Baumbarger and Baumbarger (Child support)

[2024] AATA 2760

Baumbarger and Baumbarger (Child support) [2024] AATA 2760 (11 June 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/BC027720

APPLICANT:  Mr Baumbarger

OTHER PARTIES:  Child Support Registrar

Ms Baumbarger

TRIBUNAL:Member I Sheck

DECISION DATE:  11 June 2024

DECISION:

The Tribunal sets aside the decision under review, and, in substitution, decides that:

•Mr Baumbarger’s care percentage is 86% for [Child 1], 79% for [Child 2] and 83% for [Child 3] with effect from 1 October 2022; and

•Ms Baumbarger’s care percentage is 14% for [Child 1], 21% for [Child 2] and 17% for [Child 3] with effect from 26 February 2023; and

•Mr Baumbarger’s care percentage is 100% for [Child 1] with effect from 1 May 2023; and

•Ms Baumbarger’s care percentage is 0% for [Child 1] with effect from 1 May 2023; and

•Mr Baumbarger’s care percentage is 50% for [Child 2] and 50% for [Child 3] with effect from 2 April 2024; and

•Ms Baumbarger’s care percentage is 50% for [Child 2] and 50% for [Child 3] with effect from 2 April 2024.

CATCHWORDS
CHILD SUPPORT – percentage of care – pre-existing care percentages revoked – decision under review set aside

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 theChild Support (Registration and Collection) Act 1988

REASONS FOR DECISION

BACKGROUND

1. Mr Baumbarger and Ms Baumbarger are the parents of [Child 1], born [2016], [Child 2], born [2017] and [Child 3], born [2019].  A case was registered with Services Australia – Child Support (Child Support) for the assessment of child support on 28 July 2020.  From 11 March 2022 the assessment of child support was based on care percentages for all 3 children of 0% to Ms Baumbarger and 100% to Mr Baumbarger. 

2. On 15 July 2022 Ms Baumbarger notified Child Support that the care percentages as recorded were not accurate and stated that she had care of the children at least one night per week.  On 16 July 2022 she notified that the care of all 3 children was 50% to each parent.  On 1 August 2022 Mr Baumbarger advised that there had been no change to the regular care arrangements.  An officer of Child Support decided not to change the assessment of care and the parties were notified of this decision by letter dated 10 September 2022.

3. On 10 January 2023 Ms Baumbarger advised Child Support that she had care of the 3 children for 50% of the time with effect from 16 December 2022.  On 26 February 2023 Ms Baumbarger advised Child Support that she had care of the 3 children 50% of the time with effect from 1 October 2022.  Mr Baumbarger denied that there had been a change to the care arrangements.  On 22 March 2023 an officer of Child Support decided not to change the assessment of care and the parties were notified of this decision in writing. 

4. On 3 April 2023 Ms Baumbarger advised Child Support that she had care of the 3 children 50% of the time with effect from 1 September 2022.  She reiterated this claim on 27 May 2023.  On 5 July 2023 Mr Baumbarger responded that Ms Baumbarger had care of the children for around 31 days in the last 365 days.  Mr Baumbarger also provided a list of nights that the children had been in the care of Ms Baumbarger from October 2021 to June 2023.  On 3 August 2023 a Child Support officer determined that Ms Baumbarger’s notification of a change in care was invalid.

5. On 29 September 2023 Ms Baumbarger advised Child Support that she had care of [Child 2] and [Child 3] for 50% of the time with effect from 1 October 2022 and provided supporting documents.  She reiterated this claim on 11 November 2023.  On 16 November 2023 Ms Baumbarger told Child Support that she had care of all 3 children 50% of the time.  She was orally advised by a Child Support officer on 27 November 2023 that her notification of a care change would not be accepted.  On 28 November 2023 she reiterated her claim.  She was again orally informed that her application to change the care assessment was invalid and on 27 December 2023 lodged a formal objection against the decisions not to alter the care percentages.

6. On 20 March 2024 an objections officer of Child Support reviewed the matter and determined that [Child 2] and [Child 3] were in the care of Ms Baumbarger for 50% of the time and the care of Mr Baumbarger for 50% of the time with effect from 1 October 2022.  The objections officer also determined that Ms Baumbarger had notified Child Support of the change in care on 28 November 2023. 

7. By application received on 2 April 2024, Mr Baumbarger asked this Tribunal to review the decision of the objections officer. On 11 June 2024, the Tribunal conducted a hearing at which Mr Baumbarger and Ms Baumbarger gave evidence by MS Teams audio.  The Tribunal had before it the relevant documents from the Child Support file and computer records (471 pages) which had also been issued to the parties.  Prior to the hearing Mr Baumbarger had provided additional documents (pages A1 to A130) which had also been exchanged prior to the hearing.

