Conrad and Conrad (Child support)

[2019] AATA 5105

Conrad and Conrad (Child support) [2019] AATA 5105 (2 September 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC016535

APPLICANT:  Ms Conrad

OTHER PARTIES:  Child Support Registrar

Mr Conrad

TRIBUNAL:Member J D'Arcy

DECISION DATE:  2 September 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 – whether it is appropriate to consider daytime care allowed for in the court order – appropriate to consider number of night - 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 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. This review concerns the care percentages used in a child support assessment made by the Department of Human Services – Child Support (Child Support) for [Child 1] and [Child 2], the [children] of Ms Conrad and Mr  Conrad.

2. On 21 November 2017 Child Support assessed Mr Conrad to have 57% care of [Child 1] and [Child 2] and Ms Conrad to have 43% of care. The percentages were based on a Family Court order dated [in] February 2017 which stated:

   2.   That the children live with each parent as follows:

   a.with the mother from 9am on Sunday to the commencement of school or 6pm if on a non-school day on Wednesday in each week; and

   b.with the father at all other times.

3. On 24 November 2017 Ms Conrad objected to the decision seeking a determination of a 50% assessment of care on the basis that she has the care of the children until 6:00 pm on Wednesdays; and that the care percentages should be based on hours and not nights of care.

4. On 20 February 2018 an objections officer disallowed the objection, finding that the assessment of percentage of care in this case is more appropriately based on nights of care as the hours of care that Ms Conrad provides in the school holidays are not significant.

5. Ms Conrad applied for a review of the decision to the Administrative Appeals Tribunal (the tribunal) on 15 May 2019.

6. Child Support provided Ms Conrad and the tribunal with the subsection 37(1) of the Administrative Appeals Tribunal Act 1975 statement and documents (186 pages). Ms Conrad provided additional documents, A1 to A2.

7. The hearing took place with Ms Conrad by telephone on 27 August 2019. Mr Conrad had been advised of the date and time of the hearing and was sent a reminder text the day before the hearing. On the morning of the hearing he stated that he would not be available at the scheduled hearing time but rather after 1:00 pm. The tribunal decided to proceed in Mr Conrad’s absence.

8. The tribunal deferred making a decision for seven days to allow Mr Conrad to make a written submission on the application for review.

9. On 30 August 2019 Mr Conrad provided the following comments:

   Thank you for the opportunity to respond to the matter of 2019/MC016535. As per our previous discussions / correspondence - you have a copy of our court orders as requested. This clearly outlines the care arrangements which have been in place since separation, for well over 4 years now.

   Despite exhaustive and distressing amounts of correspondence, there has not, and will not be changes to these orders. I appreciate your time.

1. On 3 September 2019 the tribunal determined the application for review.

ISSUES

1. The issues which arise in this case are:

   ·      should there be a change to the care percentages used in a child support assessment for the period? and, if so,

   ·      what care percentages should be used? and

   ·      what is the date of the change to the care percentages?

CONSIDERATION

Has there been a change to the care pattern for [Child 1] and [Child 2]?

12.Ms Conrad asserts that she and Mr Conrad both provide 50% of care of [Child 1] and [Child 2] in accordance with the Family Court order but that Child Support’s calculation based on nights of care has produced an unfair result.

1. Care will generally be worked out based on the number of nights that the child is likely to be in the care of the person during the care period. Section 54A of the Child Support (Assessment) Act 1989 states:

   Working out actual care, and extent of care, of a child

   (1)  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.

   (2)  The extent of care of a child that a person should have had, or is to have, under a care arrangement during a care period may be worked out based on the number of nights that the child should have been, or is to be, in the care of the person during the care period under the care arrangement.

(3)  For the purposes of this section, a child cannot be in the care of more than one person at the same time.

1. Section 2.2.1 of the Child Support Guide explains when hours of care may be used to determine a percentage of care:

   Care other than in nights

   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.

   Example: Camryn and Capricia have one child Viktor. Camryn works night shifts and so can only provide care for Viktor during the daytime. Camryn cares for Viktor for 45 hours per week while Capricia cares for Viktor every night. A percentage of care based on nights would not properly reflect the parents' care arrangements for Viktor and the Registrar would therefore determine the percentages of care based on the hours that each parent provides care for Viktor.

   Example: Albert and Daria have one child, Ahmed. Albert has 98% care of Ahmed and Daria has 2% care based on the number of nights care over a 12-month care period. During the 12-month care period, Ahmed stays 7 Saturday nights (from 4pm Saturday to 12 noon on Sunday) with Daria and the rest of the nights with Albert. Daria works night shifts and takes care of Ahmed every weekday from 8am until Albert returns from work at 6pm. This occurs for 40 weeks over 12 months. Daria requests that their care percentage be calculated using hourly care.

2. There is no persuasive evidence in Ms Conrad’s case that nights of care are not the best and most appropriate method of determining the percentages of care for [Child 1] and [Child 2].

3. The Family Court order clearly determines the nights of care and the additional hours of care that Ms Conrad provides after school on Wednesdays and school holidays, which does not warrant a calculation based on the hours of care. To make such a calculation would lead to uncertainty in the determination of care percentages. There is significant animosity between the parties and any additional hours that either party may care for the children could lead to unlimited requests for new determinations of the care percentages. The current situation provides certainty based on an order that has been in place for the past two and a half years.

4. The Child Support Guide clearly indicates those occasions where hours of care would produce the fairest result. Ms Conrad’s case does not fall into this type of case.

5. The tribunal finds that the parents were having care of the children according to the pattern of care set out in the Family Court order, and that pattern of care equates to Mr  Conrad having 57% care of [Child 1] and [Child 2] and Ms Conrad having 43% care of her [children].

DECISION

The decision under review is affirmed.