizes and needs.  There are no issues in relation to this matter which result in an unjust and inequitable amount of child support to being paid by either party.

Mr Patfield’s partner

1. In her submission Ms Thornber raised two matters in relation to Mr Patfield’s partner’s earnings and ownership of real estate:

   ·      Ms Thornber provided a table showing that Mr Patfield’s partner had reduced her income from $55,684 in 2019–-20 to $35,775 in 2020–21 and said “you could draw the conclusion that she is working less.  Therefore, Mr Patfield’s rationale that he has reduced his work hours to care for children seems unfounded when his partner has also reduced her work hours.  I therefore assert that Mr Patfield has reduced his taxable income purely to reduce his Child Support Liability and “make me pay him”.’

   ·      Mr Patfield’s partner also owns a three-bedroom, two-bathroom property.

2. In respect to these matters the Tribunal notes that subparagraph 117(7A)(b)(i) of the Act says:

   (7A)  In having regard to the income, property and financial resources of a parent of the child, the court must:

   (b) disregard:

   (i) the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceeding, unless, in the special circumstances of the case the court considers that it is appropriate to have regard to them.

3. The matters that Ms Thornber has raised in relation to Mr Patfield’s partner’s income and assets are therefore not relevant considerations for this CoA application and nothing that Ms Thornber has said would give rise to a finding that there are special circumstances that would make this a relevant matter.

The parties’ SOFCs

1. The Tribunal ordered Mr Patfield to provide a completed SOFC in which he estimates:

   ·    the total value of his property at $452,473.29;

   ·    the total amount of his liabilities at $137,642;

   ·    providing a net asset position of $314,795.29;

   ·    the total of his superannuation balances is $806,260.26;

   ·    his total average income per week is $1,222.52;

   ·    his total personal expenditure per week is $469; and

   ·    his total household expenditure is $2,883.

2. The Tribunal ordered Ms Thornber to provide a completed SOFC in which she estimates:

   ·    the total value of her property at $492,359;

   ·    the total amount of her liabilities at $209,958;

   ·    providing a net asset position of $282,401;

   ·    the total of her superannuation balances is $43,995;

   ·    her total average income per week is $1,508;

   ·    her total personal expenditure per week is $400; and

   ·    her total household expenditure is $1,033.

3. The net asset positions of Mr Patfield of $314,795.29 is similar to Ms Thornber’s of $282,401.

4. The reasons for the large discrepancy between their superannuation balances, Mr Patfield’s of $806,260.26 and Ms Thornber’s of $43,995 are set out in paragraph 26 of these Reasons for Decision and the relativity, for the reasons set out in paragraph 21 of these Reasons for Decision are not relevant considerations for this CoA application.

5. Mr Patfield has much higher household expenditure of $2,833 per week relative to Ms Thornber who has household expenditure of $1,033 per week, however this is explained by two factors. First, Mr Patfield lives in a two-income household with [number] children.  His partner’s income is outside this assessment due to the operation of subparagraph 117(7A)(b)(i) of the Act. Second, Mr Patfield included in his SOFC an estimate of $950 per week for house repairs, which reflects renovations which are one-off in nature and were funded by increasing his and his partner’s mortgage on their home. Adjusting for that anomaly, Mr Patfield’s weekly household expenditure is $1,883.   

1. There is a significant difference between Ms Thornber’s weekly income of $1,508 and Mr Patfield’s weekly income of $1,222.52. 

Financial resources

1. For the period 1 July 2021 to 30 November 2022 the administrative assessment requires Ms Thornber to pay an annual rate of child support of $1,530. This reflects the relative actual incomes of Mr Patfield and Ms Thornber.  

2. The Tribunal considered both parties’ income, property and financial resources, in particular their houses and superannuation, and its analysis resources does not demonstrate that the use of the administrative provisions of the Act, specifically the application of the adjusted taxable income as defined in legislation, results in an assessment that is unjust and inequitable, therefore the ground is not established.

3. Reason 8A is not established.

Reason 8B – earning capacity

1. The objections officer did not make a finding in relation to Reason 8B.

2. In her submission, Ms Thornber raised the issue of whether Mr Patfield had reduced his working hours with the purpose of reducing his child support liability.

3. Having regard to the fact that Ms Thornber had taken a voluntary redundancy from a [high paying] job and is now relying on her [superannuation] and casual employment to support herself and [Child 1], the Tribunal had also to consider whether that was an issue in relation to her, as well as to Mr Patfield. 