CONSIDERATION

1. The legislative provisions relevant to this decision are contained in the Child Support (Assessment) Act 1989 (the Act).  The Act sets out the statutory formula for the calculation of child support, which takes into account each parent’s adjusted taxable income and the level of care they provide for each child of the assessment.  The provisions require Child Support (and the Tribunal on review) to determine whether an existing care determination or determinations can be revoked and if so, what new care percentage decision can be made.

Has there been a change in care for [Child 1], [Child 2] and [Child 3]?

1. From 11 March 2022 Child Support had recorded that Mr Baumbarger had an attributed percentage of care for [Child 1], [Child 2] and [Child 3] of 100% and Ms Baumbarger had 0%.  Ms Baumbarger then made a number of notifications of changes in care as set out above.  Some of these notifications related to all 3 children while others related only to [Child 2] and [Child 3].  The first issue is whether the care that was actually taking place corresponded with the recorded percentages of care. 

2. Mr Baumbarger told the Tribunal that in the period October 2021 to March 2022 he and Ms Baumbarger were still living in the same house.  After they had separate residences he had been advised by the police that he should keep a diary of care for the children.  He has done that for the past 2 years.  He puts the details in the diary every night, or after one or 2 nights at the most.  His “spreadsheet” of care as provided to Child Support and the Tribunal is accurate.  Mr Baumbarger’s lists of care details as provided to Child Support in July 2023 and (updated) to the Tribunal in March 2023 indicates that each of the children were in the care of Ms Baumbarger for the following numbers of nights in each month:

[Child 1]	[Child 2]	[Child 3]
1 Oct 2021 to (not incl) 1 Oct 2022	31	32	32
October 2022	7	7	7
November 2022	5	4	5
December 2022	4	4	4
January 2023	6	7	7
February 2023	3	8	5
March 2023	4	6	7
April 2023	2	9	2
May 2023	1	12	4
June 2023	0	7	5
July 2023	0	8	8
August 2023	0	2	12
September 2023	0	11	11
October 2023	0	10	10
November 2023	0	11	11
December 2023	0	6	6
January 2024	0	6	6
February 2024	0	9	11
March 2024  (end date unclear)	0	5	5

1. Mr Baumbarger said that from mid-2023 Ms Baumbarger has become a lot more involved with the children’s care.  In answer to the Tribunal’s questions Mr Baumbarger said that he and Ms Baumbarger live about 15 minutes’ drive apart.  The intention had been that they would use the children’s before and after school care as the pick-up and drop-off point, but this had initially not worked out and the care arrangements were erratic.  The Tribunal drew Mr Baumbarger’s attention to a record of discussion with a Child Support officer dated 2 April 2024 which could be interpretated as Mr Baumbarger advising that the care arrangements were now 50% each.  Mr Baumbarger said that care is much closer to 50/50 now and for the past couple of months.  This only relates to [Child 2] and [Child 3].  [Child 1] still refuses to stay with Ms Baumbarger.

2. Ms Baumbarger told the Tribunal that she has resided in the same accommodation for the last 2 years; it is a 2-bedroom unit on the same property as her mother and stepfather’s house.  The arrangement for care has been week about since 2022.  She drops the children off at before school care on the Wednesday morning and Mr Baumbarger picks them up after school on Wednesday afternoon; the following week he will drop them off on the Wednesday morning and she picks them up in the afternoon.  The dates provided by Mr Baumbarger are not accurate.  She doesn’t keep a diary or any sort of care calendar; she didn’t think she would need to.

3. In terms of the actual care of the children in the period from March 2022 to date, Mr Baumbarger impressed the Tribunal as a reliable and organised witness.  The Tribunal accepts that the dates that each of the children were in Ms Baumbarger’s care, as set out in the table above, are accurate.  Section 50 of the Act provides that a person’s percentage of care for the purposes of the child support assessment is based on the “pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”.  The Tribunal considers it appropriate to break up the 2-year period above into several segments, which seem to reflect changes in the overall patterns of care.

[Child 1]		[Child 2]		[Child 3]
nights	%	nights	%	nights	%
1 Oct 2021 to 30 Sept 2022	31	8%	32	9%	32	9%
1 Oct 2022 to 30 April 2023	31	14%	45	21%	37	17%
1 May 2023 to 1 April 2024	1	0%	87	25%	89	26%
2 April 2024 on	0	0%	50%	50%

Should the existing care determinations be revoked?

1. Subsection 54F(1) of the Act sets out circumstances in which a determination of a percentage of care must be revoked.  Specifically, it states that an existing determination must be revoked if the Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the child or children and the responsible person's cost percentage for the child would change if the Registrar were to determine, another percentage to be the person’s percentage of care for the child.  Turning then to the cost percentages, these are set out at section 55C of the Act.  If a parent has a care percentage of less than 14%, their cost percentage is 0% and if their care percentage is between 14% and 35%, then their cost percentage is 24%. 

