Kolberg and Kolberg (Child support)

[2021] AATA 2433

Kolberg and Kolberg (Child support) [2021] AATA 2433 (21 June 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC021293

APPLICANT:  Mr Kolberg

OTHER PARTIES:  Ms Kolberg

Child Support Registrar

TRIBUNAL:Member P Sperling

DECISION DATE:  21 June 2021

DECISION:

The tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – 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 Kolberg and Ms Kolberg are the parents of [Children 1-4] (the children). This application is about the percentages of care for the children used in the child support assessment from 12 December 2020.

2. The Department of Human Services – Child Support (the Department), now known as Services Australia – Child support (the Department), recorded that from 6 July 2020 Ms Kolberg had a percentage of care of the children of 92% and Mr Kolberg had a percentage of care of 8%.

3. On 15 December 2020 Mr Kolberg contacted the Department and advised that the care of the children had changed such that from 12 December 2020 he was having care of the children for 60 nights per year, or 16%, and that Ms Kolberg was having care for the remaining 305 nights or 84%. On 2 February 2021 the Department made a new determination that the percentage of care of the children was 16% for Mr Kolberg and 84% to Ms Kolberg from 12 December 2020.

4. On 16 February 2021 Ms Kolberg lodged an objection to this change of care decision on the grounds that, based on previous trends, Mr Kolberg was unlikely to have more than 49 nights of care per year, or 13% care of the children, and that she would have the remaining 87% care.

5. On 8 April 2021, an objections officer considered the matter and allowed the objection, determining that a regular change in the pattern of care had not yet been established and therefore the objections officer did not change the care recorded for the children from 12 December 2020.

6. On 22 April 2021 Mr Kolberg lodged an application for review by this tribunal. The matter was heard by conference telephone on 21 June 2021. Both Mr Kolberg and Ms Kolberg participated in the hearing and gave sworn evidence. The Child Support Registrar did not attend the hearing. In making its decision the tribunal took into consideration the documents provided by the Department, which were also sent to Mr Kolberg and Ms Kolberg (225 pages).

ISSUES

1. The relevant law in this case is in the Child Support (Assessment) Act 1989 (the Act). A parent or non-parent carer’s percentage of care for a child is determined based on the care he or she is likely to provide for the child, or in this case the children, in a care period. The percentage of care is used in a child support assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they are providing for that child.

2. The issues for the tribunal to determine in this case are:

• Whether there should be a change to the percentages of care in respect of the children used in the child support assessment from 12 December 2020; and if so

• What percentages of care should be used from this date and what is the date of effect of any change?

CONSIDERATION

1. A new determination of a percentage of care for a child must be made where an existing determination has been revoked and the Registrar, or the tribunal standing in the shoes of the Registrar, is satisfied that each person has had, or is likely to have, no pattern of care, or that the person has had, or is likely to have, a pattern of care (sections 49 and 50 of the Act).

10.  The tribunal notes that in September 2020 Mr Kolberg had previously notified the Department of a change in the care of the children on the basis that care would be changing from December 2020. However, the Department’s documents (page 61) show that the Department did not accept his earlier notification because care had not yet changed at the time the notification was made.

11.  As set out above, Mr Kolberg notified the Department again on 15 December 2020 of a change in care from 12 December 2020. During the hearing he advised that he notified that care had changed from this date because the COVID-19 restrictions had been relaxed and he had commenced a block of four weeks of care during the December 2020/January 2021 school holidays from this date. He noted that this care was in accordance with court orders which had been delivered on 6 July 2020.

12.  The parties agree that new court orders of 6 July 2020 set out future care arrangements, however, they disagree about the likely care that Mr Kolberg would have from 12 December 2020 in accordance with these court orders. At the hearing the tribunal discussed the care, and the details of the 6 July 2020 court orders, with the parties. There was agreement that the court orders of 6 July 2020 provide the opportunity for Mr Kolberg to have more care of the children than he had under the previous interim orders. There was not agreement about the actual likely care that Mr Kolberg would have going forward.

