BDPK and Child Support Registrar (Child support second review)

This matter concerned a second review of a child support percentage of care determination between BDPK and the Child Support Registrar, with QFMJ also involved in the dispute. The core of the disagreement lay in determining the correct percentage of care for Child B, particularly in light of the child’s attendance at boarding school and the appropriate treatment of time not spent with either parent. The review was heard by J Rau Sc SM.

The court was required to determine the extent to which each parent had care of Child B, considering the specific criteria for calculating care percentages under the relevant legislation. This involved assessing how to account for periods when the child was not physically with either parent, such as during boarding school, and how this impacted the overall calculation of nights in each parent's care. The court also needed to consider the principles established in cases like *Polec v Staker* regarding the broader factors relevant to assessing parental care beyond mere physical presence.

In its reasoning, the court acknowledged that while the *Child Support (Assessment) Act 1989* (Cth) generally requires care to be worked out using the number of nights, this method may not always accurately reflect the reality of care, especially when a child lives separately from both parents. Applying the principles from *Polec v Staker*, the court considered the extent to which each parent met the child's needs, including accommodation, financial support, emotional support, and making arrangements for the child's needs to be met. The court found that both parents had continued to provide parental and financial support to the child, even with the added complexity of boarding school.

Consequently, the court set aside the existing percentage care determination. A new determination was made, revoking the existing percentage care for BDPK from 26 January 2021 and replacing it with 35% care from 27 January 2021. Similarly, the existing percentage care determination for QFMJ was revoked from 12 January 2022 and replaced with 65% care from 13 January 2022.