Cordray and Child Support Registrar (Child support)

[2021] AATA 4526

Cordray and Child Support Registrar (Child support) [2021] AATA 4526 (30 September 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/AC022129

APPLICANT:  Mr Cordray

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member L Rieper

DECISION DATE:  30 September 2021

DECISION:

The Tribunal sets aside the care percentage decision under review and, in substitution, decides that the care percentage is 47% to Mr Cordray and 53% to [Ms A] from 18 May 2021.

CATCHWORDS

CHILD SUPPORT – percentage of care – care from the start of the child support assessment – appropriate to calculate care percentage based on hours instead of nights – 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 Cordray and [Ms A] are the separated parents of [Child 1] and [Child 2] (the children).  A child support case has been registered with Services Australia – Child Support (Child Support) since 18 May 2021, and Mr Cordray is assessed as the parent liable to pay child support to [Ms A].

2. On 24 May 2021, the child support liability was assessed on the basis that [Ms A] had 72% care and Mr Cordray had 28% care of the children since 18 May 2021.

3. On 28 May 2021, Child Support made a decision to correct an error in the assessment, and changed the care records to reflect that [Ms A] had 62% care and Mr Cordray had 38% shared care of the children since 18 May 2021. This error correction was a result of the parties agreeing to the nights of care that they each had, and Child Support failing to recognise this in their decision on 24 May 2021.

4. On 12 July 2021, Mr Cordray objected to the decision of 28 May 2021, and notified Child Support that since 1 May 2021 he had had 45% care of the children when the number of hours of care were applied. 

5. On 11 August 2021, a Child Support objections officer disallowed the objection.

6. On 23 August 2021, Mr Cordray applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal seeking an independent review of the objection decision. The application was heard on 30 September 2021.  Mr Cordray attended the hearing by telephone and gave evidence on oath.  [Ms A] declined to participate in the proceedings and the hearing proceeded without her.  There was also no representative of the Child Support Registrar in attendance at the hearing.

7. The Tribunal had before it the Statement and Documents provided by Child Support pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975 (documents numbered 1–92).

ISSUES and CONSIDERATION

1. The relevant legislation is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988.

2. Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that the parents will have in relation to the children. 

3. In this case Child Support’s records indicate that on 18 May 2021 [Ms A] advised that she had 72% care of the children and Mr Cordray had 28% (folio 18). On 20 May 2021 Mr Cordray advised that he had 38% care and [Ms A] had 62% care (folio 25).  According to Child Support this was based on nights of care. [Ms A] agreed to these percentages based on nights of care.

4. Mr Cordray now says that the percentage of care should be determined using hours of care.  He first raised that with Child Support on 22 June 2021 (folio 45) and formalised the request on 12 July 2021 (folio 46).  [Ms A] does not object.

5. The issue for the Tribunal to determine in this case is the percentage of care applicable from the start date of the assessment.

6. Section 54A of the Act provides that the Registrar may assess the level of care on the number of nights that a parent has during a care period.  It may also be worked out on other bases if it is appropriate to do. Sometimes care is calculated on the basis of the number of hours that a child is in the care of each of the parents.

7. According to Child Support’s records, Mr Cordray initially advised that:

   …in an 8 day period, he works 2 day shifts, 2 nights shifts and has 4 days off. and out of those 8 days, he has them three nights, but advised that he has 1 or two full days on top of that due to his night shifts.

   Child Support then noted that:

   we determined that in an 8 day period he was having around 90 hours of care, which is around 47%.

   (See folio 45.)

8. Child Support’s note of 12 July 2021 (folio 46) indicates that at that time Mr Cordray advised that he had 45% care of the children.

9. Mr Cordray told the Tribunal that on the days when he has care of the children, being the four in every eight days he does not work, he has them from about 8.20 am until 5.00 pm.  He advised that he had done his own calculations but had lost them.  He had also calculated 90 hours of care in an 8-day period which the Tribunal is satisfied equates to 47% care of the children.

10. Mr Cordray also said that he has some additional care, such as a couple of hours between nightshifts or for an extra day when he takes annual leave, but the usual pattern is as advised to Child Support.  He also said that he did not initially raise any issue about the care being determined by nights in care because he did not realise there was any alternative.

11. [Ms A] does not disagree with the calculations (see folio 75).

12. Child Support’s policy on determining the pattern of care other than by way of using the nights of care is set out in part 2.2.1 of the Child Support Guide:

    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.

    …

    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.

13. Having considered all of the evidence the Tribunal is satisfied that this is a matter in which it is appropriate to use a care percentage calculation based on hours of care.  In particular Mr Cordray has more than “a small amount” of additional daytime care.  It is a significant number of hours of care.  The Tribunal is also mindful that [Ms A] does not dispute either the appropriateness of using hours of care or Mr Cordray’s calculations.

14. The Tribunal is therefore satisfied, based on the evidence before it, that hours of care is the most appropriate way to calculate the percentage of care in respect of the care that is provided for the children from 18 May 2021, being the date from which liability to pay child support arises.  There is no dispute as to the calculation of care made by Child Support, being 47% to Mr Cordray and 53% to [Ms A].

15. The Tribunal notes that the original decision was communicated to the parties by letters dated 28 May 2021. Mr Cordray lodged a written objection to that decision on 12 July 2021, which is more than 28 days after the date of the decision. The Tribunal does not have before it sufficient information to establish how Mr Cordray was served with notice of the decision on 28 May 2021. Child Support may consider it appropriate to make a determination under 87AA of the Child Support (Registration and Collection) Act 1988 in respect of the date of effect of the reviewed care percentage decision. 

DECISION

The Tribunal sets aside the care percentage decision under review and, in substitution, decides that the care percentage is 47% to Mr Cordray and 53% to [Ms A] from 18 May 2021.