Bachert and Child Support Registrar (Child support)

[2020] AATA 1409

Bachert and Child Support Registrar (Child support) [2020] AATA 1409 (30 March 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/PC018428

APPLICANT:  Ms Bachert

OTHER PARTIES:  Child Support Registrar 

TRIBUNAL:Member R King

DECISION DATE:  30 March 2020

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the percentage of care of [Child 1], [Child 2] and [Child 3] is recorded as 75% to Ms Bachert and 25% to [Mr A], with effect from 24 October 2019.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – parents residing under one roof – 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 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. Ms Bachert and [Mr A] are the parents of [Child 1] (dob 2004), [Child 2] (dob 2007) and [Child 3] (dob 2013).  After Ms Bachert and [Mr A] separated, [Mr A] paid child support to Ms Bachert in accordance with an administrative assessment, that recorded Ms Bachert as having 100% of the care of the three children.

2. On 24 October 2019, [Mr A] contacted the Child Support Agency and advised that, while he and Ms Bachert remained separated, they were now living under the same roof and he was sharing care of the three children.  On 13 November 2019, the CSA accepted that [Mr A] had equally shared care of the children and recorded the care percentages as 51% to Ms Bachert and 49% to [Mr A], with effect from 24 October 2019.

3. On 19 November 2019, Ms Bachert objected to the care percentage decision for the three children, telling CSA that [Mr A] was a fly-in-fly-out (FIFO) worker and was only home one week in three.  

4. On 16 January 2020, an objections officer disallowed Ms Bachert’s objection.  The objections officer was satisfied that [Mr A] made a financial contribution to the care of the three children and noted the CSA policy of assigning equally shared care when separated parents live under the same roof. 

5. On 17 February 2020 (within 28 days of receiving the objection decision), Ms Bachert applied to the Tribunal for review.  [Mr A] did not apply to be added as a party to Ms Bachert’s application.

6. The Tribunal conducted a hearing on 30 March 2020.  Ms Bachert participated by conference telephone and provided sworn evidence. 

CONSIDERATION

1. Ms Bachert told the tribunal that there was no court order or parenting plan with respect to care of the children. 

2. Ms Bachert told the tribunal that [Mr A] had been working on a FIFO basis prior to October 2019 but that his employment was casual and variable.  She said that towards the end of 2019, he obtained regular and permanent work, and had a roster that required him to work away from home for two weeks in every three-week period.  This meant that he was only home one week in three and he was not therefore able to provide equal care of their children. 

3. Ms Bachert told the tribunal that [Mr A] made regular contributions to the fortnightly rent and helped her out intermittently with some other costs such as vehicle insurance or school fees.  However, she said that there is no regular arrangement and his contribution is limited to situations when she has to pay a bill and has run out of money.  Ms Bachert told the tribunal that she makes regular payments for all utilities and for her car.  She also purchases clothes for the children and has responsibility for most school-related costs.

4. Ms Bachert told the tribunal that [Mr A] kept in regular contact with the children during the two-week periods he was working.

5. The tribunal notes that [Mr A] did not avail himself of the opportunity to provide evidence in this matter and that Ms Bachert’s evidence was consistent with information she had provided the CSA, as recorded in the hearing papers.

Application of the law

1. The relevant provisions are contained in the Child Support (Assessment) Act 1989 (“the Act”). The Child Support 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 Child Support Agency for an assessment, the pattern of care must be determined, and a care percentage recorded for each parent. The evidence before the tribunal suggests that the CSA initially determined that Ms Bachert had 100% of the care of the three children.

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, the original care percentage determination is revoked and a new care percentage determined that does correspond with the actual percentages of care provided by each parent.

4. As a general rule, if the CSA is notified or becomes aware that the actual care percentages do not reflect the original section 50 determination more than 28 days after the change of care day, the section 54F determination has effect, for the person with increased care, from the day before the notification or the date when the CSA first became aware that the original determination did not reflect actual care percentages. However, if special circumstances prevented a party from notifying a change of care within 28 days, the new care determination can have effect from an earlier date.

