Hunbery and Hunbery (Child support)

[2025] ARTA 1109

Hunbery and Hunbery (Child support) [2025] ARTA 1109 (9 May 2025)

Applicant/s:  Mr Hunbery

Respondent:  Child Support Registrar    

Other Parties:       Ms Hunbery

Tribunal Number:   2024/SC029011 

Tribunal:  General Member J Moir

Place:Sydney

Date:9 May 2025

Decision:The Tribunal sets aside the decision under review and in substitution decides to set a percentage of care of 50% to both parents for [the children] from 1 July 2024.  

CATCHWORDS 

CHILD SUPPORT – percentages of care – residing under one roof during the care period – change in care – both parents claimed they had more care – hours of care more accurate than nights in care – agreed to equal 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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.

Statement of Reasons

BACKGROUND

1. Mr Hunbery and Ms Hunbery are the parents of [the children].  There is no parenting plan, nor any parenting orders in place.

2. Services Australia – Child Support (Child Support) registered a child support assessment for each of the children on 16 June 2024 and the percentage of care was recorded as 72% care to Ms Hunbery and 28% care to Mr Hunbery from 21 May 2024.  Mr Hunbery was the paying parent and Ms Hunbery was the payee parent.

3. On 21 July 2024, Ms Hunbery notified Child Support that there had been a change in the care arrangement for the children from 1 July 2024 and that the new care arrangement equated to the children being in her care 235 nights a year and in Mr Hunbery’s care 130 nights per year.  Child Support calculated this reflected a care percentage of 65% to Ms Hunbery and 35% to Mr Hunbery. 

4. Child Support sought Mr Hunbery’s views, and he did not agree with this, stating that he had more care than Ms Hunbery had advised.  Neither parent provided any written evidence in support of their positions.

5. On 9 September 2024, Child Support accepted Ms Hunbery’s report and decided to change the care percentage for each of the children to 65% to Ms Hunbery and 35% to Mr Hunbery from 1 July 2024.

6. On 30 September 2024, Mr Hunbery lodged an objection to this decision and provided some written material in support of his claim.  Ms Hunbery maintained her original view, but provided no written evidence in support.

7. On 10 December 2024 the objections officer disallowed the objection.

8. On 12 December 2024 Mr Hunbery asked this Tribunal to review this decision.

9. The application was heard on 2 May 2025.  Mr Hunbery and Ms Hunbery spoke to the Tribunal by conference telephone and gave evidence under affirmation.  The Child Support Registrar did not attend the hearing.  In addition to the parents’ evidence, the Tribunal had regard to the documents provided by Child Support (numbered 1–124), and supplementary papers numbered 1–9, a copy of both of which had been sent to the parties.

10. The Tribunal notes from the Child Support papers that a change of care to 50% to each parent was made from 16 September 2024, based on a notification from Mr Hunbery on 20 September 2024.  That decision is not disputed by the parents and will not be considered in this review.   

ISSUES

1. The law relevant to this case is the Child Support (Assessment) Act 1989 (the Act).  This provides that a parent or non-parent carer’s percentage of care for a child is determined based on the care he or she is likely to provide for the child in a care period. The percentage of care is used in a child support assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they are providing for that child and is one aspect of the formula used to calculate the rate of child support.

2. The issues for the Tribunal to determine in this case are:

   ·Was there a change in care for the children in the relevant care period?

   ·Should the original care percentage be revoked? and, if so,

   ·What percentages of care should be used, and from what date?

CONSIDERATION

Was there a change in the care of the children in the relevant care period?

13.Subsection 54A(1) of the Act sets out how to work out the actual care, and extent of care, a person has of a child. It states:

(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.

1. The “care period” is the period the Child Support Registrar (or the Tribunal) considers to be appropriate, having regard to all the circumstances (section 50 of the Act).  The Department’s policy in this regard, as set out in section 2.2.1 of the Child Support Guide, is that a care period is generally a 12-month period from the day on which the actual care for a child changed, but can be less, or more, depending on the circumstances.  Whilst this policy is not binding on the Tribunal, the Tribunal will generally adopt the policy provided it is not in conflict with the legislation or case law.  In this case, Child Support used a 12-month period. However, because there has been a new care determination from 16 September 2024, the Tribunal elected to use a care period from 1 July 2024 to 15 September 2024, because this was the only period in dispute.

2. At the hearing, the Tribunal heard that the parents separated in around October 2023, but did not apply for a child support assessment until mid 2024.  They lived at the same premises after they separated, until Ms Hunbery moved out on 15 August 2024.  As Ms Hunbery’s new premises was not set up to accommodate the children when she moved out, they remained living with Mr Hunbery for a few weeks.  However the parents agreed that Ms Hunbery’s involvement in the children’s care continued largely unchanged for this period. She came to the house daily and continued to do her usual caring activities even though she slept elsewhere.

3. Mr Hunbery told the Tribunal that he worked each weekday, leaving the house at about 7.30 am to start work at 8 am, and returning home about 4.30 pm after finishing work at 4 pm.  Ms Hunbery worked on a weekly roster as a [Occupation 1].  Generally she would go to work at about 5 pm and return home somewhere between midnight and 3 am, depending on whether she was working additional hours.  Her roster changed weekly, and she would sometimes be asked to do additional shifts.  Whenever she was at work, Mr Hunbery was responsible for the children.  Generally if she wasn’t at work, she was responsible for them.  He said that Ms Hunbery would get the children up and ready in the morning because he had to leave for work, and agreed with her evidence that she would often have started to get their dinner ready and get them ready for bed before she left for work.  However he said that he would finish preparing dinner and get them to bed.

