Twentyman and Twentyman (Child support)

[2022] AATA 3067

Twentyman and Twentyman (Child support) [2022] AATA 3067 (28 July 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/BC023908

APPLICANT:  Mrs Twentyman

OTHER PARTIES:  Child Support Registrar    

Mr Twentyman                   

TRIBUNAL:Member R King

DECISION DATE:  28 July 2022

DECISION:

The tribunal sets aside the decision under review and in substitution decides that, from 9 January 2022, Mr Twentyman has 65% of [the child]’s care and Mrs Twentyman has 35% of [the child]’s care.

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

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. Mrs Twentyman and Mr Twentyman are the parents of [the child] (aged 13 years).  As part of an administrative assessment by the Child Support Agency (the CSA) the care of [the child] was recorded as being 67% with Mrs Twentyman and 33% with Mr Twentyman from 11 October 2018.

2. On 13 January 2022, Mrs Twentyman contacted the CSA and advised that she would be having 35% of [the child]’s care during 2022.  After speaking with Mr Twentyman the CSA decided, on 1 February 2022, to record the care of [the child] as 35% with Mrs Twentyman and 65% with Mr Twentyman.

3. On 21 February 2022 (within 28 days of being provided with the decision), Mr Twentyman lodged an objection to the new care percentage determination for [the child]. 

4. On 21 April 2022, after giving consideration to a relevant Court Order and the [School] calendar, an objections officer partly allowed Mr Twentyman’s objection to the care percentage determination for [the child].  The objections officer found that care was provided in accordance with the Court Order and that, over the course of a year, given the term dates for [the child]’s school, Mr Twentyman would provide 66% of [the child]’s care and Mrs Twentyman would provide 34% of [the child]’s care.  The objections officer noted that, in accordance with special arrangements introduced by the Queensland Government to extend the summer holiday period and commence Term 1 a week later, Mrs Twentyman would provide additional care.  However, the objections officer regarded this as a minor departure from the pattern of care set down by the Court Order that did not warrant a change in the care percentage that would apply in a typical school year.

5. On 15 May 2022 (within 28 days of being provided with the objection decision), Mrs Twentyman applied to the tribunal for review of the care percentage decision for [the child].   Mr Twentyman was added as a party to Mrs Twentyman’s application. 

6. The tribunal conducted a hearing on 27 July 2022.  Both Mrs Twentyman and Mr Twentyman participated and provided sworn evidence by conference telephone. 

CONSIDERATION

1. During the hearing, Mrs Twentyman and Mr Twentyman were in agreement that the care arrangements for [the child] were in accordance with the Court Order.  The order provided for [the child] to live with Mr Twentyman but spend four nights each fortnight during the school terms and half the school holiday nights with Mrs Twentyman. 

2. Mrs Twentyman said that she notified of a change of care percentage because Term 1 was shortened by one week in 2022 and she had provided an additional week of overnight care during the summer holidays.  She said that the change of care percentage mattered to her because it meant that she became eligible to receive a share of the family tax benefit payments for [the child].

3. Mr Twentyman told the tribunal that he accepted that Mrs Twentyman had provided an additional week of care during the summer holiday period.  He said that he had compensated her privately for this by providing an additional child support payment.  However, he submitted that the tribunal should follow the same reasoning as the objections officer in finding that there was no change to the overall pattern of care as set down in the Court Order and only a minor departure that was unlikely to be replicated in the future.

Application of the law

1. The relevant care percentage provisions are contained in the Child Support (Assessment) Act 1989 (the Act).  The Child Support Guide (the Guide) contains detailed policy guidelines for CSA officers to use when applying the Act.  The tribunal is not bound by these guidelines but, for the sake of consistency in decision making, the tribunal follows the guidelines, unless it would be clearly inconsistent with the proper application of the law to do so.

2. Under section 50 of the Act, when a person applies to the CSA for an assessment, the pattern of care must be determined, and a care percentage recorded for each parent.  The tribunal is satisfied that the pre-existing care percentage determination for [the child] was 77% with Mr Twentyman and 33% with Mrs Twentyman.

3. Section 54F of the Act requires that, when the CSA becomes aware that the actual care of a child does not correspond with a care percentage determined under section 50, and that a change in the care percentage would have an effect on the cost percentage, the original care percentage determination is revoked.  Under section 54G of the Act, a care percentage determination must also be revoked if the effect of a change of care is such that a parent has less than 14% of the care, despite the other parent making the child available. Section 54G is only applied if the parent with increased care notified the change of care within a reasonable period.  If the change is insufficient to require a change to the cost percentage, the original determination may be revoked under section 54H of the Act but revocation is not mandatory because the change in care percentage does not affect the overall child support assessment. 

