Thwaites and Thwaites (Child support)

[2019] AATA 5128

Thwaites and Thwaites (Child support) [2019] AATA 5128 (16 September 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC016767

APPLICANT:  Mr Thwaites

OTHER PARTIES:  Child Support Registrar

Ms Thwaites

TRIBUNAL:Member A Schiwy

DECISION DATE:  16 September 2019

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that from 26 February 2019 Ms Thwaites had 64% care of [Child 1] and Mr Thwaites had 36% care.  The date of effect of this decision is 26 February 2019.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – whether it is appropriate to consider daytime care – appropriate to consider daytime care - existing percentage of care determinations revoked and new determinations made - decision under review set aside and substituted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed 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. Mr Thwaites and Ms Thwaites are the separated parents of [Child 1] who is 13 years old.  This application for review is about the respective percentages of care that each parent has for [Child 1].

2. A child support case has been registered with the Department of Human Services (‘Child Support’) since 2011. Child Support had determined that Ms Thwaites had 72% care of [Child 1] and Mr Thwaites had 28% care. 

3. On 26 February 2019 Mr Thwaites contacted Child Support and stated that he is now having 50/50 care.

4. On 28 March 2019 a Child Support employee decided that there had been a change in care to 50/50 from 26 February 2019.  

5. On 29 March 2019 Ms Thwaites objected to that decision and on 24 May 2019 an objections officer decided that Ms Thwaites had 68% care of [Child 1] from 29 February 2019 and Mr Thwaites had 32% care.

6. On 18 June 2019 Mr Thwaites applied to this tribunal for an independent review of the objections officer’s decision. 

7. A hearing into the application for review was held by the tribunal on 12 September 2019 in Hobart.  Mr Thwaites and Ms Thwaites both participated in the hearing by conference telephone and both gave evidence under affirmation during the hearing.    

8. The tribunal had before it relevant documents provided to it by the Department pursuant to subsections 37(1) of the Administrative Appeals Tribunal Act 1975, which were labelled folios 1 to 156.  After the hearing both parents were given until 5.00pm on 13 September 2019 to provide further evidence about the costs of caring for [Child 1].  Both parents provided further documentation (A1-A12 and B1-B4).

ISSUES

1. The Child Support (Assessment) Act 1989 (the Assessment Act) contains a complex scheme governing the determination of percentages of care: Division 4 of Part 5 of the Assessment Act. Essentially, if there is a pattern of care of the child by two (or more) persons, a percentage of care of the child is determined for each parent or caregiver. That determination remains in force until it is revoked. If the pattern changes sufficiently and the Registrar becomes aware of the change, the Registrar must revoke the previous determinations and make new ones. The dates of effect of the revocations and therefore also of the new determinations depend on the date of the change and sometimes on whether the parent notified the Registrar within a reasonable time.

2. In this case there is no doubt that, in accordance with court orders, Mr Thwaites has care of [Child 1] on Tuesday and Thursday nights one week and Tuesday, Thursday, Friday, Saturday and Sunday nights the next week: 7 nights out of 14.

3. Ms Thwaites has submitted that care should not be based on nights in care but hours on the basis that [Child 1] merely ‘sleeps over’ at Mr Thwaites’s house on Tuesdays and Thursdays and she incurs the majority of [Child 1]’s costs.

4. Section 50 of the Assessment Act allows for the determination of a parent’s percentage of care in a care period. Subsection 54A(1) of the Assessment Act provides that:

   the actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that the Registrar is satisfied that the child was, or is likely to be, in the care of the person during the care period.

5. The legislation uses the word ‘may’ and therefore it is not mandatory to use the number of nights in care.

6. The tribunal noted Child Support’s policy concerning the calculation of care other than by nights. The policy is found in Part 2.2.1 of the Child Support online policy document, the Child Support Guide.  It states:

   Generally, the number of nights a person cares for a child will be the best measure of their percentage of care. However, there may be some occasions where only counting the nights in care does not accurately reflect the caring arrangements for the child. For example, one parent may provide care every night while the other parent provides care from 8am to 6pm every weekday.

   In such cases, at the request of a parent or non-parent carer, the number of hours of care may be calculated for each carer in determining the pattern of care and then converted into a care percentage. The Registrar will take into account the information from each parent or non-parent carer about the care they provide and why they think nights or hours is the better measure of care.

   Even where a determination based on the hours of care that a person provides might result in a different percentage of care to a determination based on the nights of care, it may still be more appropriate to use nights of care as the best measure of care that the person provides.

   If a person has some overnight care and a small amount of additional 'daytime' care that is not associated with an overnight stay, it may still be more appropriate to use a care percentage calculation based on nights. A decision as to whether nights are an appropriate basis for a care percentage determination will depend on the particular circumstances of the case.

   Example: Leif and Kayley have 2 children, Emmett and Matti, who live mainly with Leif. Kayley has care of the children every second Friday and Saturday night and some school holidays. Kayley also picks the children up from school on Wednesdays, takes them to soccer and has dinner with them, before dropping them back to Leif's house for the night. As the daytime care Kayley provides each Wednesday does not significantly affect the care arrangements, it is appropriate to base the percentages of care on the nights of care that each parent has of the children.