4. Mr Hunbery referred to calendars he had provided to Child Support where he had
   colour-coded the days in July, August and September 2024, indicating (in pink) the nights when Ms Hunbery was not working, and therefore with the children, the nights (in green) when she was working and he had the care for the children, and the nights (in brown) when they were both available to be with the children.  He said that he prepared these calendars on the advice of his lawyer and that they were accurate.  The Tribunal noted that the calendars showed that in each of these months Mr Hunbery had substantially more care for the children than Ms Hunbery did.  He agreed that this was what the calendars indicated, but said that in fact he thought it was probably the case that they each had 50% of the care for the children.  The children were with Ms Hunbery whenever she wasn’t at work, which was not reflected by recording nights in care.  When asked, he said that no one from Child Support had talked with him about whether it would be more accurate to calculate the care percentage based on the hours the children spent in the care of each parent rather than the nights in care.

5. Ms Hunbery agreed that she was working at night during the relevant period.  However her employer’s policy is that staff cannot work more than 5 night shifts a week, so she didn’t work more than this, and sometimes worked less.  She said that even when she worked overnight, she would always get the children up in the morning and get them ready for the day and take them to school.  Their youngest child, [Child A], was just [Age] at the time and she cared for him during the day. She also said that she usually picked the other [children] up from school and generally had them ready for bed and dinner cooked for the children (and Mr Hunbery) before she left for work. She agreed that Mr Hunbery was responsible for the children when she was at work.  She hasn’t been able to access her historical work rosters to confirm the dates she worked.  She did not think that the calendars accurately reflected the care, noting that it appeared that the children were only in her care for three nights in August, which was not correct.

6. Ms Hunbery said that the routine didn’t really change after she moved out, on 15 August 2024, because the children did not move with her straight away.  For a few weeks, she would return to her home after work, sleep for a few hours and then go to Mr Hunbery’s house first thing to get the children up and ready, and take them to school as needed.  She continued to pick them up from school and get them ready for bed and prepare their dinner before going to work.  On occasion if Mr Hunbery was running late getting home from work, she would take them to work with her and he would pick them up from there. Occasionally she would sleep on the couch at Mr Hunbery’s place rather than at her own place to make it easier in the morning.  It was only after the children started to stay with her that the arrangement changed, and each parent cared for them at their own place. She had asked Child Support to make the change to 50/50 care earlier than Mr Hunbery’s notification on 20 September 2024, but somehow this didn’t proceed.  She had also spoken to Child Support about whether there were “special circumstances” to calculate care differently, but this didn’t progress either. Ultimately, Ms Hunbery told the Tribunal that although she probably did more of the day-to-day caring, the care should be recorded as 50% each during the relevant period because that was “fair”.  

7. The parents had initially told Child Support that the care for the children was not shared equally during this brief period, each claiming that they had more than 50% of the care. However, at the hearing, they agreed that whilst they were separated under the one roof, and for the few weeks after Ms Hunbery moved out, they shared the time they were each responsible for the children relatively equally.  The Tribunal was satisfied from their evidence at the hearing, that they managed, within the constraints of their work commitments to generally share the care of the children equally.  

8. The Tribunal is therefore satisfied that in the care period commencing 1 July 2024 the parents each had 50% of the care for the children.  This was a change in the recorded pattern of care of 72% to Ms Hunbery and 28% to Mr Hunbery.

Should the original care determination be revoked and from what date?

1. Section 54F of the Act provides that if sections 51 and 54G do not apply, the Registrar must revoke a percentage of care determination made under section 49 or 50 of the Act, if:  

   ·they become aware that the percentage of care recorded does not correspond with the actual care taking place; and

   ·the “cost percentage” would change if a new percentage of care was determined.  

2. There is no suggestion that sections 51 and 54G apply in this case. 

3. Section 55C of the Act provides that a “cost percentage” is calculated based on the percentage of care for the child.

4. Based on the table at section 55C of the Act, the change in Mr Hunbery’s care percentage from 28% to 50% equates to a change in the cost percentage from 24% to 50%.  Ms Hunbery’s cost percentage correspondingly changed from 76% to 50%.

5. Given the changes in the care and cost percentages, subsection 54F(1) provides that the original care determination must be revoked.

6. Subsection 54F(3) of the Act provides that if Child Support is notified or becomes aware within 28 days of the change of care, the date of effect of a revocation of the previous care percentage will be the day before the change, and the date of effect of the change will be the date of the change.

7. Ms Hunbery notified Child Support of the change in care on 21 July 2024, which is within 28 days of 1 July 2024, when the change was reported to have occurred. On this basis, the care percentages for both parents are revoked from 30 June 2024, the day before the change of care.

What should the new percentages of care determination be and from what dates?

1. Section 50 of the Act provides that a new determination of a percentage of care for a child must be made where an existing determination has been revoked and the Registrar, or the Tribunal standing in the shoes of the Registrar, is satisfied that each person has had, or is likely to have, a pattern of care.  Section 54F of the Act provides that if a care determination is revoked, a new care determination must be made under either section 49 or 50.  Section 50 is the relevant section in this case, as section 49 applies where one person has no pattern of care for the child.  The new assessment is applied from the day after the revocation of the previous assessment.

2. As noted above, the Tribunal is satisfied that there was a change in care for each of the children to 50% care to each parent, with effect from 1 July 2024.

DECISION

The Tribunal sets aside the decision under review and in substitution decides to set a percentage of care of 50% to both parents for [the children] from 1 July 2024.  

Date of hearing: Friday 2 May 2025