Bachert and Habig (Child support)

[2020] AATA 3668

Bachert and Habig (Child support) [2020] AATA 3668 (16 June 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC018798

APPLICANT:  Mr Bachert

OTHER PARTIES:  Child Support Registrar

Ms Habig

TRIBUNAL:Member Y Webb

DECISION DATE:  16 June 2020

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 - whether the date of notification of the care change was earlier than determined by the objections officer – no evidence of earlier notification - 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 is about the percentages of care of Mr Bachert and Ms Habig in relation to their two daughters (“the children”).  The children are now aged 16 and 13.

2. The child support assessment was first registered on 24 January 2018.

3. Since at least 1 June 2018 when court orders were made by the Federal Circuit Court of Australia, the percentages of care for the children were recorded by the Department of Human Services (“Child Support Agency”) as 86% care to Ms Habig and 14% care to Mr Bachert.

4. On 27 November 2018 Mr Bachert contacted the Child Support Agency and advised that from 7 September 2018 he had had shared care of the children in the pattern of seven nights on and seven nights off. 

5. The Child Support Agency contacted Ms Habig and she stated that she and Mr Bachert were trialling week about care but there were some issues with this arrangement and the matter would be returning to court in December 2018.

6. On 29 November 2018 a delegate of the Registrar decided that the care change should be refused.  The delegate made that decision primarily because the court proceedings were imminent.

7. On 10 December 2018 Mr Bachert objected to that decision.  He reiterated that he had had 50% care of the children from 7 September 2018 to 3 December 2018. 

8. In response to the objection Ms Habig agreed that that was the case.

9. On 5 February 2019 an objections officer decided that Mr Bachert’s objection should be allowed and that the care of the children should be recorded as 50/50 to each of the parents from 7 September 2018 effective on the child support assessment from 7 September 2018 for Ms Habig and from 27 November 2018 for Mr Bachert; this being the date of the notification of the care change.

10. On 7 April 2020 Mr Bachert requested review by the Administrative Appeals Tribunal (“the Tribunal”).

11. Mr Bachert and Ms Habig attended the hearing by way of a telephone conference on 16 June 2020 and both gave evidence on affirmation. 

ISSUES

1. The issues for the Tribunal to determine are:

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

   b)Should a new determination of a percentage of care for the children 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.

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. 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 during the relevant care period, the Registrar must determine that person’s percentage of care for the child 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, or is likely to have, during the care period. The Tribunal is satisfied that a 12-month care period was appropriate in this case (noting that this will continue to apply unless or until a further care determination is made and further noting that a subsequent change of care was notified and determined in December 2018).

4. In circumstances where there are no court orders or written parenting plans (or where there is a court order or parenting plan but it is not being followed) the care is established by considering the actual pattern of care that is taking place.  In this case, there were court orders dated 1 June 2018 granting Ms Habig 86% care of the children and Mr Bachert 14% care of the children but both parents agreed that in the relevant period from 7 September 2018 these orders were not being followed and the Tribunal so finds.

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

6. In this case, Mr Bachert and Ms Habig did not contend that nights were an unsuitable measure of the care of the children and the Tribunal finds that nights are an appropriate method of ascertaining the care in this case.

7. The initial issue which the Tribunal needs to determine is whether the pattern of care changed for the children and whether the care that was occurring did not correspond with the pre-existing care determination of 86% to Ms Habig and 14% to Mr Bachert.

8. In this case the Tribunal is satisfied that there was no dispute between the parents that the care which was occurring from 7 September 2018 was that the care of the children was equally shared between Mr Bachert and Ms Habig on a seven days on/seven days off arrangement.  Hence, the Tribunal finds that from the care period beginning 7 September 2018 the care of the children was 50/50 between Mr Bachert and Ms Habig. 

9. A care determination must be revoked if the Registrar is notified or otherwise becomes aware that the care that is actually taking place does not correspond with the existing percentage of care for the child and the responsible person’s cost percentage would change if a new determination were made: section 54F of the Assessment Act.

10. In the administrative formula, a parent’s notional contribution to the costs of the child by provision of care is called the cost percentage. Section 55C of the Assessment Act details how the percentage of care affects the cost percentage:

Cost percentages
Item	Column 1 Percentage of care	Column 2 Cost percentage
1	0 to less than 14%	Nil
2	14% to less than 35%	24%
3	35% to less than 48%	25% plus 2% for each percentage point over 35%
4	48% to 52%	50%
5	more than 52% to 65%	51% plus 2% for each percentage point over 53%
6	more than 65% to 86%	76%
7	more than 86% to 100%	100%

1. Prior to 7 September 2018, the pre-existing care was that Ms Habig had 86% care and Mr Bachert 14% care. Ms Habig had a cost percentage of 76% and Mr Bachert of 24%. The Tribunal’s determination will mean that Ms Habig will have a care percentage of 50% (administratively recorded by the Child Support Agency as 51%) and a cost percentage of 50%. Mr Bachert will have a care percentage of 50% (administratively recorded by the Child Support Agency as 49%) and a cost percentage of 50%. Accordingly, the Tribunal is satisfied that if new determinations were to be made, both parents’ cost percentages would change. As all of the requirements of subsection 54F(1) of the Assessment Act are met (and as section 54G of the Assessment Act does not apply because neither parent’s care decreased below 14%), the pre-existing determinations of percentage of care must be revoked in accordance with section 54F.