4. The relevant legislation as set out in subparagraph 117(2)(c)(i) of the Act says:
   
   (c)  that, in the special circumstances of the case, application in relation to the child of the
         provisions of this Act relating to administrative assessment of child support would result
       in an unjust and inequitable determination of the level of financial support to be provided
       by the liable parent for the child:
   
       (ib)  because of the earning capacity of either parent.

5. Subsection 117(7B) of the Act further regulates the notion of the ‘earning capacity’ of a parent as follows:

   In having regard to the earning capacity of a parent of the child, the court may determine that the parent’s earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied that:

   (a)  one or more of the following applies: 
   (i)   the parent does not work despite ample opportunity to do so;       
   work below the normal number of hours per week that constitutes full‑time work for the
   occupation or industry in which the parent is employed or otherwise engaged;
        (iii)  the parent has changed his or her occupation, industry or working pattern;  
   and

   
       
       (ii)  the parent has reduced the number of hours per week of his or her employment or other
             
             
   
   
       

   (b)  the parent’s decision not to work, to reduce the number of hours, or to change his or her
         occupation, industry or working pattern, is not justified on the basis of:
         (i)  the parent’s caring responsibilities; or      
        (ii)  the parent’s state of health; and    
   (c)  the parent has not demonstrated that it was not a major purpose of that decision to affect the
       administrative assessment of child support in relation to the child.        
   
   

6. This legislation is binding on the Tribunal.

Ms Thornber’s caring responsibilities

1. The Tribunal asked Ms Thornber to provide an explanation of the decisions she had made which had resulted in a reduction of her working hours from her previous full-time status.

2. Ms Thornber told the Tribunal that she had moved to part-time prior to the birth of [Child 1].  Her separation from Mr Patfield had occurred prior to [Child 1’s]s birth.  She never went back to work full-time.  She was effectively made redundant but took a voluntary separation package because it resulted in her receiving 10 weeks of pay above her entitlements and avoided her being put through a [redeployment process] which she did not expect to be successful.

3. During the hearing, Mr Patfield referred to Ms Thornber becoming a foster carer. Sufficient details for the purposes of this review are set out in the Reasons for Judgement of Mr Patfield and Ms Thornber’s custody case ([Citation deleted]). 

4. Following the hearing, Ms Thornber sent an email to the Tribunal which said:
   
   I do not agree with the court judgement being provided and ask that the tribunal disregard the document noting order 32 in the 2018 court orders that state that only permission was given to provide the judgement to a counsellor by me and that the judgement has not bearing on this matter.

5. The orders do not restrict the provision of the orders and reasons for judgement for other legitimate purposes, and the Tribunal has drawn on them as a reliable record of fact only for the purpose of considering whether either parent changed their working arrangements because of their caring responsibilities.  

6. The Tribunal did not consider Ms Thornber’s reasons for objecting to the Tribunal considering relevant elements of the Reasons for Judgement as outweighing Mr Patfield’s right to present cogent and reliable evidence in his own cause.  

7. The relevant parts of the Reasons for Judgement in relation to Ms Thornber are paragraphs 14 and 28, which say:
   
   14. At the time of the trial the wife had not re-partnered.  She has an adult daughter, [Daughter A], who lived with the parties for most of their relationship.  She was [age] when the parties commenced cohabitation.  [In] November 2016 the wife took on the full-time foster care of an infant, [Child 2], who at the time of the hearing in December 2016 was aged [age].  The wife was required as part of the foster agreement to take 12 months off work to bond with the child.  The wife said she expected to have the care of the child until she reached adulthood.  However, when the part-heard hearing resumed in May 2017, she advised the Court that the child had left her care in late December 2016 to be placed with a member of the child’s family.
   
   28. The wife provided an update about her financial situation in May 2017.  She said that during the hearing in December 2016 she was on foster carer’s leave and had expected to remain so until November 2017.  When [Child 2] left her care in December 2016 she switched to recreation and long service leave before returning to work on 1 March 2017 for two days a week.  In April 2017 she increased her hours to two and a half days a week.  She said she worked on Tuesdays when [Child 1] was cared for by his father, on Wednesdays when [Child 1] was cared for by his adult sister, [Daughter A], and on Thursdays for four hours when the child was at childcare in [Town 2].  Her salary was $24,800 a year in round terms.  Before the child was born she was on an annual salary of more than $130,000.

