Cordray and Liston (Child support)

[2022] AATA 949

Cordray and Liston (Child support) [2022] AATA 949 (10 March 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC023023

APPLICANT:  Mr Cordray

OTHER PARTIES:  Child Support Registrar

Ms Liston

TRIBUNAL:Member Y Webb

DECISION DATE:  10 March 2022

DECISION:

The decision under review is affirmed.

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 affirmed

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. This review is about the percentages of care of Mr Cordray and Ms Liston in relation to their child who is almost 16 years old (“the child”).

2. A child support assessment has been in place since 27 February 2007 and has been collectable by the Child Support Agency since 18 November 2021.

3. The pre-existing percentages of care for the child were determined by the Child Support Agency to be 51% care to Mr Cordray and 0% care to Ms Liston from 30 November 2012.

4. On 9 August 2021 Ms Liston contacted the Child Support Agency and notified that there had been a change in the care of the child since 1 June 2021. She stated that the child had been in her 100% care since 1 June 2021.

5. The Child Support Agency contacted Mr Cordray on 12 October 2021 and 13 October 2021 and he responded that the child had run away from home months ago.  He had heard that the child was staying with his mother.  He asserted that the date that the child left his care was 1 August 2021.

6. On 18 October 2021 the Child Support Agency notified the parents that it had decided that the child had been in Ms Liston’s 100% care since 1 June 2021.

7. On 20 October 2021 Mr Cordray objected to that decision contending that the child had been in Ms Liston’s care since 1 August 2021.  Mr Cordray provided a calendar of care in relation to the child.

8. Ms Liston provided a written submission and a number of third party statements in support of her contention that the child had been in her 100% care since 1 June 2021.  Prior to the hearing Ms Liston provided an updated letter from [Case Worker A] from [Welfare Agency 1] (this was marked as Exhibits B1-B4).

9. On 17 December 2021 an objections officer disallowed Mr Cordray’s objection on the basis that the evidence supported a determination that Ms Liston had 100% care from 1 June 2021.

10. On 24 December 2021 Mr Cordray requested a review by the Administrative Appeals Tribunal (the Tribunal).

11. Mr Cordray and Ms Liston attended the hearing on 10 March 2022 by way of a telephone conference and both parents gave sworn evidence.

12. The Child Support Agency provided a bundle of papers relevant to this matter and these were marked (as a bundle) as Exhibit C1. 

ISSUES

1. The issues for the Tribunal to determine are:

   a)What were the care arrangements in relation to the child in the relevant care period?

   b)Should a new determination of a percentage of care for the child be made? If so, what is the percentage of care and from when should it apply?

CONSIDERATION

1. The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).

2. Percentage of care determinations are made under section 49 and/or section 50 of the Assessment Act. Section 49 of the Assessment Act provides authority to make a determination in circumstances where a parent has no care of the child(ren). Section 50 of the Assessment Act provides authority to make a determination of a percentage of care in situations where a person has a pattern of care. Where the Child Support Registrar is satisfied that a responsible person has had, or is likely to have, a pattern of care for the child(ren) during the relevant care period, the Registrar must determine that person’s percentage of care for the child(ren) during the care period.

3. The Assessment Act provides that the care percentage must be determined for a “care period” which is effectively defined as “such period…as the Registrar considers to be appropriate having regard to all of the circumstances”. Usually (but not necessarily) the care period will be a 12-month period starting from the date the care of the child changed and reflect the pattern of care that a person has had, or is likely to have, during the care period. The Tribunal is satisfied that a 12-month care period starting from 1 June 2021 was appropriate in this case (noting that this will apply only until a further care determination is made).

4. The pattern of care can be established either according to a “care arrangement” (such as court orders or a parenting plan) or the actual care that is taking place. In this case Mr Cordray and Ms Liston stated that there were court orders but they were made more than 10 years ago.  The parents stated that the court orders have not been followed for many years and neither parent has taken action to restore the care detailed in the court orders. The Child Support Agency documents do not refer to or enclose any court orders, parenting plans or written care agreements and the Tribunal finds that it is appropriate in these circumstances to make a determination based on the actual care.

5. For the purpose of determining whether a person “has had, or is likely to have, a pattern of care for the child”[1] the Tribunal takes into account evidence of the care the person has had, or the actual care, from the date of the asserted change in care (1June 2021) and up to the time of the original determination by the Registrar (18 October 2021) and evidence of the pattern of care the person is, or was, likely to have from that point in time.

   [1] Paragraph 50(1)(a) of the Assessment Act

6. Section 54A of the Assessment Act provides that the Registrar may assess the level of care on the number of nights that a parent has during a care period.

7. In this case, Mr Cordray and Ms Liston did not contend that nights were an unsuitable measure of the care of the child and the Tribunal finds that nights are an appropriate method of ascertaining the care in this case.

