Tuft and Tuft (Child support)

[2019] AATA 5943

Tuft and Tuft (Child support) [2019] AATA 5943 (25 November 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC017224

APPLICANT:  Ms Tuft

OTHER PARTIES:  Child Support Registrar

Mr Tuft

TRIBUNAL:Member S Letch

DECISION DATE:  25 November 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – minor changes to pattern – existing percentage of care determinations not to be revoked – decision under review affirmed

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. Ms Tuft and Mr Tuft are the parents of [Child 1] and [Child 2]. Care for both children from 31 January 2018 had been recorded by the Child Support Agency (CSA) as 81% to Mr Tuft and 19% to Ms Tuft when, on 4 December 2018, Ms Tuft reported to the CSA that, from 1 October 2018, she had care for 162 nights per year (or 44%).

2. On 28 February 2019, the CSA decided that there was to be no change recorded to the existing care percentages.[1] Ms Tuft objected to that decision on 13 March 2019; on 22 July 2019, an objections officer disallowed Ms Tuft’s objection.

   [1] The objections officer observed that even if satisfied regarding Ms Tuft’s care for half the school holidays and two nights a week, that would equate to 33% care; as the child support assessment is not affected where care is recorded in the band of 14% to 34%, it would not have been appropriate to revoke the existing care percentages.

3. Ms Tuft sought further review by the Tribunal on 22 August 2019. The Tribunal conducted a hearing on 11 November 2019; both parties participated by conference telephone. Ms Tuft undertook to provide additional material concerning school holiday information following the hearing; the Tribunal received no further contact from Ms Tuft, and the decision was made on the available evidence.

CONSIDERATION

1. Ms Tuft told the Tribunal that she did not consider that a statement from a third party (Mr [A]) had not been taken into account by the CSA. She said she had extra care when the boys came after school for sport, and when [Child 1] was working. She said [Child 1] was staying with her four nights a week, and [Child 2] two to three nights a week. She said each week might be different. She said [Child 1] would often stay Tuesdays, Wednesdays and Fridays, and occasionally after work on Saturdays. [Child 2] would stay Tuesdays and Thursdays, and occasionally Sunday. She agreed that school holidays were shared equally; however, she observed that school holidays extend for more than the 12 weeks in State schools. She undertook to supply to the Tribunal after the hearing with further evidence regarding school holiday dates.

2. Mr Tuft told the Tribunal that he disagrees; he referred to his numerous representations to the CSA, and his calendar records. He said he is sceptical about a letter from Mr [A] – he noted it was not originally signed, and made no particular reference to any period of time (Ms Tuft said that his statement did refer to the period in dispute). Mr Tuft said that in November 2018, Ms Tuft had [Child 1] for a total of four nights, and [Child 2] for two nights. In December 2018, [Child 1] stayed one night, and [Child 2] two nights. He disputes that [Child 1] had ever stayed with Ms Tuft on his work nights. On his calculation, Ms Tuft had 46 nights for school holidays (which still put her at less than 35%, even if it were to be accepted Ms Tuft had two nights per week care, which he rejects). He said the expectation as to the pattern of care leading up to December 2018, and then from January 2019 when school returned, was that Ms Tuft would have one night per week of care.

3. Ms Tuft told the Tribunal that [Mr A] lives in her [complex]. He is [nationality], and so would “talk [sport]” with the boys. His statement refers to the period in late 2018.

4. Both parties raised a change which occurred around June of this year, and a new decision being made by the CSA about care (evidenced in the CSA materials at folio 316). The Tribunal observed that matter was not presently before it. The scope of this review is limited to establishing the pattern, or likely pattern of care, as of the date of Ms Tuft’s notification on 4 December 2018. If notification was provided within 28 days of any change in the pattern of care, the change takes effect from the date of the change. Both parties have objection rights in respect of later care determinations made by the CSA, and any changes to the pattern of care after 4 December 2018 are not currently before the Tribunal in this review.

5. Both parties have submitted calendars evidencing what they say records overnight care. For example, Mr Tuft’s calendar entries for October 2018 record [Child 1] being with Ms Tuft on 14 October 2018, 16 October 2018, 23 October 2018 and 28 October 2018 (five nights). On the other hand, Ms Tuft records having [Child 1] from 30 September 2018 to 5 October 2018 inclusive (it is not clear whether this was part of a school holiday period; Ms Tuft has not supplied the school holiday dates to the Tribunal), 14 October 2018, 16 October 2018, 17 October 2018, 21 October 2018, 23 October 2018 and 28 October 2018. Mr Tuft, for November 2018, has [Child 1] with Ms Tuft for a total of four nights (and [Child 2] two nights). Ms Tuft has [Child 1] recorded as being in her care on 4 November 2018, 6 and 7 November 2018, 11 November 2018, 13 November 2018 and 18 November 2018.

6. The Tribunal did not place much weight on the statement from Mr [A]; the statement is general and does not identify particular dates, and does not directly contradict Mr Tuft’s account that both boys regularly stayed with Ms Tuft.

7. The parties agreed that school holidays are shared (although there was dispute about the total number of nights attributable to school holidays); however, they disagreed on the regular pattern of care during school terms.

8. Whilst the Tribunal did not regard Mr Tuft’s calendar recordings as providing a warranty of perfection, to the extent of material inconsistency, the Tribunal generally preferred Mr Tuft’s records as being more reliable; he has been generally consistent in his representations to the CSA.

9. It would appear that there was a “baseline” expectation that both boys would spend one night a week with Ms Tuft during school terms, with flexibility for other nights, depending on the circumstances.

10. At its highest, the Tribunal considers, to the extent any expected regular pattern could be established on the available evidence, that Ms Tuft’s care could be recorded at two nights per week. Adopting the holidays for public schooling, this would give Ms Tuft 122 nights, or 33% (six of 12 weeks for holidays (42 nights) and two nights a week for the other 40 weeks (80 nights)). In the absence of particular information about the school holiday periods for the children at the relevant time, the Tribunal is not prepared to allocate more than the usual 12-week period for school holidays in the calculation.

11. Even accepting additional nights for school holidays, the Tribunal considers that allocating two nights per week as the regular pattern to Ms Tuft would represent the “best case” for Ms Tuft; again, to the extent of any pattern being able to be established, and disregarding ad hoc days which inevitably arise in an arrangement with some flexibility, it is likely Ms Tuft’s care would be regarded as falling somewhere between one and two nights a week. Accordingly, even allocating more nights to Ms Tuft for school holidays, the Tribunal would not have been persuaded that her care would have crossed the 35% threshold which would mandate revocation of the existing pattern of care.

12. Accordingly, the Tribunal is not persuaded that the existing recorded pattern of care as of 4 December 2018, giving Mr Tuft 81% and Ms Tuft 19%, should be revoked.

13. As this is the same conclusion as the objections officer, the decision under review will be affirmed.

DECISION

The decision under review is affirmed.