Ascroft and Skaife (Child support)

Case •

[2025] ARTA 625

•

28 February 2025

Ascroft and Skaife (Child support) [2025] ARTA 625 (28 February 2025)

Applicant:  Ms Ascroft

Respondent:  Child Support Registrar

Other Parties:  Mr  Skaife

Tribunal Number:   2024/AC028649

Tribunal:Senior Member S Trotter

Place:Brisbane

Date:28 February 2025

Decision:The Tribunal sets aside the decision under review and substitutes a new decision that, in respect of [Child 1]:

1.the existing percentage of care determination of 86% to Ms Ascroft is revoked from 24 March 2022 and replaced with a new percentage of care determination of 72% applying from 25 March 2022;

2.the then existing percentage of care determination of 72% to Ms Ascroft is revoked from 20 December 2023 and replaced with a new percentage of care determination of 67% applying from 21 December 2023; and

3.the then existing percentage of care determination of 14% to Mr Skaife is revoked from 23 April 2024 and replaced with a new percentage of care determination of 33% applying from 24 April 2024.

The Tribunal determines pursuant to subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 that subsection 95N(1) of that Act applies in this matter as if the reference to 28 days in paragraph 95N(1)(b) was a reference to a longer period extending until 2 October 2024.

Statement made on 28 February 2025 at 4:34pm

CATCHWORDS 

CHILD SUPPORT – percentage of care – change of care occurred – date of effect – relevant considerations – existing care determination revoked – decision under review set aside and substituted 

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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.

Statement of Reasons

BACKGROUND

  1. Ms Ascroft and Mr Skaife are parties to a child support case registered with Services Australia – Child Support (Child Support) in relation to financial support to be provided for [Child 1] (born 2011). This application concerns a single decision of Child Support about the percentage of care determinations for each parent for [Child 1] utilised in calculation of the child support liability.

  2. The existing percentage of care determinations applying in the child support case for [Child 1] were 86% to Ms Ascroft and 14% to Mr Skaife. Child Support’s records show that on 23 April 2024, Mr Skaife notified Child Support that the care of [Child 1] had changed to 37% to him and 63% to Ms Ascroft from 1 March 2020.

  3. On 2 May 2024, Child Support decided to revoke the existing percentage of care determinations and record new percentage of care determinations of 63% to Ms Ascroft and 37% to Mr Skaife. Notably, as Mr Skaife notified the change of care on 23 April 2024, more than 28 days after the change of care was found to have occurred on 1 March 2020, pursuant to the relevant child support legislation the recorded increased percentage of care determination from 14% to 37% to Mr Skaife only applied from 23 April 2024 (the date of Mr Skaife’ notification). However, the recorded decreased percentage of care determination from 86% to 63% for Ms Ascroft applied from 1 March 2020 (the date of the care change).

  4. On 28 May 2024, Ms Ascroft contacted Child Support stating that the care of [Child 1] did not change until 31 December 2022 and that it changed to 72% care to her and 28% care to Mr Skaife. This contact by Ms Ascroft was treated as an objection to the 2 May 2024 lodged within time and actioned by Child Support on 13 June 2024 as an objection. Ms Ascroft was recorded as stating that the care did not change until 17 April 2022 but she subsequently corrected this and advised that the care actually changed on 25 March 2022.

  5. On 2 September 2024, a Child Support objections officer disallowed the objection on the basis that the information provided by Ms Ascroft, namely a care calendar for the two weeks 20 March 2022 to 2 April 2022, was not sufficient to prove that care changed on 25 March 2022.[1]

    [1] The objection decision refers to the date ‘25 May 2022’ however it is clear that this is a typographical error and the relevant date, as contended by Ms Ascroft, is 25 March 2022.

  6. On 3 September 2024, Ms Ascroft contacted Child Support stating that there had been a change in care of [Child 1] to care corresponding to 68% to her and 32% to Mr Skaife from 25 March 2022. Child Support treated this contact by Ms Ascroft as a new notification of a change in care requiring a separate decision with subsequent contact with both parents and a decision made in relation to this notification on 8 November 2024 (see paragraph 9 of these Reasons).

  7. On 2 October 2024, Ms Ascroft lodged an application with the Administrative Appeals Tribunal (the AAT) seeking an independent review of Child Support’s decision, stating as follows (unedited):

    I'm not disputing the 4 nights as current, l'm disputing that they didn't start in 2020 but in 2022.

