Thornhill and Tuson (Child support)
[2022] AATA 3972
•10 October 2022
Thornhill and Tuson (Child support) [2022] AATA 3972 (10 October 2022)
DIVISION:Social Services & Child Support Division
REVIEW NUMBERS: 2022/BC024191
2022/BC024236
APPLICANT: Mr Thornhill
OTHER PARTIES: Child Support Registrar
Ms Tuson
TRIBUNAL:Member D Cox
DECISION DATE: 10 October 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 set aside and substituted
CHILD SUPPORT – percentage of care – date of effect provisions – whether there were special circumstances that prevented the objection being lodged in time – no special circumstances exist
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.
DECISION:
The Tribunal sets aside the decisions under review and, in substitution, decides that:
(a)The previous determination of 30 August 2019 is revoked on 6 August 2019 in respect of Ms Tuson and 26 July 2019 in respect of Mr Thornhill, pursuant to subparagraphs 54(F)(3)(b)(i) and 54(F)(3)(b)(ii) of the Child Support (Assessment) Act 1989 (the Assessment Act); and
(b) A new determination is made to reflect the care of [the child] as 3% to Ms Tuson and 97% to Mr Thornhill from the day after revocation, pursuant to section 50 of the Assessment Act; and
(c)Pursuant to subsection 87AA(1) of the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act), the date of effect of the decisions set out in (a) and (b) is 29 March 2022; and
(d) The previous determination of 30 May 2020 is revoked on 13 April 2020 in respect of Mr Thornhill and 3 April 2020 in respect of Ms Tuson, pursuant to subparagraphs 54(F)(3)(b)(i) and 54(F)(3)(b)(ii) of the Assessment Act; and
(e) A new determination is made to reflect the care of [the child] as 0% to Ms Tuson and 100% to Mr Thornhill from the day after revocation, pursuant to section 50 of the Assessment Act; and
(f) Pursuant to subsection 87AA(1) of the Registration and Collection Act, the date of effect of the decisions set out in (d) and (e) is 28 March 2022.
REASONS FOR DECISION
BACKGROUND
Mr Thornhill had 100% care of [the child] from 12 July 2018.
On 7 August 2019 Ms Tuson notified a change of care of [the child] on 27 July 2019 of 79% to Mr Thornhill and 21% to her.
On 30 August 2019 Services Australia (Child Support) made a decision to reflect care of [the child] as 79% to Mr Thornhill and 21% to Ms Tuson from 27 July 2019.
On 14 April 2020 Ms Tuson notified a change of care of [the child] on 4 April 2020 of 21% care to her and 0% to Mr Thornhill.
On 30 May 2020 Child Support made a decision to reflect the care of [the child] as 21% to Ms Tuson and 0% to Mr Thornhill.
On 28 March 2022 Mr Thornhill lodged an objection to the decision made on 30 May 2020.
On 29 March 2022 Mr Thornhill lodged an objection to the to the decision of 30 August 2019.
On 9 June 2022 an objections officer disallowed the objection to the decision of 30 August 2019 because there was insufficient evidence to determine the care of [the child] from 27 July 2018.
On 10 June 2022 an objections officer allowed the objection to the decision of 30 May 2020. The objections officer’s decisions are:
· Special circumstances do not exist for lodging the objection more than 28 days after the original decision; therefore
· The date of effect of the objection officer’s decision is 28 March 2022, which is the date the objection was lodged; and
· Care of [the child] is recorded as 100% to Mr Thornhill and 0% to Ms Tuson from 28 March 2022.
On 30 June 2022 Mr Thornhill made an application to the Tribunal for a review of the objections officer’s decision of 9 June 2022.
On 8 July 2022 Mr Thornhill made an application to the Tribunal for a review of the objections officer’s decision of 10 June 2022.