2. Subsection 54F(3) of the Assessment Act specifies when the revocation of the determination takes effect. The date of effect depends on whether the Child Support Agency was notified of the care change within 28 days after it occurred. The Tribunal has found that the care change occurred on 7 September 2018 and the notification of the change on 27 November 2018. As the Child Support Agency was notified more than 28 days after the change occurred, the revocation of the existing determination takes effect in accordance with subparagraph 54F(3)(b)(ii) of the Assessment Act which states:

   54F Determination must be revoked if there is a change to the responsible person’s cost percentage

   (1)   The Registrar must revoke a determination of a responsible person’s percentage of care (the existing percentage of care) for a child made under section 49 or 50 if:

   (a)the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person’s existing percentage of care for the child; and

   (b)the Registrar is satisfied that the responsible person’s cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person’s percentage of care for the child; and

   (c)section 54G does not apply; and

   (d)subsection (2) applies in relation to the individual.

   Note:The Registrar must make another determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).

   …

   3   The revocation of the determination takes effect at the end of:

   (a)if the Registrar or Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph 1(a) within 28 days after the change of care day for the responsible person – the day before the change of care day; or

   (b)if the Registrar or Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person and:

   (i)the responsible person’s care of the child has increased – the day before the Registrar or Secretary is notified, or otherwise becomes aware, of that matter; or

   (ii)the responsible person’s care of the child has reduced –the day before the change of care day.

3. Mr Bachert’s care of the children has increased and according to subparagraph 54F(3)(b)(i) his existing care percentage of 14% will be revoked from 26 November 2018 being the day before the Child Support Agency was notified of the care change.

4. Ms Habig’s care has decreased and according to subparagraph 54F(3)(b)(ii) her existing care percentage of 86% will be revoked from 6 September 2018 being the day before the change of care day.

5. An interim period does not apply in this case. Hence section 51 of the Assessment Act is not applicable. Having revoked the existing determinations, the Tribunal must now make new determinations of Mr Bachert’s and Ms Habig’s percentages of care under section 50 of the Assessment Act.

Date of effect on the assessment

1. It became evident in the hearing that Mr Bachert’s grievance was that the determination of 50/50 care was effective on the assessment for him from 27 November 2018, that being the date of notification of the change of care.  Mr Bachert considered this was unfair as he was providing care from 7 September 2018 but was still paying child support as if he still had 14% care for the period between 7 September 2018 and 27 November 2018.  Mr Bachert explained that he had had a number of health issues and surgeries and these affected his timely contact with the Child Support Agency.  In addition, he thought that Ms Habig had notified the Child Support Agency of the change in care of the children.  Furthermore, he stated that he did not believe that all of his contacts with the Child Support Agency were noted.

2. Ms Habig stated that she did notify the Child Support Agency of the change in care from 7 September 2018 but she is not sure exactly when she notified.  She stated that she also had a number of health issues around that time but she did tell the Child Support Agency that the care had changed to 50/50 for a 12 week period beginning 7 September 2018.  She stated that she feels at times as if the Child Support Agency is not noting all of the information provided.  She finds this very frustrating because she feels as if she is contacting the Agency constantly, but issues are not satisfactorily resolved.

3. In the absence of any verification by the Child Support Agency that the change of care from 7 September 2018 was notified prior to 27 November 2018, the Tribunal finds that 27 November 2018 was the time that the Child Support Agency became aware that a change in care had occurred.

4. Section 54B of the Assessment Act sets out the date of effect of the new determinations of percentages of care. The percentage of care applies to each day in a child support period on and from the “application day”. In accordance with subparagraph 54B(2)(c)(ii), the application day for the new determinations of percentages of care is the day after the revocation of the existing determinations. The legislation is prescriptive regarding the date of effect of the care change in circumstances where the care is notified more than 28 days after the change in care occurred (see paragraph 54F(3)(b) of the Assessment Act as detailed above in paragraph 24).

5. Mr Bachert’s existing determination has been revoked with effect from 26 November 2018; therefore the change of care applies to the child support assessment from 27 November 2018 for Mr Bachert.

6. Ms Habig’s existing determination has been revoked with effect from 6 September 2018; therefore the change of care applies to the child support assessment from 7 September 2018 for Ms Habig.

7. As the Tribunal concurs with the decision of the objections officer, the Tribunal affirms the decision under review.

DECISION:

The decision under review is affirmed.