Fasching and Fasching (Child support)

[2022] AATA 3086

Fasching and Fasching (Child support) [2022] AATA 3086 (10 June 2022)

DIVISION:  Social Services & Child Support Division

REVIEW NUMBER:  2022/SC023542

APPLICANT:  Mr Fasching

OTHER PARTIES:  Ms Fasching

Child Support Registrar

TRIBUNAL:  Member J Nalpantidis

DECISION DATE:  10 June 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. Mr Fasching and Ms Fasching are the separated parents of a child aged 18 years (the child). This review is about the percentages of care for Mr Fasching and Ms Fasching that apply in relation to the administrative assessment of child support for the child.

2. A child support assessment has been in place between Mr Fasching and Ms Fasching since 4 July 2018. Services Australia – Child Support (the Agency) had recorded Mr Fasching as having 100% care of the child’s care from 28 June 2021. Ms Fasching was assessed to pay child support to Mr Fasching for the support of the child. 

3. On 19 September 2021 Ms Fasching advised the Agency that there was a change in the child’s care stating that the child was in her 100% care from 5 September 2021.  It was noted that Ms Fasching later advised care of the child was 50% to each parent from 5 September 2021.  Mr Fasching disputed there was a change in the child’s care and the child continued to be in his 100% care.   

4. On 23 September 2021 the Agency decided to reject the change in care.

5. On 19 November 2021 Ms Fasching objected to the decision to refuse the change in care for the child as 100% to her from the 5 September 2021, stating in June 2021, the child made a decision to stay with Mr Fasching 100% of the time. Ms Fasching contends the child has been in her care for more than 50% from 5 September 2021.  However, she was willing to reflect care as 50%.

6. On 27 February 2022 the objections officer allowed Ms Fasching’s objection and decided to accept the change in care for the child as 51% to Mr Fasching and 49% to Ms Fasching from 5 September 2021. 

7. On 23 March 2022 Mr Fasching applied to this tribunal for a review of the objection decision, contending he has 100% care of the child.

8. The tribunal conducted a hearing on 10 June 2022. Mr Fasching and Ms Fasching participated at the hearing by telephone via Microsoft Teams audio and gave oral evidence on affirmation and made oral submissions at the hearing. The Registrar did not participate in the hearing. The tribunal had before it documents provided by the Registrar numbered 1 to 81 which had been copied to Mr Fasching and Ms Fasching.

ISSUES

1. The issues for the tribunal to determine are:

   a)What were the actual care arrangements in relation to the care of 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) Act1988 (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. 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. The percentage determined must be the percentage that corresponds with the actual care of the child that the Registrar is satisfied the responsible person has had, or is likely to have, during the relevant care period.

3. The pattern can be established either according to a “care arrangement” (such as court orders) or the actual care that is taking place. Depending on whether a pattern has been established or not, the tribunal can then proceed to determine the percentage of care applying the appropriate law (sections 49 and 50 of the Assessment Act).

4. 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 reflecting the actual care that a person has, or is likely to have, during the care period. In this case the tribunal is satisfied that a 12-month care period is appropriate. The tribunal notes that although the tribunal has decided that a 12-month care period is appropriate, this will continue to apply until a further change of care is notified (which may be before or after a 12-month period has elapsed).

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, there is no contention by the parties 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 actual care in this case.

7. 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 and up to the time of the original determination by the Registrar and evidence of the pattern of care the person is, or was, likely to have at that point in time.

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

8. In this case, care recorded for the child was 100% to Mr Fasching from the 28 June 2021.

9. The Agency material shows on 19 September 2021 Ms Fasching advised the Agency that there was a change in the child’s care stating that the child was in her 100% care from 5 September 2021.  Ms Fasching later advised care of the child was 50% to each parent from 5 September 2021.  Mr Fasching responded that there was no change in the child’s care, and the child continued to be in his 100% care.   

10. On 19 November 2021 Ms Fasching told the Agency the child was in her 100% care from 5 September 2021.  She stated that in June 2021, the child made a decision to stay with Mr Fasching 100% of the time due to getting a puppy. However, from 5 September 2021, the child has been in Ms Fasching’s care for more than 50%; Ms Fasching stated she was willing to reflect care as 50%. Ms Fasching advised that as there is no communication between the parents, and in relation to care arrangements, the child communicates directly with each parent when she wants to stay with either parent,

11. The objections officer decided to accept the change in care for the child as 51% to Mr Fasching and 49% to Ms Fasching from 5 September 2021.  The objections officer accepted evidence provided by Ms Fasching including dates for care of the child, statements from the child’s maternal grandmother and sister which supported a shared care arrangement.  It was noted although Mr Fasching disputed Ms Fasching’s claim of a shared care arrangement from 5 September 2021, he did not provide evidence to support his claim that Ms Fasching’s care of the child was not regular. 

Mr Fasching’s evidence and contentions

1. Mr Fasching submitted that for a change in care to be allowed, it must be demonstrated the change occurred for at least 51 days in a 12-month period, and this was not demonstrated in this case. 

2. He told the tribunal the child turned 18 years of age on 4 December 2021.  Ms Fasching made multiple applications for a change in care over a number of years, and all the previous applications were refused because Ms Fasching could not substantiate that a change in the pattern of care occurred.  Mr Fasching submitted in response to Ms Fasching’s repeated applications for a change in care, over an 18-month period he provided evidence to the Agency in support of his position that there was no change, and he is of the view that he should not have to provide any further evidence.  Mr Fasching submitted there was no change in the care of the child between June 2021 and September 2021 and the child remained in his 100% care. 