5. Neither the original decision-maker nor the objections officer made findings in respect of special circumstances and therefore determined that [Mr A’s] increased care had effect from his date of notification.

6. Under section 54A of the Act, the starting point for any determination of care percentage is the number of nights of care provided by each parent over a designated care period. The Child Support Guide advises that hours of care may be taken into consideration if there is a risk that a calculation based solely on nights misrepresents the level of care provided. As child support payments defray the cost of care, consideration must be given to the extent to which a pattern of care is consistent with the cost of care.

7. The evidence before the tribunal indicates that both parents contributed to the cost of the care of their three children.  The tribunal is of the view that insofar as these contributions are disproportionate to the care percentage, it is preferable to address any inequities separately from percentage of care.  For example, there are provisions that allow certain payments to be treated as payments of child support in some circumstances.  This means that nights of care should be used as a starting point.

8. Under section 54F of the Act, the tribunal has to determine that pattern of care for the three children as at 24 October 2019, when [Mr A] contacted the CSA to advise that he was living under the same roof as Ms Bachert and sharing care of the children. There is no evidence before the tribunal as to exactly when [Mr A] commenced his regular FIFO roster. However, the tribunal notes that [Mr A] told the CSA in November that he was currently working casually but was hoping to commence full-time employment on 9 December. This is consistent with Ms Bachert’s evidence. The tribunal accepts Ms Bachert’s evidence that prior to commencing full-time work, [Mr A] had reasonably regular casual shifts that required him to be away from home for periods of two weeks at a time.

9. This means that, from 9 December 2019, it is likely that [Mr A] was living under the same roof as Ms Bachert and in a position to provide care of the children for a maximum of one third of the time.  While Ms Bachert’s evidence indicates that [Mr A] maintained involvement with the children during the two-week periods when he was at work, he was not in a position to provide routine care for two of every three weeks. 

10. The tribunal is of the view that [Mr A’s] casual work arrangement, when he contacted the CSA on 24 October probably allowed him more time at home than was the case when he later commenced full-time work.  However, Ms Bachert’s evidence is that care was shared when [Mr A] was home.  There is no evidence to suggest that [Mr A] was the sole carer of the three children during the periods when he was at home.

11. The objections officer had reference to CSA policy guidelines, which state that, when parents are separated under the same roof and there is no basis for determining a care percentage based on actual care, it should be determined that they have equally shared care.  The tribunal is of the view that the evidence regarding [Mr A’s] work arrangements is such as to invalidate any presumption of equally shared care. 

12. The tribunal accepts that the evidence is weak with respect to actual care when [Mr A] was at home, especially since [Mr A] chose not to provide evidence.  The tribunal does not have access to [Mr A’s] rosters during the period he was employed casually, and Ms Bachert was unable to provide work dates.  However, the tribunal accepts that [Mr A] was commonly, if not regularly absent for periods of two weeks at a time.  This means that he could not have been equally sharing the care unless he was working no more than 50% of the time and had exclusive care of the children at all times when he was home.  There is no basis for such a finding.

13. The tribunal thinks it more likely that [Mr A] was at home approximately 50% of the time prior to 12 December and had, at most, equally shared care when he was home.  This means that his care percentage when he contacted the CSA on 24 October 2019 was 25% and Ms Bachert’s care percentage was 75%.  It is possible that [Mr A’s] care percentage dropped below 25% once he commenced full-time work, probably on or around 12 December 2019.  However, that is a matter for a separate determination.  The tribunal is reviewing a decision regarding the care percentages as at 24 October 2019.   

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the percentage of care of [Child 1], [Child 2] and [Child 3] is recorded as 75% to Ms Bachert and 25% to [Mr A], with effect from 24 October 2019.