CONSIDERATION
Evidence in relation to care
When Mr Thornhill lodged his objections to both the decisions of 30 August 2019 and 30 May 2020 he is recorded by Child Support as giving the same set of reasons in both cases. These are set out in full below:
Two years ago when the COVID pandemic occurred, [the child] and he were living with his mother, [Ms A]. Subsequently he had to quarantine so could not then stay with his mother. Mr Thornhill continued to quarantine at his girlfriend’s residence.
[The child] was attending a private school and with the need to find accommodation for [the child], he stayed with [Mr B] ([the child]’s uncle) for a short period.
Mr Thornhill paid 100% of all costs for [the child] and makes 100% of all parenting decisions.
Mr Thornhill also advised that he had been providing care for [the child] at approximately a level of 90% for the two years prior and 100% for last year, In the last two years he has covered 100% of all [the child]’s expenses.
On 30 March 2022 Child Support spoke with Ms Tuson and she advised the following:
She agreed to the grounds of Mr Thornhill’s objection stating that she had only one night of care per month since 27 July 2019 and [the child] was neither in care of Ms Tuson nor Mr Thornhill as [the child] was living with his Grandmother and then his Uncle.
She agrees that Mr Thornhill was paying [the child]’s school fees, however [the child] was paying for his accommodation whilst staying with his Grandmother and Uncle [Mr B] as he was earning $450 a week until November 2021 and from December 2021 he is earning $600.00 a week.
(She) advised us that [the child] had started working with a weekly income of $450 last year until November 2021 and from December 2021, he started to earn $600 a week.
Mr Thornhill disputed Ms Tuson’s statements about [the child]’s earnings both to Child Support and the Tribunal. He said [the child] was still in school and is not earning $600 a week.
On 4 April 2022 Mr Thornhill provided Child Support with two third party statements.
The first statement was from [Ms A], [the child]’s grandmother. It says:
Prior to 18 March 2019, Mr Thornhill and [the child] were living together with me at (redacted) on 18 March 2019 Mr Thornhill was in contact with a person that had contracted covid and became ill and had to isolate away from me and [the child]. At this time [the child] was attending (redacted) COLLEGE so we had to find him a place to stay as I have (redacted (rare [redacted] disease) and as I am an elderly woman it was imperative not to contract covid.
Mr Thornhill continued to stay at his girlfriend and [the child] moved in with his uncle [Mr B] from around 10th April 2019 until 29th May 2019 (6 weeks).
During this time Mr Thornhill supported [the child] while he was with me and his uncle financially and made all the parenting decisions regarding daily situations and continued Private School Fees food etc.
While covid worsened [the child] moved in with his mother (Ms Tuson) for approximately 10 days until he decided he wanted to come back to me until Mr Thornhill’s partner’s lease ran out so they could get a bigger house. During this time Mr Thornhill continued to pay 100% of [the child]’s expenses.
On 30 April 2020, [the child] and Mr Thornhill moved to (redacted) where [the child] has been staying 100% of the time.
The second statement was from [Mr B], [the child]’s uncle. It says:
[The child] moved in with me on 10th April 2019 (6 weeks) Mr Thornhill paid for food and any expenses [the child] incurred while staying with me.
On 29th May 2019 [the child] moved in with his mother Ms Tuson.
Both letters were typed and signed by the respective parties. Certain characteristics suggest that they were prepared by the same person and not produced independently:
· The common style in referring to dates;
· The inclusion in both letters of (6 weeks);
· The common reference to [the child] moving into his uncle’s house on 10 April 2019, which the grandmother’s letter related to the COVID-19 pandemic, which did not begin in Australia until the following year.
The main characteristic of this case is a shortage of reliable evidence. This was not corrected at the hearing because both parties chose to use that opportunity to argue about issues which could only be pursued through an application for a departure decision from the administrative assessment.
The Tribunal asked Mr Thornhill whether he had evidence to present to support his case for a change to the objection officers’ decisions. He responded saying that he’d had enough of the process and would accept the Tribunal’s decision.
Ms Tuson told the Tribunal that Mr Thornhill had raised [the child] for the last 18 months.