13.  Section 54F of the Act sets out the circumstances in which a determination of a percentage of care must be revoked. It provides as follows:

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

(1) If:

(a)  a determination of a responsible person's percentage of care (the existing percentage of care) for a child has been made under section 49 or 50; and

(b)  if section 51 or 52 applied in relation to the responsible person--the interim period for the determination has ended; and

(c)  the Registrar or the Family Assistance 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

(d)  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

(e)  section 54G does not apply; …

14.  In this case, the tribunal found for the purpose of paragraph 54F(1)(a) that there were existing percentage of care determinations for Mr Kolberg and Ms Kolberg made under sections 49 or 50 in relation to the children. Sections 51 or 52 did not apply to the existing determinations in this case.

15.  In order for a percentage of care determination to be revoked under section 54F, the Registrar must be satisfied 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 that the responsible person’s cost percentage for the child would change if the Registrar were to determine, under sections 49 or 50, another percentage to be the person’s percentage of care for the child.

16.  Section 50 applies, relevantly, if the parent “has had, or is likely to have, a 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 term “pattern of care” is not defined in the legislation. The tribunal had regard to the policy as set out in the Department’s Child Support Guide (the Guide), at Part 2.2.2 Care Determinations and Changes in Care.

17.  Sections 49 and 50 both reflect the idea that the Department makes point-in-time care decisions on the basis of what has happened up until the change in care and what is likely to happen thereafter. Of course, what is likely to happen may not eventuate and when such a divergence occurs, a parent can notify the Department and a new care determination can be made. However, the legislative test at first instance and on review remains the same.

18.  Since 6 July 2020 Ms Kolberg was assessed as having a percentage of care of the children of 92% and Mr Kolberg was assessed as having a percentage of care of the children of 8%.

19.  The tribunal finds that Mr Kolberg notified the Department on 15 December 2020 of a change in the care of the children from 12 December 2020. This means that he notified that the actual care of the children did not correspond with the percentage of care under the existing determinations from this date.

20.  For the purpose of paragraph 54F(1)(c), the tribunal considered the actual care of the children during the care period, having regard, also, to whether there had been a change in the pattern of care. Actual care is generally worked out based on the number of nights the child was or is likely to be in the care of the person (subsection 54A(1)). The tribunal was satisfied that this is the appropriate basis for working out the care in this case.

21.  Actual care is assessed over a care period to determine the care percentages for each parent or non-parent carer. As “care period” is not defined in the legislation the tribunal had regard to the policy as set out in the Guide at Part 2.2.2 Care Determinations and Changes in Care. The Guide states that a care period is generally a 12-month period from the day on which the actual care of a child changed. However, there are some circumstances where determining the care over a shorter or longer care period may be more appropriate and the specific circumstances of each case are taken into account to determine the appropriate care period.

22.  In this case the tribunal concluded that a care period of 12 months is appropriate, taking into account the overall pattern of care provided for in the court orders. The tribunal therefore decided to consider the care for the care period from 12 December 2020 to 11 December 2021.

23.  In considering this matter, the tribunal notes that Mr Kolberg and Ms Kolberg live in different states of Australia and that the children reside with Ms Kolberg during the school terms and travel interstate during school holidays to be with Mr Kolberg. In addition, and relevant to this matter, Mr Kolberg is in [Employer].

24.   The tribunal also had regard to the court orders of 6 July 2020, as set out in the hearing papers (pages 37 to 45), which provide that care of the children is to be as follows:

2. That the children live with their mother.

3. That, unless otherwise agreed in writing between the parents, the parents do all things necessary to facilitate the children spending time with their father as follows:

(a) During school terms:

(i) From after school on Friday until before school the following Tuesday on one weekend in each school semester, with the father to advise the mother which weekend he intends to visit at least four weeks prior;

(b) During the school holiday periods at the end of terms one, two and three each year:

(i) For a period of seven nights, concluding on the final Friday of the holiday period; or

(ii) If the father is not required to work for five or more days, for a period of ten nights, concluding on the final Friday of the holiday period;

(c) During the Christmas school holiday period in 2020 and each alternate year thereafter:

(i) If the father is not required to work for 21 or more days, for a period of four weeks, commencing on the first Saturday of the holiday period;