2. As at March 2022 the assessment of child support reflected that Mr Baumbarger had a care percentage for all 3 children of 100% and Ms Baumbarger, 0%.  From the table above, it can be seen that in the period ending 1 October 2022 Ms Baumbarger’s care percentage for the children was 8% for [Child 1] and 9% for [Child 2] and [Child 3].  Both of these care percentages give a cost percentage of 0%, therefore there is no basis on which to revoke the existing determinations under section 54F of the Act.  Section 54H of the Act provides that an existing care determination may be revoked if the is a change to the person’s care percentage but as this does not affect the rate of child support payable under the assessment the Tribunal sees no utility in doing so.

3. From 1 October 2022 it can be seen that Ms Baumbarger’s care percentage for all of the children did increase, and entered the 14% to 35% bandwidth that would result in a cost percentage of 24% for Ms Baumbarger and 76% for Mr Baumbarger.  The existing care determinations should therefore be revoked under section 54F of the Act from 2 October 2022 and replaced with new determinations.  Considering first the care percentage for [Child 1], it is appropriate that the new care percentages are 14% for Ms Baumbarger and 86% for Mr Baumbarger from that date.  For [Child 2] and [Child 3], the Tribunal considers it appropriate to replace the existing determinations with new determinations for [Child 2] of 21% to Ms Baumbarger and 79% to Mr Baumbarger and for [Child 3], 17% for Ms Baumbarger and 83% for Mr Baumbarger.  These determinations both give a cost percentage for Ms Baumbarger of 24%.  This level of care took effect from 1 October 2022.  Although there was a small increase in Ms Baumbarger’s level of care with effect from 1 May 2023, this would not result in any change to the parties’ cost percentages, therefore the Tribunal considers it appropriate to retain the determinations for the whole period 1 October 2022 to 1 April 2024.  Finally, Mr Baumbarger advised that since 2 April 2024 the care of [Child 2] and [Child 3] has been roughly 50/50, therefore a new care determination must be made under section 54F reflecting that this is the case from that date.

4. [Child 1] has not been to stay with his mother since May 2023, therefore it is appropriate that there is another determination made to reflect that Ms Baumbarger’s care percentage (as well as her cost percentage) is 0% from that date.

What are the dates of effect of the changes to the assessment?

1. Although the Tribunal has determined that the care assessments in place at 1 October 2022 must be revoked as they did not reflect the pattern of care that was taking place, the date of effect of such revocations are in accordance with subsection 54F(3), as follows:

   (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.

2. The objections officer determined that Ms Baumbarger had first notified on 28 November 2023 that the care of the children had changed with effect from 1 October 2022.  The Tribunal does not agree with this conclusion and finds that the relevant notification occurred on 26 February 2023.  Mr Baumbarger and Ms Baumbarger were then informed by letters dated 22 March 2023 that there would be no change to the care assessment.  Throughout the course of 2023 Ms Baumbarger had numerous contacts with Child Support during which she expressed her dissatisfaction with the refusal to change the child support assessment.  The Tribunal concludes that these contacts constituted objections to the decision of 22 March 2023 and the first of these was made on 3 April 2023.

3. Returning to the effect of subsection 54F(3), Child Support was notified more than 28 days after 1 October 2022 that the care of the children had changed from that day.  This means that the existing determination of care for Ms Baumbarger, which was a care percentage of 0% for all children, is revoked from 25 February 2023 and the new care percentages of 14% for [Child 1], 21% for [Child 2] and 17% for [Child 3] take effect from 26 February 2023, the day of notification.  As Mr Baumbarger’s care percentages have reduced, the existing determination that his care percentage was 100% for all children is revoked the day before the care change day and replaced by new care percentages with effect from 1 October 2022 of 86% for [Child 1], 79% for [Child 2] and 83% for [Child 3].

4. As there were further contacts with the parties throughout 2023 and on 2 April 2024 relating to the care arrangements of the children, the Tribunal concludes that the further changes to the care determinations can take effect from the dates of the care changes as set out in the table above, in accordance with paragraph 54H(3)(a).

DECISION

The Tribunal sets aside the decision under review, and, in substitution, decides that:

•Mr Baumbarger’s care percentage is 86% for [Child 1], 79% for [Child 2] and 83% for [Child 3] with effect from 1 October 2022; and

•Ms Baumbarger’s care percentage is 14% for [Child 1], 21% for [Child 2] and 17% for [Child 3] with effect from 26 February 2023; and

•Mr Baumbarger’s care percentage is 100% for [Child 1] with effect from 1 May 2023; and

•Ms Baumbarger’s care percentage is 0% for [Child 1] with effect from 1 May 2023; and

•Mr Baumbarger’s care percentage is 50% for [Child 2] and 50% for [Child 3] with effect from 2 April 2024; and

•Ms Baumbarger’s care percentage is 50% for [Child 2] and 50% for [Child 3] with effect from 2 April 2024.