Consideration of reasons for late lodgement of objections
Mr Thornhill did not lodge his objection to the decision made on 30 August 2019 until 29 March 2022.
Mr Thornhill did not lodge his objection to the decision made on 30 May 2020 until 28 March 2022.
As both objections were lodged more than 28 days after the decisions to which they referred, the Tribunal was required to consider whether there are special circumstances that prevented them being lodged within the period prescribed by section 87AA of the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).
Mr Thornhill gave the Tribunal the following explanation for his late lodgement of the objections:
· He said he’d had enough of paying maintenance as he felt the system hadn’t worked for him;
· His daughter had turned 18, his son was living with him and he wanted to get away from the child support system;
· After his daughter turned 18 he didn’t think the system affected him;
· He said he was depressed as a result of the child support system but did not provide any clinical evidence of that; and
· He said, “I didn’t want to deal with it.”
The Tribunal considered this explanation and made a decision pursuant to subsection 87AA(2) of the Registration and Collection Act that special circumstances do not exist.
Pursuant to subsection 87AA(1) of the Registration and Collection Act, this means that the date of effect of the review decisions, which have the effect of varying the determinations, is the date on which the objections were lodged.
Care decision of 30 August 2019
In considering the original decision of 30 August 2019 and its accompanying objection decision of 9 June 2022, the Tribunal noted that Ms Tuson gave Child Support information on 30 March 2022 that conflicted with the information she had given when notifying the care change.
On 7 August 2019 Ms Tuson had notified Child Support that from 27 July 2019 she had care of [the child] three nights per fortnight on Friday, Saturday and Sunday.
On 12 August 2019 Child Support attempted to contact Mr Thornhill by telephone but the number was disconnected. On the same day Child Support wrote to Mr Thornhill advising him of the potential change in care percentage. The letter said:
If you do not contact us by 26 August 2019, we will make a decision based on the information we have.
The hearing papers contain no information that Mr Thornhill responded by that date and the care decision was made.
On 30 March 2022 Ms Tuson told Child Support that she only had care of [the child] for one night a month from 27 July 2019.
The Tribunal preferred Ms Tuson’s information given on 30 March 2022 as more likely to reflect the actual pattern of care of [the child] after 27 July 2019.
Section 50 of the Child Support (Assessment) Act 1989 (Assessment Act) requires the Tribunal to determine a percentage of care that reflects a person’s percentage of care that corresponds with the actual care of the child that the person is likely to have.
The Tribunal finds that there was a change of care event on 27 July 2019 and that the pattern of care for [the child] from that date is 3% to Ms Tuson and 97% to Mr Thornhill.
Therefore the Tribunal allows the objection and sets aside the objections officer’s decision of 9 June 2022.
Pursuant to subsection 54F(1) of the Assessment Act, the Tribunal is satisfied that:
(a) the care of [the child] that is actually taking place does not correspond with the existing percentage of care; and
(b) the responsible persons’ cost percentages for [the child] would change if another percentage was determined, under section 49 or 50 of the Assessment Act.
Therefore the Tribunal must revoke the previous determination to reflect care of [the child] as 100% to Mr Thornhill and 0% to Ms Tuson from 12 July 2018.
Pursuant to subparagraph 54F(3)(b)(i) of the Assessment Act the Tribunal revokes the previous determination for Ms Tuson at midnight on 6 August 2019.
Pursuant to subparagraph 54F(3)(b)(ii) of the Assessment Act the Tribunal revokes the previous determination for Mr Thornhill at midnight on 26 July 2019.
Pursuant to subsection 54(2) of the Assessment Act, the Tribunal determined new care percentages for the period 27 July 2019 to 27 July 2020.
Pursuant to section 50 of the Assessment Act, the Tribunal makes a new determination to reflect the care of [the child] as 3% to Ms Tuson from 7 August 2019.
Pursuant to section 50 of the Assessment Act, the Tribunal makes a new determination to reflect the care of [the child] as 97% to Mr Thornhill from 27 July 2019.