3. In response to the tribunal’s question, Mr Fasching acknowledged that the child went into Ms Fasching’s overnight care from time to time, but based on what he purported was the required change for 51 days over a 12-month period, there was no change in the care arrangements.  He submitted he had 100% care and there was no 50:50 shared care of the child with Ms Fasching from September 2021.  Mr Fasching submitted Ms Fasching did not demonstrate the requisite change over 51 days in a 12-month period and therefore the existing care arrangement should remain in place as far as he was concerned.  He submitted Ms Fasching’s application should not have been accepted by the Agency.

4. Mr Fasching acknowledged that the child may have been in Ms Fasching’s overnight care after September 2021 however this did not meet the requisite level to demonstrate a change in the pattern of care, which requires a period of some 51 nights over 12 months.  He submitted there were not enough days between September 2021 and November 2021 to constitute a change in the pattern of care.  The tribunal referred Mr Fasching to the dates Ms Fasching listed as the child being in her care, contained in the Agency material and he responded that he cannot refute or agree with those dates.  Nevertheless he acknowledged the child was in the overnight care of Ms Fasching on some occasions but he does not accept it was for 51 days over a 12-month period, or that it represented 50% care. 

Ms Fasching’s evidence

1. Ms Fasching referred the tribunal to the evidence she provided to the Agency including statements from other people, photographs, and dates she had care of the child.  She told the tribunal that although the child was in her 100% care, she could not provide evidence to support this and therefore accepted a 50:50 shared care arrangement as she was able to provide evidence that her care of the child was at least 50%.

2. Ms Fasching told the tribunal that the child was generally in her care for a week from Sunday to the following Sunday, followed by a week in Mr Fasching’s care, and this has generally continued since September 2021.  Ms Fasching gave evidence that the arrangements had some flexibility because the child could decide when to stay with each parent, and she did not have an issue with this.  She said there were occasions when the child stayed with her for two weeks on end.  Ms Fasching acknowledged that after purchasing a dog the child was in Mr Fasching’s 100% care, but this was not ongoing and by September 2021 the care of the child was shared on at least a 50:50 basis.  She provided the Agency with dates the child was in her care in September and October 2021; she has not kept diary notes after the child turned 18 years on 4 December 2021.

3. Ms Fasching told the tribunal that the child obtained a new job in October 2021 which was close to Ms Fasching’s home and therefore she stayed with her when she had work shifts so as she could easily make her way to work and back home. 

The tribunal’s consideration

1. The issue for the tribunal is the calculation of the pattern of care for the child.  

2. The parties disagree about the level of care they each provide to the child.  It was Mr Fasching’s evidence that the child was in his 100% care and this has not changed since June 2021, and Ms Fasching does not provide regular care of the child.  Nevertheless Mr Fasching acknowledged the child is in the overnight care of Ms Fasching on occasion.  He disputes this is regular care and while he disputes the 50% level, he did not provide direct evidence to the tribunal about what level the care may be.  The Agency material notes Mr Fasching stated the overnight care with Ms Fasching was sporadic and would be less than five times. Mr Fasching provided verbal responses to the Agency, but did not provide other supporting evidence.  Mr Fasching was clear in his evidence to the tribunal that he had previously provided evidence in response to multiple earlier care change claims made by Ms Fasching and he was of the view he should not have to provide further evidence in support of his position and did not intend to do so.

3. Ms Fasching initially reported she had 100% care of the child, although she then accepted having 50% care of the child from September 2021.  In support of her claim, Ms Fasching provided third party statements from the child’s maternal grandmother and sister, text messages, dates of care of the child and bank transactions.  This evidence supports that the care of the child is shared, and the child is not in the sole or 100% care of Mr Fasching

4. On the evidence before the tribunal, on balance, it accepts there is a shared care arrangement of the child between Ms Fasching and Mr Fasching.  There is no dispute that the child is in the overnight care of Ms Fasching on some occasions.  While Mr Fasching submitted Ms Fasching’s care of the child does not meet the requisite level of 51 days over a 12-month period, and the child was not in Ms Fasching’s regular care.  The tribunal accepts that after September there was a change in the pattern of acre for the child such that the care was shared between the parents.  The tribunal has carefully considered the overall evidence and on balance found the Agency correctly assessed the pattern of care of the child as 51% for Mr Fasching and 49% to Ms Fasching from 5 September 2021. 

5. Ms Fasching objected to the original decision (dated 23 September 2021) on 19 November 2021 which is more than 28 days from the date of the original decision.

6. Subsection 87AA(1) of the Registration and Collection Act provides that if the objection is more than 28 days after the date of the original decision, the date of effect is the date of the objection. Subsection 87AA(2) provides that the 28-day period referred to in subsection 87AA(1) may be a longer period as the Registrar determines to be appropriate, if there were special circumstances that may have prevented the person from objecting earlier. This means if special circumstances must be found to exist that prevented Ms Fasching from objecting earlier than 19 November 2021. If so, the care percentage change can be applied from a date earlier than 19 November 2021.

7. Ms Fasching submitted she has difficulty navigating child support and finds it very difficult to understand what she should be doing.  Ms Fasching gave evidence she attempted to lodge an objection earlier, however, was told by the Agency that because it was not on the objection form it would not be successful.  The tribunal accepts Ms Fasching was notified of the original decision and she was advised of the timeframe to lodge an objection.  Her reasons for not objecting within 28 days do not amount to special circumstances.  Accordingly, the date of effect in the change in care percentage is the date she lodged her objection, being, 19 November 2021, as determined by the Agency.

DECISION

The decision under review is affirmed.