    When I was called to confirm after Mr Skaife changed the care %, I told the lady the date of 2020 was not accurate and it was a later date however I would need to think and investigate via my msgs and diary etc, she advised it didn't really matter for their purposes so l left it as is as was currently 4 nights per fortnight.

    However 2020 is not correct and going by the objection letter I got there is actually no evidence provided to say it was 2020 however I showed a screenshot of our shared diary showing the date it started ( it showed two weeks but my intent was show when it started and it is ongoing) so why would my objection be disallowed and stay as is.

    I sent evidence from my side and no evidence was sent from the other side.

    Hi Mr Skaife, Confirming our care arrangements are 4 nights per fortnight (Fri, Sat, Sun and Mon) to you since March 2022 not 2020. And school holidays week alternate didn't start until Dec 2023.

    This makes the care percentages 28% to Mr Skaife from March 2022 until change to holiday care started, then it was 33% to Mr Skaife as of Dec 2023.
    Mr Skaife advised CSA the calculation of 37% to himself from 2020, as this is not correct and I would like it reflected correctly.

  8. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are taken to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.

  9. On 8 November 2024, Child Support rejected the change in care taken to have been notified by Ms Ascroft on 3 September 2024 that is a change in care to 68% to her and 32% to Mr Skaife from 25 March 2022. That decision is not the subject of this application and each party has separate review rights in relation to the 8 November 2024 decision. However, notably, the underlying change in care notified overlaps with the issues before the Tribunal in relation to this application.

  10. Ms Ascroft and Mr Skaife participated in a hearing before the Tribunal by telephone on 16 January 2025 in relation to Ms Ascroft’s 2 October 2024 application to the Tribunal. A representative from Child Support did not participate in the hearing. In addition to Ms Ascroft’s and Mr Skaife’ sworn oral evidence and submissions, I took into account documents copied to all parties, including documents provided by Child Support (Exhibit 1, pages 1 to 181).

ISSUES

  1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act). Unless otherwise noted, all legislative references in these Reasons are to the Act. The legislation provides the Registrar, that is, Child Support, and the Tribunal on review, with rules for assessing and changing percentage of care determinations, which are then used as part of the child support formula to assess child support rates.

  2. I also had regard to the Child Support Guide (the Guide) where relevant. As recognised by the Federal Court in MDXJ v Secretary, Department of Social Services [2020] FCA 1767:

    The part which a governmental policy should ordinarily play in the determinations of the Tribunal is a matter for the Tribunal to determine, in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions, but balanced against the ideal of justice in the individual case (Hneidi v Minster for Immigration and Citizenship [2010] FCAFC 20: (2010) 182 FCR 115 at [43]). Further, it is well-established that the Tribunal must make the correct or preferable decision in each case on the material before it and that the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 642-643 per Brennan J). The important matter is compliance with the terms of the relevant statute itself Minster for Home Affairs v G [2019] FCAFC 79; (2019) 266 FCR 569.

  3. The child support legislation provides for assessment of child support using a formula taking into account numerous variables, including relevant care percentages for each party to a child support assessment.

  4. Sections 49 and 50 require initial percentage of care determinations to be made upon initial registration of a child support case usually based upon the actual care of a child parties to a child support case have. Existing percentage of care determinations are usually required to be revoked, pursuant to either section 54G, 54F or 54H, when a change of care occurs and new percentages of care apply.

  5. Except for in certain circumstances not relevant to this case, care percentages are to be determined corresponding to the actual care a person has had, or is likely to have, during a care period.

  6. As to the appropriate care period to be considered, a care period is defined in the Act as being such a period as considered to be appropriate having regard to all the circumstances. The Guide provides that a care period is generally the 12-month period starting from the date the actual care of the child began or changed. The same care arrangements will then be assumed to continue to apply after the end of the care period unless Child Support is notified or becomes aware of a subsequent change in the pattern of care and the requirements of the legislation are satisfied for a new care decision to be made.

  7. Both sections 49 and 50 first require consideration of whether the relevant person has had, or is likely to have, no pattern of care or a pattern of care for a child for the care period. If applicable, section 49 then requires a percentage of care determination of 0% for a person with no pattern of care. If applicable, section 50 then requires that the percentage of care determined for the relevant person must be a percentage that corresponds with the actual care the person has had, or is likely to have, during the care period. Section 54A provides that the actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that a child was, or is likely to be, in the care of a person.

