Nauman and Berthold (Child support)

[2020] AATA 5567

Nauman and Berthold (Child support) [2020] AATA 5567 (9 November 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/PC019618 & 2020/PC019635

APPLICANT:  Mr Nauman

OTHER PARTIES:  Child Support Registrar

Ms Berthold

TRIBUNAL:Member P Sperling

DECISION DATE:  9 November 2020

DECISION:

The tribunal affirms the decisions under review.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no agreement to change the pattern of care – unable to determine care percentages – existing care percentages not to be revoked – 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 Nauman and Ms Berthold are the parents of [the child]. Mr Nauman is the parent liable to pay child support.

2.The Department of Human Services (now known as Services Australia) – Child Support (the Department) recorded care of the child as 86% care for Ms Berthold and 14% care for Mr Nauman from 16 June 2009.

3.On 22 June 2019 the Department determined that Ms Berthold had a percentage of care of 100% for the children and Mr Nauman had a percentage of care of 0% from 8 April 2019.

4.On 21 May 2020 Mr Nauman lodged an objection to the above care decision of the Department, stating that he had at least 50% care of the child and probably more like 70% care.   

5.On 23 July 2020 the Department determined that there was insufficient evidence from either party to support a change in care from 8 April 2019 and therefore decided to continue to reflect the care of the child as had been previously recorded, that is 86% care for Ms Berthold and 14% care for Mr Nauman from 16 June 2009. The effect of this decision was to partly allow Mr Nauman’s objection.

6.On 6 August 2020 Mr Nauman lodged an application to the Administrative Appeals Tribunal (the tribunal) for a review of the decision. The hearing took place on 9 November 2020. Mr Nauman and Ms Berthold participated in the hearing via conference telephone and gave sworn evidence. In making its decision the tribunal took into consideration the documents provided by the Department (departmental documents), which were also sent to Mr Nauman and Ms Berthold. During the hearing Mr Nauman advised that he had not received a copy of the departmental documents prior to the hearing. The tribunal notes that in preliminary proceedings on 2 October 2020, the presiding member at the time of these proceedings advised Mr Nauman to check that he had received the departmental documents and to read them carefully prior to the date of the hearing. There is no record of Mr Nauman contacting the tribunal after these preliminary proceedings at any time between 2 October 2020 and 9 November 2020 to advise that he had still not received the departmental documents and/or to request another copy of the departmental documents. Given this, the tribunal proceeded with the hearing as scheduled and provided Mr Nauman with appropriate information regarding the content of the departmental documents as required during the hearing.

CONSIDERATION

7.The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

8.The issues arising in this case are what was the care of the child from 8 April 2019 (2020/PC019618) and the date of effect of this care decision (2020/PC019635).

What was the care of the child from 8 April 2019?

9.The departmental documents show that care of the child was recorded as 86% care for Ms Berthold and 14% care for Mr Nauman from 16 June 2009.

10.They also show that Ms Berthold advised the Department on 6 May 2019 that there had been a change in care on 8 April 2019 such that she had 100% care of the child from this date.

11.Having received no substantive evidence from Ms Berthold but also no evidence or response from Mr Nauman in relation to this proposed change in care, on 22 June 2019 the Department determined that the care of the child was 100% for Ms Berthold and 0% for Mr Nauman from 8 April 2019.

12.On 21 May 2020, some 11 months after the original decision had been made, Mr Nauman lodged an objection to this change of care decision, maintaining that he had at least 50% care of the child but probably up to 70% care of the child.

13.On 23 July 2020 the Department partly allowed the objection, determining that there was insufficient evidence to determine any change of care had occurred on 8 April 2019 and therefore reverting to the previous determination of care, that is 86% care for Ms Berthold and 14% care for Mr Nauman from 16 June 2009.

14.Mr Nauman has now requested a review of this decision by the Department’s objections officer on the grounds that he believes he had at least 50% care of the child prior to April 2019 and that it did not change from April 2019.

15.During discussions with the Department Mr Nauman and Ms Berthold confirmed that there were no formal care arrangements in place for the children: no court order or parenting plan.

16.During the hearing Mr Nauman told the tribunal that, prior to April 2019, both parents had week about care of the child. Mr Nauman said that in April 2019 the child was returned to him early,  because Ms Berthold said that she was busy, and he was frustrated and returned the child to Ms Berthold’s care for the remainder of her week of care. He said that after this Ms Berthold refused to return the child into his care until 22 July 2019. During the period April 2019 to July 2019 he said he constantly tried to contact Ms Berthold to restore his regular care of the child but she refused to speak to him or take his calls. He maintained that, at no time did he expect that he would continue to have no care of the child and he kept pursuing the issue with Ms Berthold throughout this period. He also said that his boss at work and other acquaintances tried to call Ms Berthold on his behalf but she refused to discuss his access to the child with anyone.

