Bankes and Saltman (Child support)
[2025] ARTA 514
•14 March 2025
Bankes and Saltman (Child support) [2025] ARTA 514 (14 March 2025)
Applicant/s: Mr Bankes
Respondent: Child Support Registrar
Other Parties: Ms Saltman
Tribunal Number: 2024/BC028716
Tribunal: Member S Letch
Place:Brisbane
Date:14 March 2025
Corrigendum date: 14 March 2025
Corrigendum
Pursuant to section 114 of the Administrative Review Tribunal Act 2024, the following alteration is made to the decision:
The decision is altered to read:
The Tribunal varies the decision under review so that care for [the child] is to be recorded as 38% to Mr Bankes and 62% to Ms Saltman from 15 January 2024 (not 31 January 2024).
Applicant: Mr Bankes
Respondent: Child Support Registrar
Other Parties: Ms Saltman
Tribunal Number: 2024/BC028716
Tribunal:Member S Letch
Place:Brisbane
Date:13 March 2025
Decision:The Tribunal varies the decision under review so that care for [the child] is to be recorded as 38% to Mr Bankes and 72% to Ms Saltman from 15 January 2024 (not 31 January 2024).
CATCHWORDS
CHILD SUPPORT – percentage of care – court order – change of care pattern to begin when father relocates – time spent with father before relocating in accordance with existing pattern – decision under review varied
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
Mr Bankes and Ms Saltman are the parents of [the child]. This matter concerns a decision by Child Support about her recorded care.
It is convenient by way of background to set out some extracts from the objections officer’s decision dated 23 September 2024:
…
The outcome of this decision is that it has been disallowed.
We have made the decision to reflect the care of [the child] as 38% to Mr Bankes and 62% to Ms Saltman from 31 January 2024.
…
WE CONSIDERED THE FOLLOWING EVIDENCE IN THE DECISION
Mr Bankes and Ms Saltman have had a registered child support assessment for [the child] since 22 October 2012.
Prior to the decision under review, the care for [the child] was recorded as 24% to Mr Bankes and 76% to Ms Saltman from 15 March 2019, notified on 18 March 2019.
On 12 January 2024, Mr Bankes notified a care change for [the child] to reflect he has 5 nights per fortnight and half of school holidays from 30 December 2023. Mr Bankes advised the change occurred in line with a court order made on 27 November 2023.
…
On objection, both parents confirmed [the child] s actual care is in line with the court order made in the Federal Circuit and Family Court of Australia. Final consent order was dated 27 November 2023.
As per paragraph 5(a) of the above-mentioned court order, we confirmed until such time Mr Bankes relocates his residence to Metropolitan Brisbane, [the child] spends half of the school holidays with Mr Bankes.
Paragraph 6(a) states upon Mr Bankes residing in Metropolitan Brisbane, [the child] spends each alternate weekend from after school Wednesday with Mr Bankes until before school Monday (or Tuesday from the commencement of school if Monday is a non-school day).
Paragraph 6(c) however, states in the event that Mr Bankes does not reside in Metropolitan Brisbane, times pursuant to paragraph 5 shall apply.
Paragraph 12 of the court order outlines exchange of information. Paragraph 12(a) states that parents shall keep each other informed at all times of their residential address and notify each other of any changes at least 48 hours prior to same.
…
Upon review of the information available to us, both parents did not seem to disagree with [the child] s commencement of her school holiday in line with [College] Brisbane, being 30 December 2023. However, we did not receive evidence to suggest that there had been exchange of information between parents by email or text/SMS stating Mr Bankes does not reside in Metropolitan Brisbane for paragraph 5 of the order to apply.
We have therefore made a decision to continue to reflect the care of [the child] as 38% to Mr Bankes and 62% to Ms Saltman from 31 January 2024.
The objection is disallowed.
…
Mr Bankes attended the hearing in person; Ms Saltman participated by conference telephone.
Mr Bankes’ position is summarised in his written application to the Tribunal:
The care percentage has ignored care the applicant had with the child from 30 Dec 2023 to 21 Jan 2024. This care was ignored in the considerations by the CSA when applied for by phone on 12 Jan 2024.
The CSA claim the other party challenged the care percentage on 7 Feb 2024, she claims the new care did not come into effect until quoted paragraphs of the orders that were provided to CSA were met. The paragraphs referred to (5,12 and 15) 5 only refers to the child spending time with the applicant for half the holidays until he moves to Metro Brisbane. 12 is a broad paragraph directing the parties on the exchange of information regarding change of address, medical practitioners and medical conditions, private health cover and the family report compiled on 20 Jul 2023. None of this order refers to this as being a condition of care of the child or a prerequisite. 15 is irrelevant to this matter as it governs communications between the parties. CSA in its decision appeared to rely on this and e-mails in regards to this. On of these e-mails had been provided by the applicant to draw attention to the likely lack of cooperation by the other party.
Of note, CSA sent a letter dated 28 May in regard to care arrangements and it acknowledges the care started from 30 Dec 2023 as claimed by the applicant in his phone call of 12 Jan 2024. in the letter of 23 Sep 2024 CSA opines the care could not be changed as there was no increase in care until the already established half of the holidays was changed by the introduction of the fortnightly five nights of contact between the child and the applicant effective from the start of school in 2024. The applicant has a perception the 22 nights of care he had with the child from 30 Dec 2023 to 21 Jan 2024 were 'thrown out of the window' and therefore not considered for factors such as cost of child support and so on.
This is the crux of the objection that was subsequently rejected by the CSA and is the subject of this application.
In short, Ms Saltman agrees with the decision made by Child Support.
Application of the law
Care percentage determinations are governed by Subdivision B of Division 3 of Part 5 of the Child Support (Assessment) Act 1989. In very simple terms, if there is a change in the pattern, or likely pattern, of care, an existing determination is revoked and replaced by a new determination.
I am looking at the matter afresh. In my assessment, the terms of the Court Order of 27 November 2023 provide a complete answer to the issues in this review.
The Order specifies that [the child] was to live with her mother (paragraph 4). Paragraph 5 stipulates that until Mr Bankes moved to Brisbane (which he confirmed occurred on 15 January 2024), Mr Bankes’ care was specified to be only half the school holidays and otherwise by telephone or agreement (in other words, much less than his recorded care of 24% at the time). Paragraph 6 specifies the arrangement when Mr Bankes arrived in Brisbane; those arrangements increase Mr Bankes’ care to 38%.
Mr Bankes confirmed during the hearing that [the child] flew interstate to stay with him on 30 December 2023. He subsequently arrived in Brisbane on 15 January 2024.
It seems to me that the terms of the Court Order are very clear. On a plain reading of those terms, I am satisfied that the arrangement specified in paragraph 6 of the Order did not take effect until 15 January 2024. Mr Bankes’ pattern of care should be recorded as increasing from 15 January 2024 in accordance with those Orders.
I therefore find that the existing care percentages (giving Mr Bankes 24% and Ms Saltman 76%) should be revoked and that new care percentages be substituted from 15 January 2024.
As this is a different conclusion to the authorised review officer, the decision under review will be varied.
DECISION
The Tribunal varies the decision under review so that care for [the child] is to be recorded as 38% to Mr Bankes and 72% to Ms Saltman from 15 January 2024 (not 31 January 2024).
| Date of hearing: | Wednesday 19 February 2025 |
| Representative for the Applicant: | Self-represented |
| Representative for the Other Party: | Self-represented |
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