Horlacher and Fernsler (Child support)

[2020] AATA 1410

Horlacher and Fernsler (Child support) [2020] AATA 1410 (15 April 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/PC018448

APPLICANT:  Mr Horlacher

OTHER PARTIES:  Child Support Registrar

Ms Fernsler

TRIBUNAL:Member Y Webb

DECISION DATE:  15 April 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 – 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 Horlacher and Ms Fernsler in relation to their two children aged 16 and 11 (“the children”).

2. Since 1 January 2018 the percentages of care for both children had been recorded by the Department of Human Services (“Child Support Agency”) as 89% care to Ms Fernsler and 11% care to Mr Horlacher.

3. On 22 May 2019 Mr Horlacher contacted the Child Support Agency and advised that he had had care of the children for four nights in each four-week roster period since 7 January 2019.  He reported that he therefore had had 52 nights per year which equals 14% care with Ms Fernsler having 313 nights per year which equals 86% care.

4. Ms Fernsler disagreed stating that Mr Horlacher had had care of the children for a few nights in some months.

5. On 1 August 2019 the Child Support Agency decided that the change in care should be refused due to insufficient evidence of a care change.

6. On 28 August 2019 Mr Horlacher objected to that decision.

7. On 18 February 2020 an objections officer disallowed Mr Horlacher’s objection on the basis that Mr Horlacher does not always have an average of four nights a month of care.

8. On 19 February 2020 Mr Horlacher requested review by the Administrative Appeals Tribunal (“the Tribunal”).

9. Mr Horlacher and Ms Fernsler attended the hearing by way of a telephone conference on 14 April 2020.  Mr Horlacher gave evidence on affirmation and Ms Fernsler gave sworn evidence.

10. Following the hearing the Tribunal requested from the Child Support Agency a copy of the court orders [in] December 2012 in relation to the care of the children and these were provided to the parties.

11. On 15 April 2020 the Tribunal reconvened and made its decision.

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.

4. In circumstances where there are no court orders or written parenting plans or where the court orders are not being followed the care is established by considering the actual pattern of care that is taking place.  Ms Fernsler asserted that orders made by the Federal Magistrates Court of Australia [in] December 2012 had not been followed for some time.  She stated that the “ambiguous” court orders provided that Mr Horlacher could exercise care two nights per week for both children but she stated that Mr Horlacher has not exercised that level of care for a very long time.  Mr Horlacher asserted that the court orders had been followed except in June when Ms Fernsler withheld care of the children.

5. The Tribunal considered the court orders.  In particular, it considered the notation which outlined the intent of the orders which states:

   The intent of the orders is that where the father’s roster allows he would have within 4 weeks 4 periods of 3 days and 2 nights with the children consisting of no more than 2 weekends. Thus the father might have 1 weekend and 3 mid-week periods of time, or no weekends and 4 mid-week periods of time, within the parameters of his 4 week roster.  Unless the parents agreed, however, the father could not have more than 2 weekends within a 4 week roster.

6. In addition, the court orders provided that Mr Horlacher would have care for half of the school holidays and on other special occasions as outlined in the orders.

7. The Tribunal considered Mr Horlacher’s care calendar[1] and the nights on which he asserted he had had care of the children.  The Tribunal finds that the care which Mr Horlacher stated was occurring from 7 January 2019 was not in the pattern of four periods of two nights (eight nights) within a four-week rostered period.  To be consistent with that pattern the care would equate to 104 nights per year or 28%.  Therefore the Tribunal finds that the care was not occurring in accordance with the court orders of [December] 2012 leading up to Mr Horlacher’s notification of a care change from 7 January 2019.  Hence the Tribunal will consider the actual pattern of care which was occurring to determine whether there was a change of care.

   [1] C1 -  pages 28-29

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

9. In this case, Mr Horlacher and Ms Fernsler 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.

10. 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 89% to Ms Fernsler and 11% to Mr Horlacher.

11. For the purpose of determining whether a person “has had, or is likely to have, a pattern of care for the child”[2] the Tribunal takes into account evidence of the pattern of care the person has had, from the date of the asserted change in care (7 January 2019) and up to the time of the original determination by the Registrar (1 August 2019) and evidence of the pattern of care the person is, or was, likely to have going forward at that point in time.

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

12. Mr Horlacher contended that his care had increased to 14% from 7 January 2019.  He relied primarily on a calendar of care which he provided to the Child Support Agency on 20 June 2019 and covering the period 7 January 2019 to 16 August 2019.  He stated that the care calendar included the actual care he had had and the prospective care which he was expecting to have based on his work rosters.[3]  Mr Horlacher asserted that he had care in the relevant period as follows:

    [3] Work rosters as finalised and detailed in C1 pages 29 to 33.