8. The initial issue which the Tribunal needs to determine is whether the pattern of care changed for the child and whether the care that was occurring did not correspond with the pre-existing care determination of 51% to Mr Cordray and 0% care to Ms Liston.

Mr Cordray’s evidence and contentions

1. Mr Cordray told the Child Support Agency, when contacted in October 2021, that the child ran away from home some months ago and that he had heard that the child was staying with Ms Liston.  He said that this had been the case since 1 August 2021.

2. Mr Cordray provided two care calendars: the first was dated 21 October 2021 which stated that the child slept at his grandparents’ home (Mr Cordray’s parents), a mate’s place and at the child’s sister’s place in the period 1 June 2021 to 7 June 2021.  He did not state where the child was living from 8 June until 22 July 2021 but he stated that from 23 July 2021 the child was living with Ms Liston.  He stated that on 8 August 2021 the child stayed with a friend but from 9 August 2021 until 13 October 2021 the child was living with Ms Liston.

3. Later, Mr Cordray provided a revised care calendar dated 22 December 2021[2].  This stated that in the period beginning 1 June 2021 to 9 August 2021 the child stayed 24 nights with his grandparents (Mr Cordray’s parents); 15 nights with “mates” or friends; seven nights with Ms Liston and on 17 nights he was not sure where the child was staying.  He also stated that he did not know where the child was staying from 9 August 2020 to the current date (22 December 2021).

   [2] C1-pages 123-124

Ms Liston’s evidence and contentions

1. Ms Liston was adamant that the child was in her care from 1 June 2021.  She stated that until April 2021 she didn’t have contact with the child even though she tried to have contact.  She stated that the child was living with Mr Cordray’s parents but he came to live with her on a permanent basis from 1 June 2021.  Ms Liston stated that the child did stay with his grandparents on three nights in the period from 1 June 2021 to November 2021 but she denied that he ever stayed overnight with his sister.

2. Ms Liston stated, as part of the objections process, that the child also stayed one night with his grandparents on 5 November 2021 but that he returned to her full-time care the next day.

3. Ms Liston stated that the child wishes to continue to reside with her.

4. Ms Liston provided three letters from [Case Worker A] from [Welfare Agency 1].  One of those letters related to the child’s bail arrangements (which are outside of the period under consideration by the Tribunal) but two of the letters stated that the child was in Ms Liston’s 100% care and the most recent of those letters state that Ms Liston has confirmed that the child has been in her 100% care since 1 June 2021.

5. Ms Liston also provided multiple letters from family members and other relatives and a friend all attesting to the child being in her care since 1 June 2021.

The Tribunal’s consideration

1. The Tribunal carefully considered all of the available evidence.

2. While the Tribunal accepts that the child spent occasional nights with his grandparents and possibly friends, the evidence strongly tends to a conclusion that for almost all of the time from 1 June 2021 the child has been residing with Ms Liston.  This is especially the case when considering the initial care calendar provided by Mr Cordray and his statements to the Child Support Agency when first contacted that the child had run away from home months ago and that the date of the care change “sounds to be correct” and that “he’s heard the child is staying with his mother”.  In relation to the initial care calendar essentially, the only area of disagreement regarding the child’s care was for the period 1 June 2021 to 22 July 2021 and for most of that time Mr Cordray did not provide evidence as to where the child was residing. 

3. Mr Cordray’s revised calendar of care was markedly different from the first.  He asserted that Ms Liston only had care for seven nights in the 70-day period from 1 June 2021 to 9 August 2021 and that he didn’t know where the child was residing from 9 August 2021. No supporting evidence was provided to corroborate the revised care calendar and the Tribunal is not persuaded of its accuracy.

4. Ms Liston was consistently adamant that the child was residing with her (except on the very occasional nights that the child was staying elsewhere). 

5. While the Tribunal accepts that the child stayed overnight occasionally with his grandparents and at a friend’s home it is satisfied that these occasions did not disrupt the pattern of care which was that the child was in Ms Liston’s care from 1 June 2021. The Tribunal is strengthened in that view especially by the third party letter from the [Case Worker] at [Welfare Agency 1] who stated that she had been providing support to the child and Ms Liston.  She supported Ms Liston’s claim of 100% care of the child since 1 June 2021.  In addition, Ms Liston provided multiple letters from her family and extended family attesting to the child being in her 100% care since 1 June 2021. 

6. While the Tribunal acknowledges that Mr Cordray provided his care calendars, he did not provide any third party statements regarding the care of the child in the period from 1 June 2021.  On balance, the Tribunal found Ms Liston’s evidence more persuasive.

7. Hence the Tribunal concludes that the care of the child was 100% to Ms Liston and 0% to Mr Cordray from 1 June 2021 with a date of effect of 9 August 2021 for Ms Liston (this being the date of notification) and a date of effect of 1 June 2021 for Mr Cordray (this being the change of care date).

8. As the Tribunal agrees with the decision of the objections officer, it affirms the decision under review.

DECISION

The decision under review is affirmed.