Nauman and Berthold (Child support)

This case concerned a review by the Administrative Appeals Tribunal (the tribunal) of a decision made by the Child Support Registrar regarding the percentage of care of a child between the child's parents, Mr Nauman and Ms Berthold. Mr Nauman was the parent liable to pay child support. The dispute arose from a decision by the Department of Human Services (now Services Australia) on 22 June 2019 to change the recorded care percentages from 86% for Ms Berthold and 14% for Mr Nauman (in place since 2009) to 100% for Ms Berthold and 0% for Mr Nauman, effective from 8 April 2019. Mr Nauman objected to this change, asserting he had at least 50% care. The Department's subsequent decision on 23 July 2020 partly allowed Mr Nauman's objection, reverting to the original care percentages from 16 June 2009 due to insufficient evidence of a change. Mr Nauman sought review of this decision by the tribunal.

The tribunal was required to determine the percentage of care of the child from 8 April 2019 and the effective date of any care decision. Specifically, the tribunal had to consider whether there had been a change to the likely pattern of care from 8 April 2019, and if so, what those new percentages should be. A further issue was whether "special circumstances" existed that would allow Mr Nauman's objection, lodged 11 months after the Department's decision, to have effect from an earlier date than the objection lodgement date.

The tribunal applied section 50 of the Child Support (Assessment) Act 1989, which requires a determination of care percentages if satisfied that a person has had, or is likely to have, a pattern of care. The tribunal found that there was no agreement between the parties regarding a change to the pattern of care from 8 April 2019, and neither party provided substantive evidence to support their claims about the actual care provided or their intended pattern of care. Both parties provided contradictory evidence. Applying the policy in the Child Support Guide, which states that if evidence is inconclusive, the existing determination should continue, the tribunal concluded that a change in care from 8 April 2019 could not be determined. Regarding the effective date of the decision, the tribunal considered section 87AA of the Child Support (Registration and Collection) Act 1988, which allows for an earlier effective date if special circumstances prevented timely objection. The tribunal found that Mr Nauman's failure to update his address with the Department, leading to his unawareness of the initial decision, did not constitute special circumstances.

The tribunal affirmed the decisions under review. It concluded that the care percentages from 8 April 2019 were the same as those from 16 June 2009, meaning the existing determinations were not revoked due to no change in care percentages. Consequently, Mr Nauman's objection was partly allowed, but the effective date of the decision to revert to the pre-existing care percentages was the date Mr Nauman lodged his objection, 21 May 2020, as special circumstances were not found.