Due to the operation of section 87AA of the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act), that decision has effect from 29 March 2022, the date Mr Thornhill lodged his objection.
Care decision of 30 May 2020
In considering the original decision of 30 May 2020 and its accompanying objection decision of 10 June 2022, the Tribunal noted that there is some consistency between the grandmother’s letter, which said that Mr Thornhill and [the child] moved to Buderim on
30 April 2020, and Ms Tuson’s statement to the Tribunal that Mr Thornhill had raised [the child] for the last 18 months.The evidence set out in paragraph 43 of these Reasons for Decision is not consistent with the notification Ms Tuson made to Child Support on 14 April 2020 that Mr Thornhill had no care of [the child] from 4 April 2020.
The Tribunal preferred the more recent information which Ms Tuson gave as more likely to reflect the actual pattern of care of [the child] from April 2020.
The Tribunal finds that there was a change of care event on 4 April 2020 and that the pattern of care for [the child] from that date is 0% to Ms Tuson and 100% to Mr Thornhill.
Therefore the Tribunal allows the objection and sets aside the objections officer’s decision of 10 June 2022.
Pursuant to subsection 54F(1) of the Assessment Act, the Tribunal is satisfied that:
(a) the care of [the child] that is actually taking place does not correspond with the existing percentage of care; and
(b) the responsible persons’ cost percentages for [the child] would change if another percentage was determined, under section 49 or 50 of the Assessment Act.
Therefore the Tribunal must revoke the previous determination to reflect care of [the child] as 0% to Mr Thornhill and 21% to Ms Tuson from 4 April 2020.
Pursuant to subparagraph 54F(3)(b)(i) of the Assessment Act the Tribunal revokes the previous determination for Mr Thornhill at midnight on 13 April 2020.
Pursuant to subparagraph 54F(3)(b)(ii) of the Assessment Act the Tribunal revokes the previous determination for Ms Tuson at midnight on 3 April 2020.
Pursuant to subsection 54(2) of the Assessment Act, the Tribunal determined new care percentages for the period 4 April 2020 to 4 April 2022.
Pursuant to section 50 of the Assessment Act, the Tribunal makes a new determination to reflect the care of [the child] as 100% to Mr Thornhill from 4 April 2020.
Pursuant to section 50 of the Assessment Act, the Tribunal makes a new determination to reflect the care of [the child] as 0% to Mr Thornhill from 14 April 2020.
Due to the operation of section 87AA of the Registration and Collection Act, that decision has effect from 28 March 2022, the date Mr Thornhill lodged his objection.
DECISION
The Tribunal sets aside the decisions under review and, in substitution, decides that:
(a)The previous determination of 30 August 2019 is revoked on 6 August 2019 in respect of Ms Tuson and 26 July 2019 in respect of Mr Thornhill, pursuant to subparagraphs 54(F)(3)(b)(i) and 54(F)(3)(b)(ii) of the Child Support (Assessment) Act 1989 (the Assessment Act); and
(b)A new determination is made to reflect the care of [the child] as 3% to Ms Tuson and 97% to Mr Thornhill from the day after revocation, pursuant to section 50 of the Assessment Act; and
(c)Pursuant to subsection 87AA(1) of the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act), the date of effect of the decisions set out in (a) and (b) is 29 March 2022; and
(d) The previous determination of 30 May 2020 is revoked on 13 April 2020 in respect of Mr Thornhill and 3 April 2020 in respect of Ms Tuson, pursuant to subparagraphs 54(F)(3)(b)(i) and 54(F)(3)(b)(ii) of the Assessment Act; and
(e) A new determination is made to reflect the care of [the child] as 0% to Ms Tuson and 100% to Mr Thornhill from the day after revocation, pursuant to section 50 of the Assessment Act; and
(f) Pursuant to subsection 87AA(1) of the Registration and Collection Act, the date of effect of the decisions set out in (d) and (e) is 28 March 2022.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Appeal
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Jurisdiction
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Remedies
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Statutory Construction
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