  8. The legislative test therefore first requires consideration of whether a person has had, or is likely to have, a pattern of care of a child for a care period, and, if so, then assessment of the actual care a person has had, or is likely to have, during the care period is required.

  9. As was recognised by Thomas J in the Federal Court case of Child Support Registrar v BKCZ [2023] FCA 1109 at [72], section 50 allows a decision-maker flexibility to consider what care a person ‘had or is likely to have’ depending upon when, relative to the care period, the decision is being made.

  10. The issues which arise in this case are:

    ·      Are the existing percentage of care determinations to be revoked? and, if so,

    ·      What are the new percentage of care determinations for Ms Ascroft and Mr Skaife?

    ·      What are the dates of application of the new percentage of care determinations? and

    ·      What is the date of effect of the Tribunal’s decision?

CONSIDERATION

  1. Ms Ascroft’s position is that she does not dispute that there was a change in the care of [Child 1] but disagrees that the change occurred on 1 March 2020. Rather, Ms Ascroft submitted that the change occurred in 2022 and not on 1 March 2020. Ms Ascroft said that when Child Support rang her to ask whether she agreed with the reported change in care, she was told that because it was years after the event, it wouldn’t make any difference that Mr Skaife was saying it was from 2020 not 2022. She therefore just agreed with the changed percentage.

  2. When queried as to the basis for which he says the care changed from 2020, Mr Skaife said that he had set up the myGov app on his phone and he had a number of missed messages dating back to 2020 and he started going through those messages and thought he best notify Child Support. He did an online notification. He said he thinks that he double‑checked the calendar that had been set up. He, Ms Ascroft and his partner have a shared calendar, on a phone app, so that they can all be on the same page as to what is happening for [Child 1]. However, when he now goes back and looks at the dates in that calendar for 2020, they are blank, but from 2022 it shows the pattern of care he had of four nights per fortnight and half the school holidays.

  3. Ms Ascroft in response said that they weren’t using the shared calendar in 2020 – she doesn’t remember exactly when they first started using it but she thinks they started using it in late 2021/early 2022. Ms Ascroft said the previous pattern of care was that Mr Skaife had two nights care per fortnight (which corresponds with 14%) but that it chopped and changed a bit. Mr Skaife’ care then increased to four nights per fortnight (care corresponding with 28%) but not until 2022. Ms Ascroft referred to copies of text messages in March 2022 that were provided to Child Support that show she and Mr Skaife were making arrangements in relation to drop-offs and pick-ups for the new four nights per fortnight care arrangement (pages 119 to 122 of Exhibit 1) with the calendar (page 125 of Exhibit 1) showing that arrangement commenced on 25 March 2022. Ms Ascroft further said, however, that further increased care to Mr Skaife of four nights per fortnight plus half the school holidays did not occur at that time. It did not occur until November 2023, as can be seen by other text messages, such as one on 20 December 2023 when Mr Skaife was suggesting week on, week off care in December 2023/January 2024 (pages 131 to 133 of Exhibit 1).

  4. Mr Skaife’ position is that the pattern of care of [Child 1] changed from 1 March 2020. His evidence was that he based that position, as advised to Child Support on 23 April 2024, on the shared calendar that had been set up. However, Mr Skaife’ evidence at hearing was that the calendar back to 2020 is blank and that it only commences in 2022. There was otherwise no evidence corroborating Mr Skaife’ oral evidence that that was when the care changed.

  5. There is considerable inconsistent evidence before me as to what care was occurring and when. As can be seen, Ms Ascroft and Mr Skaife are each recorded as advising different care patterns and actual care of [Child 1] at various different times. In making this observation, I am not being at all critical of either Ms Ascroft or Mr Skaife. Rather, this reflects that the nature of care of children can be fluid and variable and at times it can be very uncertain what pattern if any is actually occurring.

  6. Where there is inconsistent evidence, I nonetheless ultimately have to reach a conclusion as to whether there was a pattern of care from [Child 1] from time to time, if so, when, and if that pattern changed, if so what actual care of [Child 1] was occurring.