17.Mr Nauman also told the tribunal that during the period of April 2019 to 21 July 2019 the child was cared for by Ms Berthold’s family and friends as well as Ms Berthold herself, so it was incorrect to say that Ms Berthold had 100% care of the child. He maintained that Ms Berthold had never had 100% care of the child since he was born. Further, he maintained that during the period when he was denied access to the child, he continually tried to get Ms Berthold to agree to a regular week around pattern of care for them both so that he and the child could have some stability and certainty.

18.Mr Nauman acknowledged that during the period when he was denied care of the child, Ms Berthold was paying for the child’s costs but he strongly asserted that he remained the primary contact person for the child’s school. He also pointed out that the child attends a school close to his home and would not be eligible to attend that school if the child wasn’t living for a significant proportion of the time at Mr Nauman’s house. He also noted that Ms Berthold lives about eight kilometres away from the child’s school.

19.Mr Nauman further advised that, as far as he was aware, the child did not have any additional social or after school activities other than the [sport] academy and club activities that he enrolled the child in which both took place in his local area.

20.The tribunal noted that the departmental documents contain oral evidence provided by Mr Nauman about care of the child which can be summarised as follows:

-    the only pattern of care for the child has been that both parents have usually had care week on week off for a long time;

-    before this, Mr Nauman had even more than 50% care of the child;

-    Mr Nauman moved to his current residential address so the child could attend the local school there and if the child didn’t live there, the child would not be allowed to go;

-    he also enrolled the child in the local [sport] academy and [sport] team which are local to his residential address;

-    he would not have done any of these things unless the child was living with him for a substantial period of time; and

-    Mr Nauman is the main contact person for the school and has letters from the school which demonstrate this.

21.The tribunal also noted that Mr Nauman did not provide the tribunal with any independent evidence of the care he provided for the child from 8 April 2019. Nor did he provide any detailed record that he kept of the care and while he said he had some personal journal notes that contain some information about what happened during the relevant period, he was unable to use this information to recall exact dates in response to the tribunal’s questions.

22.During the hearing Ms Berthold told the tribunal that, prior to April 2019, Mr Nauman had an average of two or three nights care of the child each week, with the exact nights varying from week to week as there was no fixed agreement between them. She said that sometime in March 2019 she commenced having 100% care of the child because Mr Nauman refused to care for the child. She said she is not sure exactly when this happened but accepts that she lodged an application with the Department for a change in care commencing from 8 April 2019. She said that there was no communication between her and Mr Nauman but she was shocked to find that she had to take on full time care of the child because Mr Nauman suddenly refused to care for him at that time. She further advised that both herself and her mother attempted to contact Mr Nauman to discuss and agree on revised care arrangements but that Mr Nauman did not respond and so she “left it for a while”, continuing to provide 100% care, to allow Mr Nauman some “breathing time”.

23.Ms Berthold told the tribunal that she had 100% care of the child from April 2019 to late spring-early summer 2019, although she was unable to provide exact dates. She refuted Mr Nauman’s claim that he had 50% care of the child again from 22 July 2019. Ms Berthold also told the tribunal that from April 2019 she paid for all of the child’s costs, arranged all of the child’s social activities, was the contact person with the school and made all decisions regarding the child’s education including arranging weekly tutoring. She further advised that she was responsible for the child’s medical care during this period, pointing out that the school contacted her in May 2019 when the child’s [body part] broke and the child needed medical attention. She concluded by stating that she remained 100% responsible for the child from April 2019 until late 2019 and that, while the child occasionally stayed with family members, she retained responsibility for the child on each of those occasions.

24.The tribunal noted that the departmental documents do not contain any independent evidence  to support Ms Berthold’s claim that she had 100% care of the child from 8 April 2019.

25.The tribunal also noted that Ms Berthold did not provide the tribunal with any documents setting out details of the care she provided from 8 April 2019. Instead she noted that her employer had to adjust her work hours to accommodate her caring responsibilities and that she went to mediation at the time, but she did not provide any evidence from either of these third parties regarding the care of the child during the relevant period.

26.During the hearing Mr Nauman and Ms Berthold both advised that they had not kept specific records of the care that they provided from April 2019.