(ii) If the father is not required to work for 14 or more days, for a period of three weeks, commencing on the first Saturday of the holiday period; and otherwise

(iii) For a period of two weeks, commencing on the first Saturday of the holiday period;

(d) During the Christmas school holiday period in 2021 and each alternate year thereafter:

(i) If the father is not required to work for 21 or more days, for a period of four weeks, concluding on the last Saturday of the holiday period;

(ii) If the father is not required to work for 14 or more days, for a period of three weeks, concluding on the last Saturday of the holiday period; and otherwise

(iii) For a period of two weeks concluding on the last Saturday of the holiday period.

25.  In his application to the tribunal, Mr Kolberg made a number of points regarding his care of the children from 12 December 2020 which can be summarised as follows:

• the court orders of 6 July 2020 allow him an extra 23 nights of care per year compared to the previous interim orders, with the minimum allowable nights of care now 35 nights and the maximum allowable nights of care now 66 nights;
• in line with this, he anticipates having the children in his care for about 60 nights per year and has rented a three bedroom house on the basis that he will have this amount of care of the children over the course of the year;
• as of 12 December 2020 he intended to have a maximum of 10 nights care in the April, June and September 2021 school holidays in addition to the 30 nights of care that he provided in the December 2020/January 2021 school holidays, giving a total of at least 60 nights of care over the course of the year;
• the current court order allows him to have seven nights of care during the school holidays if he works five days or more and this increases to 10 nights of care if he works four or less days;
• in addition, during the December/January school holidays the court orders allow him to have four weeks of care if he is not working for 14 days;
• given the provisions in the court orders, he expected to easily exceed the 52 nights required for him to be assessed as having regular care, which is why he resubmitted his change in care notification to the Department;
• the court orders allow him to have a maximum of 66 nights per year, which is an increase from around 35 to 40 nights per year under the previous orders;
• as a result of this, the likelihood that he will have more than 52 nights of care is weighted in his favour and he anticipates having a total of between 55 and 61 nights of care for the 12 months commencing 12 December 2020;
• in addition, the timing of his transfer to a [position] in Canberra in July 2021 has recently been confirmed;
• his Canberra posting from mid-2021 will allow more flexibility with his leave as his annual and personal leave entitlements, long service leave and other shifts can be swapped with colleagues to ensure that he satisfies the non-working day criteria in the court orders;
• as a result he is confident that he will be able to have the maximum allowable time under the court orders for the remainder of 2021 and into the future;
• in terms of any historical analysis of his care over the previous 12 months, he maintains that his access to the children was reduced in 2020 because of COVID-19 travel restrictions which impacted on the children’s travel and resulted in him being [re-assigned] to Melbourne to help with [activities];
• in addition, he maintains that Ms Kolberg has previously imposed restrictions on his access to the children, including in April 2021, and these restrictions on his access are what have reduced his overall historical pattern of care rather than anything related to his own availability;
• given that he had 30 days of care in December 2020/January 2021, he is confident that he will qualify for regular care, even if he only has the minimum nights of care in each subsequent school term holiday plus one visit during term time;
• further, he does not anticipate any more cancelled visits due to COVID-19 or border closures.

26.  The tribunal notes that Mr Kolberg has provided a number of calendars to the Department over time, setting out the dates he provided care and anticipated providing care in 2020 and 2021. The tribunal notes that some of these calendars were provided in 2021, well after Mr Kolberg notified his change in care, and they included details of actual care provided after the change in care had been notified. As explained during the hearing, and consistent with the point-in-time approach of considering what had happened until the date of the notification and what was likely to happen thereafter, the tribunal only had regard to the calendar provided by Mr Kolberg to the Department on 15 December 2020 which was the same day that he notified a change in care. This calendar shows that Mr Kolberg anticipated having care of the children for 60 nights between December 2020 to December 2021, comprising 30 nights over the 2020/2021 school holidays and a further 10 nights in each of the three school term holidays in 2021. His calendar also notes that an additional eight nights of care may occur during school semesters.