  7. I have had regard to the various statements made from time to time by Ms Ascroft and Mr Skaife, including to both Child Support and the Tribunal, as to what care was occurring (as detailed earlier in these Reasons). Ultimately, I have placed most reliance upon contemporaneous documents, including text messages, to assist in determining the issues before me. I consider the text messages in March 2022 showing contact between Ms Ascroft and Mr Skaife about upcoming arrangements for the changed care position to four nights per fortnight to be supportive of there being a change in care from 25 March 2022 with Mr Skaife’ care increasing to four nights per fortnight from that time. This is also corroborated by a copy of the care calendar provided by Ms Ascroft showing four nights of care to Mr Skaife commencing 25 March 2022.

  8. I further consider the text messages of 20 December 2023 proposing one week on, one week off care in the holidays commencing 21 December 2023 to be supportive of there being a further change in care on 21 December 2023 with Mr Skaife’ care increasing to four nights per fortnight plus half the school holidays from that time.

  9. I also recognise that there may have been minor changes to the pattern of care of [Child 1] at times, as would not be unexpected given the vagaries of life that occur, however consistent with section 2.2.1 of the Guide, such minor departures do not mean that the pattern of care has changed.

  10. I am satisfied that care periods of 12 months are appropriate in the circumstances and that the care periods based upon my findings in relation to this application are the care periods 25 March 2022 to 24 March 2023 and 21 December 2023 to 20 December 2024 respectively.

  11. Four nights’ care per fortnight to Mr Skaife equates to a percentage of care corresponding to 28%.[2] Four nights’ care per fortnight to Mr Skaife plus half the school holidays equates to a percentage of care corresponding to 33%.[3]

    [2] 4 nights x 26 fortnights = 104 nights = 28% rounded down pursuant to paragraph 54D(b) of the Act.

    [3] (½ of 12 weeks of school holidays = ½ of 84 nights = 42 nights) + (4 nights per fortnight of the remaining 40 weeks of the year = 4 x 20 = 80 nights) = 42 + 80 = 122 nights = 33% rounded down pursuant to paragraph 54D(b) of the Act.

Issue 1: Are the existing percentage of care determinations to be revoked?

  1. I have found that the care of [Child 1] changed to care corresponding to 72% to Ms Ascroft and 28% to Mr Skaife from 25 March 2022 and further again to care corresponding to 67% to Ms Ascroft and 33% to Mr Skaife from 21 December 2023.

  2. Section 54F provides that an existing care percentage decision must be revoked if the Child Support Registrar is notified, or becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded, that the change would alter the cost percentage used for a parent in the administrative assessment, and that section 54G does not apply and section 51 does not apply or no longer applies.

  3. Section 55C contains a table that is used to work out a person’s cost percentage:

Cost percentages

Item

Column 1
Percentage of care

Column 2
Cost percentage

1

0 to less than 14%

Nil

2

14% to less than 35%

24%

3

35% to less than 48%

25% plus 2% for each percentage point over 35%

4

48% to 52%

50%

5

more than 52% to 65%

51% plus 2% for each percentage point over 53%

6

more than 65% to 86%

76%

7

more than 86% to 100%

100%

  1. Section 54G provides that a care determination must be revoked if a parent was to have at least regular care pursuant to an existing percentage of care determination and the other parent was to have more than 0% care, they have no care or less than regular care (subsection 5(2) defines regular care as being care between 14% and 35%) despite the other responsible person making care available, and the change in care was notified within a reasonable period of time. Mr Skaife’ care did not reduce to below 14% at any time and section 54G therefore does not apply. Section 51 also has no application in the circumstances of this matter.

  1. I have found that the care of [Child 1] changed from 25 March 2022 to care corresponding to 72% to Ms Ascroft and 28% to Mr Skaife and changed further from 21 December 2023 to care corresponding to 67% to Ms Ascroft and 33% to Mr Skaife.

  2. Care of 72% to Ms Ascroft and 28% to Mr Skaife from 25 March 2022 does not correspond with the then existing percentage of care determinations recorded by Child Support of 86% to Ms Ascroft and 14% Mr Skaife. A change in care to 72% to Ms Ascroft and 28% to Mr Skaife would change each parent’s cost percentage pursuant to the table in section 55C.

  3. As regards the further change in care I have found occurred from 21 December 2023, to care corresponding to 67% to Ms Ascroft and 33% to Mr Skaife, there is arguably conflicting Federal Court authority as to whether the Tribunal can make two percentage of care determinations.