27.Section 50 of the Act requires a determination of a percentage of care to be made where the tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period as considered to be appropriate having regard to all the circumstances.

28.In making this determination the tribunal is required to consider the intended pattern of care at the time of Ms Berthold’s application. However, in this case, there is no agreement between the parties about the intended care of the child on or around 8 April 2019. Ms Berthold asserts that she became aware that she would have 100% care of the child from 8 April 2019 because Mr Nauman refused to care for the child around this time. On the other hand, Mr Nauman says that he was prevented from having care of the child on or around 8 April 2019 and that he never intended for the previous pattern of care to change at this time. Further, he maintains that he continually tried to resume week around care with Ms Berthold from April 2019 until she finally agreed to let him have some care of the child in July 2019.

29.The tribunal notes that Ms Berthold’s evidence to the tribunal during the hearing was not consistent with her advice to the Department during the relevant period. The departmental documents show that on 22 May 2020 Ms Berthold made an application for a care change to 50% care for both parents from 20 July 2019.[1] This is not consistent with her evidence to the tribunal during the hearing in which she said that Mr Nauman didn’t resume care until towards the end of 2019.

[1] Departmental documents page 53

30.Meanwhile, Mr Nauman maintains that he had at least 50% care of the child but more likely up to 70% care in the period prior to April 2019 and that he never agreed or intended that he would have no care of the child from 8 April 2019. While Mr Nauman strongly asserts that he had more than 14% care of the child for many years, the tribunal notes that he did not proceed with an application to have his record of care increased from 14% at any time from 2009 to April 2019. Indeed, the departmental documents show that, in 2016 Mr Nauman actually applied for a change in care. However, the documents also record that when he discussed this application further with the Department on 3 May 2016, he advised that he did not want to change the level of care recorded, even though he has more care of the child and he then instructed the Department that he was withdrawing his application for a change in care.[2]

[2] Departmental documents page 19

31.Having taken into account the available evidence, including the evidence provided to the Department and during the hearing by both parties, the tribunal is not satisfied that there was any agreement between the parents regarding a change to the ongoing pattern of care of the child from 8 April 2019.

32.Further, the tribunal notes that no substantive evidence has been provided by either party regarding the intended pattern of care from 8 April 2019 or the actual care that was provided prior to and after 8 April 2019. In addition, both parties provided contradictory evidence regarding the care arrangements for the child prior to and after 8 April 2019 and what their ongoing expectations of care was at the time.

33.In considering this matter, the tribunal has taken into account the policy set out in chapter 2.2.1 of the Guide[3] which states that, if the information and evidence provided by the parents cannot be reconciled, the Registrar will weigh the evidence and information provided by the parents to determine the pattern of care likely to occur over the care period. The Guide also states that if the information provided by the parents or carers is inconclusive to the extent that the Registrar is unable to determine what care percentage each parent or carer is likely to have over the relevant care period, the Registrar will assume that the state of affairs known to it at the time the existing care determination was made is continuing.

[3] The Child Support Guide (the Guide) is the government policy adopted by the Department that applies to the interpretation and application of the child support legislation. Generally, the Tribunal will follow the Guide unless there is a cogent reason not to do so. There are no circumstances in this matter that would require the Guide to be disregarded.

34.In this matter the tribunal finds that the information and evidence provided by the parties is inconclusive and unable to be reconciled. Therefore, consistent with the policy in the Guide, the tribunal agrees with the Registrar’s assessment that a change in care which constitutes a change to the pattern of care from 8 April 2019 cannot be determined, as required under section 50 of the Act. Further, the tribunal does not find that a change in care prior to 8 April 2019 can be determined based on the information and evidence provided.

35.Accordingly, the tribunal concludes that the care percentages from 8 April 2019 were the same as Mr Nauman’s and Ms Berthold’s care percentages from 16 June 2009 and therefore the existing determinations of percentages of care are not to be revoked as there has been no change in the care percentages.

36.The tribunal notes that this is consistent with the decision of the objections officer and means that Mr Nauman’s objection has been partly allowed.

As Mr Nauman’s objection is to be partly allowed, from what date should the pre-existing care percentages apply to the child support assessment?

37.There is no time limit on a person lodging an objection to a decision made by the Department about a percentage of care determination. However, if an objection is made more than 28 days after the notice of the care percentage decision was served upon the person, the objection decision only takes effect from the day the objection was made unless there are “special circumstances that prevented the person from lodging the objection within the period”, pursuant to subsection 87AA(2) of the Registration Act

38.The decision against which Mr Nauman objected was made on 22 June 2019 and Mr Nauman made his objection on 21 May 2020, some 11 months later.  During the hearing Mr Nauman did not dispute these dates.