4. When a care percentage determination is revoked under sections 54F, 54G or 54H and the revocation is not a terminating event, a new care percentage is then determined, under section 49 or section 50 of the Act, that corresponds with the actual percentages of care provided by each parent.  When Mrs Twentyman contacted the CSA, the pre-existing care percentages were revoked and new care percentages determined that Mrs Twentyman had 35% of [the child]’s care and Mr Twentyman had 65% of [the child]’s care.  The revocation would have been pursuant to section 54F of the Act as the change of care changed the cost percentage. 

5. An objections officer decided that the actual care arrangements did not warrant revoking the pre-existing care percentage determination for [the child] and restored the pre-existing determination.

6. Both parents agree that the pattern of care has been in accordance with a Court Order that allows Mrs Twentyman four nights of care each term fortnight and half the school holidays.  The hearing papers include a copy of the term dates for 2021.  These show that the school has two term weeks of 10 weeks duration, one term of nine weeks duration and one term of eight weeks duration.  It is not in dispute that, for 2022, Term 1 was foreshortened by one week in accordance with a decision of the Queensland Government announced on 9 January 2022.  This means that in 2022, [School] has one term of 10 weeks duration, two terms of nine weeks duration and one term of eight weeks duration (18 fortnights).  This leaves 16 weeks of holidays.

7. Mr Twentyman submitted that the tribunal should disregard the 2022 term dates because they were abnormal.  The tribunal appreciates that the objections officer took the approach advocated by Mr Twentyman but is of the view that it is not the correct approach. The sections outlined in paragraph 12 of this decision specify that a care percentage determination can be revoked when the decision-maker becomes aware that the care that is actually taking place does not correspond with the existing care percentage for the child.  The tribunal notes that section 54A of the Act allows actual care to be based on care that is likely to take place. 

8. When the pattern of care is based on each parent providing a specified proportion of the care during the school terms and a different specified proportion of the care during the school holidays and there is a change in the ratio of holidays to terms from one year to the next, the actual care percentages of each parent necessarily changes.  The percentage of care is an important component of the assessment because child support is partly based on the costs of care borne by each parent and those costs are substantially contingent on the percentage of care that each parent provides.  It follows that if a change in the school calendar has the effect of a parent having a greater proportion of care than the care recorded, the existing care percentage must be revoked unless the change has no effect on the cost percentage.

9. Mr Twentyman further submitted that, if the tribunal was unwilling to disregard the reduced weeks in Term 1, it should give consideration to the fact that the handover times result in him having more hours of care than the total hours that would result from multiplying his nights of care by 24.  Mr Twentyman drew the attention of the tribunal to the wording of section 54A of the Act, which states that the actual care may be worked out based on the number of nights of care provided or likely to be provided.  Mr Twentyman submitted that this wording does not restrict the tribunal to using nights of care as the basis for determining actual care. 

10. The tribunal agrees with Mr Twentyman that section 54A does not preclude taking into account hours of care.  However, the tribunal is of the view that hours of care should only be given consideration when the effect of basing care on nights produces a gross distortion of the care percentages.  The Guide provides examples of circumstances where hours of care might be preferred to nights.  There is nothing unusual about the handover arrangements specified in the Court Order.  As is usually the case, they take into account the practicalities of the school week.  The tribunal is not satisfied that the care arrangements for [the child] are equivalent to the examples in the Guide where hours might be considered instead of or in addition to nights.  The tribunal is therefore satisfied that nights of care should be used in determining [the child]’s actual care.

11. As there are 18 school term fortnights in 2022, and Mrs Twentyman has four nights of care each school term fortnight, she can be expected to have 72 nights of care during the school terms.  There are 16 weeks or 112 nights of holidays of which Mrs Twentyman has half, which is 56 nights.  This means that she has 128 nights over the course of 2022, which is 35% of the care.  Mr Twentyman is the only other care provider, which means that he provides 65% of the care.

12. It follows that the care percentages of 34% for Mrs Twentyman and 66% for Mr Twentyman must be revoked.  When a person provides 35% of the care, the cost percentage changes from 24% to 25%.  This means that the tribunal is required to revoke the care percentages determined by the objections officer pursuant to section 54F of the Act.  The tribunal must also determine new care percentages pursuant to section 50 of the Act.

13. The tribunal is of the view that the proper date of effect for the new care percentages is the date when the Queensland Government announced a later start for Term 1 in 2022.  This date is 9 January 2022.  That is the date that the actual care changed because, from that date, Mrs Twentyman was likely to provide 35% of [the child]’s care.

14. The tribunal therefore revokes the existing care percentages for [the child], with effect from 8 January 2022 and makes a new care percentage determination for [the child] that Mr Twentyman has 65% of her care and Mrs Twentyman has 35% of her care from 9 January 2022.

DECISION

The tribunal sets aside the decision under review and in substitution decides that, from 9 January 2022, Mr Twentyman has 65% of [the child]’s care and Mrs Twentyman has 35% of [the child]’s care.