27.  During the review of this matter, Mr Kolberg also provided copies of return airline tickets for the children’s travel on 29 June 2020 and 10 July 2020 as evidence that he had care of the children for 10 nights during this period. He also provided copies of return airline tickets for the children on 12 December 2020 and 11 January 2021 as evidence that he had care of the children for 30 nights during this period. During the hearing Ms Kolberg did not dispute that Mr Kolberg had care during these periods.

28.  In her discussions with the Department and during the hearing, Ms Kolberg made a number of points regarding Mr Kolberg’s care of the children from 12 December 2020 which can be summarised as follows:

• Ms Kolberg accepts that Mr Kolberg intends to have the maximum amount of care allowed under the court orders but considers that this will not eventuate because his availability will continue to be limited by his work commitments;

• Ms Kolberg acknowledges that at the time Mr Kolberg reported a change in care, Mr Kolberg was expected to have care from 12 December 2020 to 11 January 2021, although she noted that the court orders only provided for 28 nights of care during this period and she said that Mr Kolberg had arranged to have an additional two nights of care without her initial agreement;

• Mr Kolberg has never had at least 52 nights (14% care) over a 12 month period since they separated three and a half years ago;

• Mr Kolberg has not had any regular pattern of care since they separated, and his care depends on his availability during school holidays which in turn depends on his work commitments;

• The court orders of July 2020 were written flexibly to take into account Mr Kolberg’s work commitments, however, Mr Kolberg only provided care for the children in two of the school term holidays in 2020;

• Although he was supposed to have care of the children in September 2020, this did not eventuate which Ms Kolberg believes was because of [Employer]’s general operational requirements at the time and not specifically because of COVID-19;

• The court orders say Mr Kolberg can only have 10 nights of care in the school holidays if he is not working above a designated threshold but his past care record shows that he is unlikely to meet the work requirements to allow him to have the maximum allowable care in future periods;

• As at 15 December 2020 when Mr Kolberg notified that care had changed, she did not expect that he would have the maximum amount of care allowed in the court orders given that he had had no care of the children in the September/October 2020 school holidays and no regular contact with the children;

• In addition she maintained that previous experience had shown that Mr Kolberg’s care was and continues to be highly dependent on [work] commitments, which can change at short notice;

• Mr Kolberg never had the maximum amount of care available to him under the interim orders.

29.  In summary Ms Kolberg said that Mr Kolberg always indicated that he intended to have the maximum amount of care allowed and she doesn’t question his intent in this regard. However, she said that [Employer] makes regular unforeseen changes to the work schedules which means that Mr Kolberg’s availability to provide care within the constraints of the court orders will continue to be limited.

30.  The tribunal notes that, at the time the Department made the original decision in February 2021, Mr Kolberg had advised that he expected to have care of the children for 10 nights in each school term holiday in 2021 and that the Department had included an annotation in his record that this was “subject to his [assignment]”. During the hearing Mr Kolberg told the tribunal that his leave was dependent on his [work]’s schedule and program and that he was usually advised of this program six to 12 months in advance. On further questioning, he advised that historically the [work]’s program has changed once or twice during every two year [period] and that these changes were often made at short notice if the [work team] is ready to [assign]. He also told the tribunal that [Employer] encourages him to apply for leave in advance, for example two months in advance, and his leave is generally approved shortly after he applies but is approved subject to subsequent changes in the [work]’s program.

31.  During the hearing Mr Kolberg acknowledged that his [work]’s [assignment] changed in September 2020 at short notice due to COVID-19 requirements and that there was a late change in the timing of the [work]’s [assignment] in April 2021 for operational reasons. The tribunal notes that these are two examples within a seven month period of unforeseen changes in Mr Kolberg’s availability as a result of changes in his work commitments. While the tribunal has no doubt that there were clearly good reasons for each of these changes, the net result was that Mr Kolberg was not able to provide care in accordance with the maximum amount of time set out in the court orders on either occasion.