39.The meaning of “special circumstances” is not defined in the Registration Act. For guidance, I had regard to the Department’s policy, set out in the Guide at 4.1.8, which states:

Special circumstances

In considering special circumstances the Registrar will look at the particular circumstances of the applicant. The applicant must show that their particular circumstances prevented them from lodging an objection within the required timeframe. They must explain why there was a delay in lodging the objection and that the circumstances are sufficiently special for the applicant to receive the benefit of an extension to the period in which to lodge an objection, in order for the objection decision to have effect from an earlier date. Some examples of special circumstances may include:

·the parent was seriously ill or had an accident that stopped them from lodging an objection

·the parent suffered a personal trauma such as a death in the family or a natural disaster that caused damage to the parent's property

·the parent had communication difficulties, including isolation, illiteracy or poor English-language skills

·the parent reasonably relied upon inaccurate or misleading information.

If the Registrar is satisfied that special circumstances exist, the Registrar will then consider whether it is appropriate to exercise the discretion to extend the period in which to lodge the objection (section 87AA(2)). The Registrar will consider if:

·the decision to extend the period in which to lodge the objection will prejudice the other parent. For example, will the extension that results in an earlier date of effect for the objection decision create a significant overpayment or significant arrears of child support?

·the applicant rested on their rights. For example, did the applicant make any efforts to lodge the objection earlier, communicate to DHS that the decision was being contested or raised their concerns in other ways - for example, a complaint to DHS or the Ombudsman?

If the Registrar makes a determination under section 87AA(2) to extend the period in which to lodge the objection, then the objection is considered to have been received within the prescribed timeframe. The objection decision will then replace the original care percentage decision from the first day that original decision had effect.

40.In his discussions with the Department regarding this matter, Mr Nauman’s evidence was that he didn’t receive the Department’s notice about the change in care decision sent to him in a letter dated 22 June 2019. He told the Department that this was most likely because he had moved to a new residential address around this time. He further advised that he had updated his address with a different government department and assumed that his address would automatically be updated with other government agencies, including the Department.

41.During the hearing Mr Nauman said he wasn’t able to object to the Department’s care decision before 21 May 2020 because he was unaware that the care had been changed to 100% for Ms Berthold. He also said that he was unaware that the previous care recorded for him was 14% care (or 51 days of care per year) which he found objectionable and offensive. He further stated that he didn’t know that he had to advise the Department of his change in address and wasn’t aware of anything that was happening to his child support assessment at the time so he wasn’t aware that he needed to make contact with the Department.

42.The tribunal considered Mr Nauman’s argument that he was unaware that a decision regarding change of care had been made and therefore he was not in a position to object to it any earlier than May 2020, when he first became aware of it.

43.In doing so, the tribunal noted that sections 28A and 29 of the Acts Interpretation Act 1901 permits the service of documents under Commonwealth legislation by sending the documents via pre-paid post to the place of residence or business of the person which is that last known to the Secretary of the relevant department.

44.The tribunal is satisfied that the Department discharged its responsibility to notify Mr Nauman of the decision regarding change of care by sending him a letter via pre-paid post dated 22 June 2019 at the residential address last known to the Department at the time.

45.The tribunal also concurs with the objections officer’s view that it is individual parents who are responsible for keeping their contact details up to date with the Department at all times.

46.The tribunal accepts that Mr Nauman was unaware of the Department’s decision of 22 June 2019 regarding a change in care because he may not have received the notices that were sent to him. However, in the tribunal’s view this situation was caused by inaction on the part of Mr Nauman in not reporting his change in address to the Department and not by any special circumstances as envisaged under the Registration Act. Accordingly, the tribunal determines that there were not special circumstances which prevented Mr Nauman from making his objection within 28 days of being notified about the decision and the discretion provided for in subsection 87AA(2) of the Registration Act should not be exercised in Mr Nauman’s case.

47.This means that the date of effect of the tribunal’s decision to return the care percentages to 86% for Ms Berthold and 14% for Mr Nauman is prescribed by subsection 87AA(1) of the Registration Act, and that is the date Mr Nauman made his objection: 21 May 2020.

48.In summary, the tribunal’s decisions on both matters under review are the same as the decisions of the objections officer and therefore the tribunal affirms the decisions under review.

DECISION

The tribunal affirms the decisions under review.