Dates of overnight care	Total
7 Jan 2019 – 8 Jan 2019	1
14 Jan 2019 – 15 Jan 2019	1
21 Jan 2019 – 22 Jan 2019	1
4 Feb -2019 – 5 Feb 2019	1
10 Feb 2019 – 12 Feb 2019	2
25 Feb 2019 – 26 Feb 2019	1
4 Mar 2019 – 5 Mar 2019	1
25 Mar 2019 – 28 Mar 2019	3
9 Apr 2019 -11 Apr 2019	2
23 Apr 2019 – 25 Apr 2019	2
29 Apr 2019 – 30 Apr 2019	1
2 May 2019 – 3 May 2019	1
6 May 2019 – 7 May 2019	1
13 May 2019 – 14 May 2019	1
30 May 2019 – 31 May 2019	1
3 Jun 2019 – 4 Jun 2019	1
14 Jun 2019 – 15 Jun 2019	1
20 Jun 2019 -21 Jun 2019	1
28 Jun 2019 -29 Jun 2019	1
3 Jul 2019 – 4 Jul 2019	1
7 Jul 2019 – 8 Jul 2019	1
19 Jul 2019 – 22 Jul 2019	3
TOTAL	29

1. At the hearing Mr Horlacher confirmed that the nights detailed above were the nights that he actually had care of the children except for the four nights in June 2019 when he advised that the care was withheld.  Mr Horlacher stated that he was available to have the care of the children on all of the dates listed above.

2. Ms Fernsler disagreed that Mr Horlacher’s care had changed and specifically she disputed that it had increased to 14% from 7 January 2019.  Ms Fernsler relied on her care calendar (in the relevant period from 7 January 2019 to 1 August 2019) and stated that Mr Horlacher had care as follows:[4]

   [4] C1 – page 71

Month	Nights of care
January 2019	3
February 2019	3
March 2019	4
April 2019	4
May 2019	3
June 2019	0
July 2019	4
TOTAL	21

1. Ms Fernsler told the Tribunal that she was very careful in recording the care of the children and she was confident that her care calendar was accurate.  She stated that she always marks the dates when the children will be in their father’s care and puts the dates on the fridge so that the children know where they are staying.  Ms Fernsler stated that there were occasions when Mr Horlacher has had to cancel his planned care because he is called in to work.  Ms Fernsler confirmed that Mr Horlacher did not have any care of the children in June 2019 and that was on legal advice because Mr Horlacher did not provide an unedited work roster.

2. The Tribunal carefully considered all of the available evidence in the relevant period of 206 nights between 7 January 2019 and 1 August 2019.

3. In that period Mr Horlacher stated that he had 29 nights of care; Ms Fernsler stated that Mr Horlacher had 21 nights of care.  However, Mr Horlacher’s emails of 27 June 2019 and 2 July 2019 confirm that he would not be able to have care of the children on the night of 28 June 2019 (that being a date which he had previously nominated) nor on the night of 19 July 2019 which he had also previously nominated. The Tribunal acknowledges that due to Mr Horlacher’s work requirements he is not always able to have overnight care as planned.  These amendments reduced Mr Horlacher’s care to 27 nights in the relevant period.

4. In addition, Ms Fernsler disputed Mr Horlacher’s asserted nights of care in February 2019 (where she claimed Mr Horlacher had care for three nights, not four); in April 2019 (where she claimed Mr Horlacher had care for four nights, not five); and in May 2019 (where she claimed Mr Horlacher had care for three nights, not four).  If that is the case, Mr Horlacher’s care in the relevant period would be reduced to 24 nights.  Mr Horlacher contended that he should be entitled to count the remaining three nights in June because he was available to care for the children but was prevented from doing so by Ms Fernsler.  If Mr Horlacher’s anticipated three nights in June were retained and if Ms Fernsler’s claim that Mr Horlacher had three nights of care in February; four nights of care in April and three nights of care in May was accurate the number of nights that Mr Horlacher had care in the relevant period would be 24 which is 11% (24/206 = 11%). 

5. Clearly the evidence is contradictory between the parents regarding some of the nights of care.  The Tribunal is satisfied that Mr Horlacher considered his care should be reflected in the nights that he nominated and not necessarily his nights of actual care.  While mostly the nominated nights and the actual care coincided there were occasions when this was not the case (such as all of the nights in June as well as the night of 19 July).  The Tribunal accepts Ms Fernsler’s evidence that she marks the nights of Mr Horlacher’s care on a calendar and puts that on the fridge for the benefit of the children and it considers it likely that she undertakes that task carefully as she indicated. 

6. Hence, the Tribunal is persuaded on balance that it was likely that Mr Horlacher’s actual care in February 2019 was three nights; in April four nights and in May three nights.  This resulted in Mr Horlacher’s care being 24 nights in the relevant 206 night period which is 11%. This means that even if Mr Horlacher had had care overnight on 3 June, 14 June and 20 June (as he nominated) his percentage of care would have been 11%.  His percentage of care would be below 11% if it was calculated that Mr Horlacher had nil overnights of care in June 2019.

7. In all of the circumstances the Tribunal is satisfied that in the relevant period of 206 nights between 7 January 2019 and 1 August 2019 Mr Horlacher had care of the children for a maximum of 24 nights which is 11.6% which must be rounded down (for the parent with the lower percentage) to 11% in accordance with section 54D of the Assessment Act.

8. Hence, the Tribunal finds that there has not been a change in the pattern of care of the children from 7 January 2019 and agrees with the objections officer that the care of the children remained at 89% to Ms Fernsler and 11% to Mr Horlacher.

DECISION

The decision under review is affirmed.