  4. In Child Support Registrar v DQFY [2023] FCA 601 (7 June 2023) (DQFY), the parents agreed that there had been a subsequent change in the pattern of care from a date that was after the date of the decision under review and the Court found that the Tribunal on second review had not erred in making a care determination that set two consecutive percentages of care for each parent, the second of which was a date that was well after the date of the original decision and the objection decision. The Court stated as follows:

    It is likely that, in most cases, where the Tribunal revokes a determination and makes a new one there will be evidence of care arrangements which were not before the Registrar and those arrangements have no obvious end-date. In that case, the new determination would remain in place until revoked under s 54F or s 54H at some time in the future, after the Registrar becomes aware of a change in care.

    The bifurcation of the replacement determination in this case was necessitated by the uncontested evidence presented to the Tribunal that the parents had reached a parenting arrangement which would take effect from 3 June 2020. There was no hurdle to the Tribunal being satisfied of the pattern of care that the father and mother were “likely to have” from 3 June 2020 for the purposes of s 50(1)(b)(ii) of the Assessment Act.

  5. However, in LJSS, on 9 June 2023, only days after DQFY was handed down, orders were made by consent finding that the Tribunal had erred in finding that second and third care determinations under subsection 50(2) of the Act could be made without first revoking (either expressly or impliedly) the first and second determinations under section 54F or section 54H of the Act pursuant to paragraph 50(1)(b) of the Act.

  6. Unlike in DQFY, where the second change in care occurred both after the date of notification and after the decision under review, before me are two changes in care that I have found occurred prior to the notification on 23 April 2024 and prior to the decision under review.

  7. I am satisfied that Mr Skaife’ notification on 23 April 2024 is notification that the care of [Child 1] that was actually taking place no longer corresponded with the existing percentages of care for [Child 1] and constitutes notification for the purposes of paragraph 54F(1)(a) in relation to the changes in care I have found happened on both 25 March 2022 and 23 November 2023. Consistent with LJSS, revocation of the existing percentages of care in relation to both the 25 March 2022 and the 21 December 2023 change in care is required pursuant to section 54F if all other requirements for revocation pursuant to section 54F are met.

  8. From 25 March 2022 (when I have found that care changed) the then existing percentages of care of 86% to Ms Ascroft and 14% to Mr Skaife were no longer percentages of care corresponding with the actual care taking place. Then from 21 December 2023 (when I have found that care changed further) what would then be the existing percentages of care of 72% to Ms Ascroft and 28% to Mr Skaife would no longer be percentages of care corresponding with the actual care taking place.

  9. A change in care to 72% to Ms Ascroft and 28% to Mr Skaife and then to 67% to Ms Ascroft and 33% to Mr Skaife would change each parent’s cost percentage pursuant to the table in section 55C on each occasion. Revocation pursuant to section 54F is therefore required of the existing percentages of care of 86% to Ms Ascroft and 14% to Mr Skaife existing prior to 25 March 2022 and further revocation is then required of the then existing percentages of care of 72% to Ms Ascroft and 28% to Mr Skaife then existing prior to the 21 December 2023 change in care.

Issue 2: What are the new percentage of care determinations for Ms Ascroft and Mr Skaife?

  1. I determine that Ms Ascroft’s percentage of care is 72% and Mr Skaife’ percentage of care is 28% in relation to the change of care that I have found occurred on 25 March 2022.

  2. I determine that Ms Ascroft’s percentage of care is 67% and Mr Skaife’ percentage of care is 33% in relation to the change of care that I have found occurred on 21 December 2023.

Issue 3: What is the date of application of the revocation of the pre‑existing percentage of care determinations and the date of application of the new percentage of care determinations?

  1. I have found that both changes in care are taken to have been notified on 23 April 2024, more than 28 days after the change in care I have found occurred. Mr Skaife queried why Ms Ascroft had not notified the change in care at an earlier date. As discussed, that is not a matter relevant to my consideration. Both parents are equally obliged to notify changes in care. If the care change is notified within 28 days of when it occurred, pursuant to paragraph 54F(3)(b), there are differential dates of effect for any changes. The new percentage of care for the person whose care decreases applies from the date of the care change but the new percentage of care for the person whose care increases does not apply until the date of notification.

The 25 March 2022 change in care

  1. Pursuant to paragraph 54F(3)(b), revocation of the existing percentage of care of 86% recorded for Ms Ascroft takes effect the day before the date of the change in care, that is, on 24 March 2022, and revocation of the existing percentage of care of 14% recorded for Mr Skaife takes effect the day before the date of notification of the change in care, that is, 22 April 2024.

