Thubron and Thubron (Child support)

[2022] AATA 1172

Thubron and Thubron (Child support) [2022] AATA 1172 (1 April 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/BC022887

APPLICANT:  Ms Thubron

OTHER PARTIES:  Child Support Registrar

Mr Thubron

TRIBUNAL:Member S Letch

DECISION DATE:  1 April 2022

DECISION:

The decision under review is affirmed.

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 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

1. Ms Thubron and Mr Thubron are the parents of [the child]. Care for [the child] had been recorded by the Child Support Agency (CSA) as 100% to Ms Thubron when, on 30 June 2021, Mr Thubron advised the CSA his care of [the child] had increased to every second weekend from after school on Friday afternoon until Sunday, and every second Wednesday after school (but not overnight), with effect from August 2020.

2. It is convenient by way of background to set out some extracts from the objections officer decision dated 6 December 2021:

   We have made the decision to reflect the care of [the child] as 86% to Ms Thubron and 14% to Mr Thubron, from
   29 January 2021.

   WHEN WILL THIS CHANGE TAKE EFFECT?

   We have decided we should apply this change to the assessment for Ms Thubron on 29 January 2021 and
   for Mr Thubron on 30 June 2021. This is because we were not notified within 28 days of the date the care
   change. The assessment will be updated to reflect this change.

   DECISION UNDER REVIEW
   The decision made on 7 September 2021, to refuse to reflect the care of [the child] as 80% to Ms Thubron

   and 20% to Mr Thubron, from 30 June 2021.

   Correspondence dated 21 January 2021 from Mr Thubron`s legal representation, responded to by Ms Thubron`s
   legal representation on 25 January 2021, shows agreement was reached between the parents.

   It was agreed that Mr Thubron will care for [the child] each alternate Wednesday from after school until
   6:30pm commencing 3 February 2021, and each alternate weekend from after school Friday until
   4:00pm Sunday commencing this weekend .

   The parenting order made on 28 October 2019 provides for Mr Thubron to care for [the child] overnight
   during school term and school holidays. This above agreement does not include or name school

   holiday care as part of the agreed arrangement.

   As such, we will base this decision on the actual care of [the child] that is occurring.

   We therefore do not find Mr Thubron`s care of [the child] was reinstated in accordance with the parenting
   order made on 28 October 2019, nor do we find his care increased on 30 June 2020 as Mr Thubron claims.

   We however do find, Mr Thubron`s care of [the child] increased on 29 January 2021, in accordance with legal
   representation letters on 21 and 25 January 2021 between the lawyers. This coincides with the care
   calendars provided by Ms Thubron, showing a change to the usual pattern of care being provided for
   [the child], of two overnight stays with Mr Thubron per fortnight.

   Accordingly, we have made the decision to reflect the care of [the child] as 86% to Ms Thubron and 14% to
   Mr Thubron, from 29 January 2021.

   The relevant care period is 29 January 2021 to 28 January 2022.

   We have decided we should apply this change to the assessment for Ms Thubron on 29 January 2021 and
   for Mr Thubron on 30 June 2021. This is because we were not notified within 28 days of the date the care
   change.

   The objection is part allowed.

3. Ms Thubron and Mr Thubron participated in the Tribunal’s hearing by conference telephone. In short, whilst Ms Thubron does not dispute that an agreement was proposed in January 2021, at no material time has Mr Thubron’s actual care exceeded 10% on her calculations. She estimated Mr Thubron’s care has ranged from 7% to 10%. She has presented her records of the nights [the child] spent in Mr Thubron’s care; those records were not seriously disputed by Mr Thubron. Ms Thubron said she did not breach the agreement; the children did not want to stay with Mr Thubron and it has been a “slow process” to return to a situation where Mr Thubron has overnight care.

4. Mr Thubron told the Tribunal that Ms Thubron has not abided by the parenting agreement made in 2019, or agreements since. In short, he agrees with the CSA decision. 

5. Care percentage determinations are governed by Subdivision B of Division 3 of Part 5 of the Child Support (Assessment) Act 1989 (the Act). In very simple terms, if there is a change in the pattern, or likely pattern, of care, an existing determination is revoked and replaced by a new determination reflecting the new pattern of care.

6. It is important to observe that these are “point in time” assessments. Every change to the pattern, or likely pattern, of care is subject to separate notification and a separate decision about whether to revoke the existing recorded pattern and replace it.

7. Here, the CSA construed Mr Thubron’s notification on 30 June 2021 as pertaining to a change in the pattern, or likely pattern, of care on 29 January 2021 in line with the documented agreement between the parties. The Tribunal considers that appropriate in the facts of this case.

8. The CSA materials reveal correspondence at folio 100 from Ms Thubron’s lawyer dated 25 January 2021 recording that Ms Thubron consented to a proposed arrangement for Mr Thubron to have [the child] for two nights a fortnight (or 14% care). Ms Thubron’s records show that initially, those arrangements were fulfilled; it appears some occasions were missed in April and June 2021, with occasional nights in some other months.

9. The Tribunal must determine the pattern, or likely pattern, of care as of (Friday) 29 January 2021. The best evidence of that is the agreement struck between the parties, and what in fact occurred in the immediate months thereafter. That pattern gives Mr Thubron the equivalent of one night a week (on average), or 14% care.

10. As indicated above, each change in care is the subject of a separate notification, and separate decision. It may be that at some point after 29 January 2021, the general pattern had reached a point of crystallising to a level where Mr Thubron’s pattern of care should be recorded at a level below 14%. Any contact from either party which might be regarded as separate notification in respect of a later point in time is something either party can raise with the CSA; such matters are not before the Tribunal in this review.

11. As the Tribunal has reached the same conclusion as the objections officer, the decision under review will be affirmed.

DECISION

The decision under review is affirmed.