7. The issue in this case is deciding how to determine an appropriate percentage of care for the parents.

CONSIDERATION

1. The parents live close to each other.  Mr Thwaites’s employment involves a long commute and he has to leave for work at 7.00am during the week.  He does not return home until around 6.00pm to 6.30pm.  Because of his work hours, when Mr Thwaites has care of [Child 1] during the week he drops her off at Ms Thwaites’s house at 7.00am in her pyjamas.  Ms Thwaites provides [Child 1] with breakfast, gets her ready for school and makes her lunches.  She arranges for a neighbour to take [Child 1] to school.  Ms Thwaites said she does all of [Child 1]’s laundry and organises her packing.

2. On Monday, Tuesday, Wednesday, Friday nights and Saturday mornings [Child 1] has [specified] classes.  Ms Thwaites stated that on Tuesday and every second Friday night Mr Thwaites picks [Child 1] up after [class].  On Tuesday nights classes go to [a certain time] and sometimes to [a later time] when there is an upcoming performance.  She provides snacks and meals for [Child 1].

3. Ms Thwaites also stated that she provides [Child 1] with dinner on Thursday night as Mr Thwaites doesn’t pick her up until 6.30pm to 7.00pm.  Mr Thwaites stated that he picked her up between 6.00pm and 6.30pm and provided her with dinner.  The tribunal was satisfied that, given [Child 1]’s age, Mr Thwaites does provide dinners for [Child 1] on Thursdays.

4. Ms Thwaites stated that she pays for all of [Child 1]’s [class] costs including class fees and [clothing].  Mr Thwaites said that he has been paying for some of the [class] costs and when he is asked to assist he does.  There was also some dispute over who pays for uniforms and book costs each year.

5. Ms Thwaites also talked about past costs she has incurred and the fact that she had reduced work hours when [Child 1] was younger.  The tribunal did not consider that this was relevant in deciding care percentages as at February 2019.

6. Essentially Ms Thwaites is saying that she cares for [Child 1] for all of the school week as she does everything for [Child 1] including getting her ready for school, caring for her after school (Ms Thwaites gets home at 4.30pm), taking her to [lessons], doing her laundry and providing most of her meals.

7. The child support formula assumes that the costs of the child will be distributed according to the amount of care a parent has.  For example, if care is between 14% and 35% the formula allows for 24% of the costs.  If care is 50% the formula allows for 50% of the costs.  As discussed above, care percentage is normally based on nights in care but the tribunal considers that Child Support’s policy to allocate on the basis of hours is appropriate where the parent has the child for longer periods during the day and thus incurring more costs.  This is mainly an issue for younger children who need care during the day. 

8. The tribunal was satisfied that Ms Thwaites does provide for more than 50% of [Child 1]’s care during the week given that she has [Child 1] in her care from 7.00am until at least 6.00pm each night, Monday to Friday.  Although [Child 1] is at school for most of this time Ms Thwaites is providing her meals and snacks each day and dinner on Tuesday.  This goes beyond just having [Child 1] after school one day per week (as per the Child Support policy example).  Ms Thwaites provided evidence of after school care costs although this appears to have ceased by February 2019 and her own evidence is that [Child 1] is home from school alone until 4.30pm.

9. The tribunal decided that it would not be appropriate to base care on nights given that Ms Thwaites incurs more costs because she needs to look after [Child 1] from 7.00am to 6.00pm; in particular food, transport to school and a small amount of household costs such as heating.  The tribunal did not think it was relevant to take into account which parent incurs costs such as [classes] and school costs as these are not a factor of where the child is physically located; they are a matter for the parents to negotiate.  The tribunal also noted that during the day, [Child 1] is at school and therefore Ms Thwaites does not have to incur significantly more additional housing costs.

10. After taking these issues into account the tribunal decided that it would not be appropriate to base the care percentage on the number of nights but it is also not simply a matter of adding up hours [Child 1] is with Mr Thwaites, given she is at school during the day.  The tribunal concluded that Mr Thwaites had care of [Child 1] for 36% of the time; an average of five days/nights per fortnight.  This takes into account the fact that he has her from Friday night to Monday morning every second week (three nights per fortnight) and would incur at least half of the day to day costs for Tuesdays and Thursdays each week (an average of two days/nights per fortnight). 

11. Section 54F of the Assessment Act provides that an existing care percentage decision must be revoked if the Department is notified, or otherwise becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded and that change would alter the cost percentage used for the parent in the administrative assessment of child support. A care percentage of 36% results in a cost percentage of 27% for Mr Thwaites. Under the existing care determinations, Mr Thwaites’s cost percentage is 24%. As a change in care results in a change in the cost percentages applying in the statutory formula, section 54F of the Assessment Act states that the existing care determinations must be revoked.

12. The parents raised the issue of private school fees.   If either parent believes they are incurring significant costs for these fees it is open to them to apply for a departure from the formula assessment (a change of assessment application).

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that from 26 February 2019 Ms Thwaites had 64% care of [Child 1] and Mr Thwaites had 36% care.  The date of effect of this decision is 26 February 2019.