BKCZ and Child Support Registrar (Child support second review)

This matter concerned a review of a decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal, remitted from the Federal Court of Australia. The dispute involved separated parents, BKCZ (the Applicant/Mother) and HBVN (the Other Party/Father), regarding the percentage of care for their two children, born in 2006 and 2007. Existing parenting orders stipulated that the children primarily resided with the Applicant, with the Other Party having specific periods of care. A change in care arrangements occurred in March 2020 due to COVID-19 border closures, preventing the children from travelling to Western Australia for school holidays.

The primary legal issues before the Tribunal were whether a change in the pattern of care had taken place from 22 March 2020, and consequently, whether the existing percentage of care determinations should be revoked. The Tribunal was required to consider the impact of the COVID-19 pandemic on the agreed care arrangements and to determine the actual care arrangements in light of the circumstances. The Tribunal was also bound by the orders of the Federal Court on remittal.

The Tribunal found that a change in the pattern of care occurred from 22 March 2020, when both parents mutually agreed that the children would not travel to Western Australia for the Term 1 school holidays due to border closures. The Tribunal considered the relevant provisions of the Assessment Act, specifically sections 54G, 54F, and 54H, concerning the revocation of care determinations. It was satisfied that the existing care percentage determinations were made under section 50 of the Assessment Act, which deals with situations where a responsible person has had a pattern of care. The Tribunal accepted the Applicant's evidence that she had care of the children for the entirety of 2020 due to the pandemic, travel restrictions, and quarantine reasons, and that the Other Party had not advanced claims for make-up time at the hearing.

The Tribunal set aside the original decision and substituted a new percentage of care determination, reflecting the actual care arrangements during the relevant period.