8. On the basis of the evidence set out in paragraphs 60, 61 and 65 of these Reasons for Decision the Tribunal makes a finding that Ms Thornber had caring responsibilities, first for [Child 1] and then in addition for [Child 2], both of which resulted in her reducing her weekly hours of work below full-time work.

Mr Patfield’s caring responsibilities

1. Mr Patfield told the Tribunal that he had always tried to be an “involved father” for [Child 1] and had adjusted his working hours to accommodate the amount of access that he obtained over time.

2. The Federal Circuit Court’s Reasons for Judgement are a reliable record of fact about changes in Mr Patfield’s caring responsibilities:

   ·      Mr Patfield sought orders for gradually increasing the time [Child 1] spent with him.

   ·      Mr Patfield and Ms Thornber were originally separated under one roof.  He took time off work after the birth of [Child 1] from [July] 2013 to 23 August 2013.

   ·      After Mr Patfield moved out of the matrimonial home in August of 2013, he returned each Tuesday and every second Saturday and at other times on an ad-hoc basis to spend time with [Child 1].

   ·      On 20 April 2015 Mr Patfield commenced proceedings to gradually increase the time he spent with [Child 1].

   ·      [In] June 2015 the court made orders for [Child 1] to live with his mother and to spend time with his father every Tuesday for the whole day and every second weekend from Saturday morning until noon Sunday.  After six months the weekend time was to extend to 6 pm Sunday.

   ·      [In] December 2015 orders were made for [Child 1] to spend time with his father in blocks of three days and two nights over the Christmas period in 2015 and in January, March, July and September 2016.

   ·      In December 2015 Mr Patfield entered a de facto relationship and his [Child 3] was born [in] May 2016.

   ·      At the time of the trial (the final hearing occurred over three days from [in] December 2016) Mr Patfield was the full-time carer of [Child 3] because the child’s mother was working in her own business.

   ·      Mr Patfield returned to work what he described as 0.8 of a full-time load of approximately 29 hours a week.  His annual salary was $86,512.

   ·      Mr Patfield was seeking a gradual increase in [Child 1’s] time with him until an equal time arrangement could be achieved by December 2018 or January 2019.

   ·      After the conclusion of the substantive proceedings [in] December 2016 orders were made which provided for the usual parenting arrangements for the child to be suspended between 24 December 2016 and 28 January 2017.  Orders were made for the child to spend time with his father during that period including several block periods of consecutive nights, the longest being four days and three nights in a row.

   ·      At the end of the trial [Child 1] was spending time with his father every second weekend from Saturday morning until Sunday afternoon and all day each Tuesday, which amounted to four days but only one overnight period per fortnight.  The court ordered the following graduated increases in care by Mr Patfield:

   o   From the first school term in 2019: every second weekend from after school Thursday until 5.30pm Sunday; and in the alternate week from after school Thursday until the commencement of school on Friday;

   o    From the commencement of the third school term in 2019: from the conclusion of school on Wednesday until 5.30pm Sunday, commencing on the first Wednesday of the term; and in the alternate week from the conclusion of school on Wednesday until the commencement of school on Friday;

   o   From the commencement of the first school term in 2020 on a week about basis with handover to occur at the conclusion of school each Friday.

3. Mr Patfield advised that he and his partner had a second child, [Child 4], born [in] June 2020.  He told the Tribunal he did not intend to change his working hours until [Child 4] reaches school age.   

4. Having considered the evidence summarised in paragraphs 68 and 69 of these Reasons for Decision, the Tribunal finds that Mr Patfield reduced his weekly hours of work below full-time work because of his caring responsibilities to [Child 1], [Child 3] and [Child 4].

5. Pursuant to subparagraph 117(7B)(a)(ii), the Tribunal finds that both Ms Thornber and Mr Patfield reduced the number of hours per week of their employment below the normal number of hours per week that constitutes full‑time work for the occupation and industry in which they were engaged.

6. Pursuant to subparagraph 117(7B)(b)(i) the Tribunal finds that both Ms Thornber’s and Mr Patfield’s decisions to reduce the number of hours worked is justified on the basis of their caring responsibilities.  

7. This means that Reason 8B is not established and there is no basis to consider a departure determination and the objections officer’s decision must be affirmed.

DECISION

The decision under review is affirmed.