32.  The tribunal notes that Mr Kolberg maintained that his posting to a [position] in Canberra from July 2021 would increase his availability and flexibility. During the hearing Ms Kolberg advised that she was unaware of Mr Kolberg’s Canberra posting in December 2020, and she only found out about it from one of the children after the April 2021 school holidays. The tribunal is satisfied that Mr Kolberg’s posting to Canberra was not known by Ms Kolberg when Mr Kolberg notified that the care had changed in December 2020. Further, Mr Kolberg advised the tribunal that the timing of this posting had only been confirmed recently. Accordingly, the tribunal does not accept that Mr Kolberg’s posting to Canberra was a known factor which was taken into account in assessing his likely future care as at December 2020 when he notified that care had changed.

33.  The tribunal also notes that as at December 2020, there was disagreement between the parents about the likely care provided by Mr Kolberg from December 2020 to the beginning of December 2021 as follows:

• Mr Kolberg maintained that he would have 60 nights of care, or 16% care, during the care period on the basis that he had 30 nights of care in the December 2020/January 2021 school holidays and he intended to have 10 nights of care in each of the three school term holidays in 2021; and
• Ms Kolberg acknowledged that Mr Kolberg had 30 nights of care in the December 2020/January 2021 school holidays, however, she maintained that, at the time he notified of a change in care, it was her expectation that he would have a maximum of seven nights of care in each of the three school term holidays in 2021. On this basis, she considered that Mr Kolberg would only have a total of 51 nights of care, or 13% care, during the care period.

34.  While, the tribunal is satisfied that the care arrangements set out in the court orders, represented the care that was likely to be provided for the children at the time the care arrangements changed, the tribunal notes that these court orders provide flexibility in terms of the amount of care that Mr Kolberg would have during school holidays. Further, the tribunal notes that both parents disagreed on the actual care that Mr Kolberg was likely to have in 2021 having regard to his previous pattern of care and his work circumstances.

35.  Ms Kolberg told the tribunal that, as at December 2020, she and Mr Kolberg had not had discussions about care arrangements for the 2021 school holidays and that they didn’t first start to discuss (via email) the 2021 school holiday arrangements until mid-February 2021 and they were still unresolved at that time which led to a letter from Mr Kolberg’s lawyer in April 2021. The tribunal accepts that, as at December 2020, Ms Kolberg had not confirmed or agreed to any specific care arrangements for Mr Kolberg in respect of the school term holidays in 2021.

36.  Having regard to all of the available evidence, the tribunal is satisfied that, as at December 2020 when Mr Kolberg notified that the care had changed, it was difficult to determine what future care would actually apply, given his work commitments. The tribunal accepts that, as at 15 December 2020 when Mr Kolberg notified the care change, there was agreement that he would have care of the children for 30 nights from 12 December 2020 to 10 January 2021 inclusive.

37.  However, the tribunal is satisfied on the basis of the evidence provided by the parents that there was no common expectation of future care in the 2021 school year at the time Mr Kolberg reported the change in care. Further, given the lack of a clear historical pattern of care and the history of uncertainty regarding Mr Kolberg’s work commitments and availability, the tribunal is not satisfied that, as at 15 December 2020 when Mr Kolberg notified of a change in care, that a regular pattern of care had been established which can be used to determine care for any period after this. As such, the tribunal finds that there is no basis to change the care percentages for the parents from 12 December 2020 in response to Mr Kolberg’s notification.

38.  The existing percentage of care determinations made under sections 49 or 50 of the Act in relation to the child, reflect that Mr Kolberg has a percentage of care of 8% and Ms Kolberg has a percentage of care of 92% from 6 July 2020. As the tribunal has determined that the care percentages did not change from 12 December 2020, the existing determinations of percentages of care cannot be revoked. The tribunal notes that its decision is consistent with the decision of the objections officer and therefore affirms the decision under review.

39.  In reaching its conclusion, the tribunal notes that Mr Kolberg has made reference to more recent confirmation of the timing of his next [posting] in Canberra.  The tribunal notes that this change in Mr Kolberg’s work circumstances may provide more certainty about his availability to care for the children going forward. As such, it is open to Mr Kolberg to notify a new change in care arrangements from the date on which any new pattern of care was or is established.

DECISION

The tribunal affirms the decision under review.