  2. Pursuant to section 54B, new percentage of care determinations apply from the application day, that is, the day immediately after revocation of the previous percentage of care determinations. Therefore, a new percentage of care determination of 72% for Ms Ascroft applies from 25 March 2022 and a new percentage of care determination of 28% for Mr Skaife applies from 24 April 2024.

The 21 December 2023 change in care

  1. Pursuant to paragraph 54F(3)(b), revocation of the then existing percentage of care of 72% recorded for Ms Ascroft takes effect the day before the date of the change in care, that is, on 20 December 2023, and revocation of the then existing percentage of care of 28% recorded for Mr Skaife takes effect the day before the date of notification of the change in care, that is, 23 April 2024.

  2. Pursuant to section 54B, new percentage of care determinations apply from the application day, that is, the day immediately after revocation of the previous percentage of care determinations. Therefore, a new percentage of care determination of 67% for Ms Ascroft applies from 21 December 2023 and a new percentage of care determination of 33% for Mr Skaife applies from 24 April 2024.

Issue 4: What is the date of effect of the Tribunal’s decision?

  1. If an application to the Tribunal is made more than 28 days after the notice of the objection decision was served upon the person, and the Tribunal’s decision is to vary or substitute a decision, as is the case here, the Tribunal’s decision only takes effect from the day the application for review was made unless there are special circumstances that prevented the application from being made within that 28-day period: subsection 95N(2) of the Registration Act.

  2. Child Support’s records show that the 2 September 2024 objection decision was sent to Ms Ascroft on that same date and was accessed online by Ms Ascroft. Ms Ascroft’s application for review was made to the Tribunal on 2 October 2024, more than 28 days after being notified of the 2 September 2024 decision. Child Support’s records show further contacts by Ms Ascroft with Child Support on 3 September 2024 and 19 September 2024. The record of Ms Ascroft’s contact on 19 September 2024 shows that Ms Ascroft was advised on that date that even though she disagreed with the basis for the objection decision Child Support could not make a further decision and the next step was to lodge an application with the Tribunal. The records show that there was also discussion on that date of what was accepted as being a further care change notification by Ms Ascroft on 3 September 2024 (see paragraphs 6 and 9 of these Reasons). It is not clear why Child Support proceeded to treat the 3 September 2024 contact by Ms Ascroft as a further change in care notification given that the underlying issue as to what care was occurring was already the subject of the objection decision. In any event, I am satisfied that there was conflation of Ms Ascroft’s wish to seek review of the objection decision and a further care notification being actioned such that there are special circumstances that prevented the application to the Tribunal from being made within 28 days after the notice of the objection decision was given to Ms Ascroft such that the reference to 28 days in paragraph 95N(1)(b) of the Registration Act is a reference to a longer period up to 3 October 2024.

SUMMARY

  1. Given the late notification of the changes in care that occurred, the percentages of care for each parent from time to time will not always add up to 100%. Although Ms Ascroft’s decreased care applies from when it occurs, Mr Skaife’ increased care does not apply until the date of notification. In summary, the following percentages of care apply:

Percentage of care applying for Ms Ascroft Percentage of care applying for Mr Skaife
Up until 24 March 2022 86% 14%
25 March 2022 to 20 December 2023 72% 14%
21 December 2023 to 23 April 2024 67% 14%
From 24 April 2024 67% 33%

DECISION

The Tribunal sets aside the decision under review and substitutes a new decision that, in respect of [Child 1]:

  1. the existing percentage of care determination of 86% to Ms Ascroft is revoked from 24 March 2022 and replaced with a new percentage of care determination of 72% applying from 25 March 2022;

  2. the existing percentage of care determination of 72% to Ms Ascroft is revoked from 20 December 2023 and replaced with a new percentage of care determination of 67% applying from 21 December 2023; and

  3. the existing percentage of care determination of 14% to Mr Skaife is revoked from 23 April 2024 and replaced with a new percentage of care determination of 33% applying from 24 April 2024.

The Tribunal determines pursuant to subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 that subsection 95N(1) of that Act applies in this matter as if the reference to 28 days in paragraph 95N(1)(b) was a reference to a longer period extending until 2 October 2024.

Date of hearing: Thursday 16 January 2025
Representative for the Applicant: Self-represented
Representative for the Other party: Self-represented

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MDXJ v Secretary, Department of Social Services [2020] FCA 1767
Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20
Minister for Home Affairs v G [2019] FCAFC 79