Broom and Marnham (Child support)

[2025] ARTA 244

Broom and Marnham (Child support) [2025] ARTA 244 (17 January 2025)

Applicant/s:  Mr Broom

Respondent:  Child Support Registrar    

Other Parties:       Miss Marnham

Tribunal Number:   2024/SC028619 

Tribunal:  Senior Member A Suthers

Place:Sydney

Date:17 January 2025

Decision:The decision under review is set aside and, in substitution:

The objection lodged by Mr Broom on 25 March 2024 is allowed and the parties’ respective percentages of care will be recorded as 42% to Mr Broom and 58% to Miss Marnham, applying in the assessment on and from 27 September 2024.

CATCHWORDS 

CHILD SUPPORT – percentage of care – the objection lodged by Mr Broom is allowed – a new pattern of care commenced – parties’ respective percentages of care will be changed – 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

SUMMARY

1.The Child Support (Assessment) Act 1989 (the Act) provides for Services Australia – Child Support (Child Support), to make an administrative assessment of child support. Child Support does so by reference to the relevant legislation and to the ‘Child Support Guide’ (the Guide) published by the Australian Government where relevant. The Guide contains governmental guidelines and statements of policy as to how the relevant legislation is to be applied.

2.Under sections 25 and 25A of the Act, subject to certain conditions that are not controversial here, a parent or non-parent carer of a relevant child may apply for an administrative assessment. If the relevant conditions are met, Child Support must make the assessment using a formula containing variables such as the parents’ (or non-parent carer’s) adjusted taxable incomes and the respective percentages of care the parties to the assessment have provided, or are likely to provide for each relevant child, in the ‘care period’ that Child Support considers is appropriate to consider.

3.Child Support usually considers a care period of 12 months from when the actual pattern of care of a child began or changed: subparagraph 50(1)(b)(ii) of the Act and section 2.2.1 of the Guide. If the assessment is made before the end of the care period, Child Support must make a partially forward-looking judgment as to the care of each relevant child a party to the assessment is likely to provide over the period.

4.In doing so, Child Support considers whether a party to the assessment has had, or is likely to have, a ‘pattern of care’ for the child during the care period. The pattern of care informs the assessment of the ‘percentage of care’ used in the formula. The pattern and percentage of care will commonly be determined by reference to the number of nights each child spends in the care of each party to the assessment: section 54A of the Act and section 2.2.1 of the Guide.

5.Once an assessment of the percentage of care is made and applied in the formula, Child Support continues using that percentage of care until it is informed that an anticipated pattern of care did not eventuate, or that it did eventuate but subsequently changed.

6.Mr Broom and Miss Marnham are the parents of [Child 1], who is 3 years old.

7.On 11 December 2023, Miss Marnham sought an administrative assessment for [Child 1], advising that the parties separated and a new pattern of care for [Child 1] commenced from 22 April 2023. She provided Child Support with information about the pattern of care for [Child 1].

8.On 27 January 2024, Child Support made a decision to assign percentages of care for use in the assessment of 28% to Mr Broom and 72% to Miss Marnham, respectively. Child support accepted that the pattern of care commenced on 22 April 2023, but the percentages of care can only apply in the assessment on and from the application day: sections 31 and 54B of the Act. That is 11 December 2023 in this case.

9.The decision was made despite Mr Broom’ advice that he provided [Child 1] with care for six nights in each fortnight, and therefore 150 nights per year, or 42%.

10.The Child Support (Registration and Collection) Act1988 (the R&C Act) provides that the parties to the assessment may lodge an objection to a care percentage decision by Child Support that informs the assessment and for certain persons to be able to seek review of the decision on the objection by application to the Tribunal.

11.That has occurred here. An objections officer considered an objection lodged by Mr Broom on 25 March 2024 (which was not within the prescribed time to do so), and on 7 July 2024 disallowed the objection, thereby affirming the original decision.

12.On 27 September 2024, Mr Broom lodged an application for review of the objection officer’s decision (which, again, was not within the prescribed time to do so). That is the application before me.

13.I heard the matter on 16 January 2025 and heard evidence and submissions from Mr Broom and Miss Marnham. Child Support elected not to participate in the hearing.

14.I also had regard to the documents lodged in the application, as follows:

·     64 numbered pages lodged by Child Support.

15.It is not in dispute that both parties to the assessment have an established ‘pattern of care’ (as described in the Act), in that they are both providing some care to [Child 1]. I am satisfied that is the case.

16.In brief, the parties’ respective positions are that:

(a)   Mr Broom says that he has always provided six nights care to [Child 1] each fortnight. The current pattern is that he provides care to [Child 1] on Monday, Tuesday, Friday, Saturday and Sunday in the first week, and Monday night the following week, in a fortnightly roster. He confirms that [Child 1] is in Miss Marnham’s care for the rest of the time; however

(b)   whilst Miss Marnham confirmed that pattern of care is correct, she alleged, for the first time at the hearing, that Mr Broom’ mother provides some of the care for [Child 1] at those times, rather than Mr Broom.

17.For the following reasons, I will set aside Child Support’s decision on the objection and record the percentages of care for [Child 1] as 42% to Mr Broom and 58% of care to Miss Marnham. However, that will only apply in the assessment from 27 September 2024.

Summary of the law, relevant policy, and the issues to be determined

18.As this is a ‘statement of reasons’ I am required, amongst other things, to explain the reasons for the decision. To do so, it is necessary to set out, to an extent, the law and relevant policy to be considered.

19.On 14 October 2024 the Administrative Appeals Tribunal (AAT), to which this application was initially brought, was replaced by the Administrative Review Tribunal (the Tribunal). An application for review by the AAT that was not finalised before 14 October 2024 is taken to be an application for review by the Tribunal, and the Tribunal has the authority to continue and finalise any aspect of the review that was not completed by the AAT: Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024.

20.I have jurisdiction and power to conduct this review due to the combined effect of sections 80A, 87 and item 2 of the table in section 89 of the R&C Act, read with sections 12 and 105 of the Administrative Review Tribunal Act 2024 (the ART Act).

21.In conducting the review, I may also have regard to the Guide where relevant, so long as what it contains is lawful and does not purport to control my decision. However, I am not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; G v MIBP [2018] FCA 1229.

22.Whilst the parties’ respective percentages of care may, and commonly will, be assessed based on the respective nights [Child 1] spends in their care, that is not mandatory. If a more appropriate basis for assessment of that issue is identified and is based on permissible considerations, it may be used: P v Child Support Registrar [2014] FCAFC 98.

23.If the percentage of care assessed is not a whole percentage, the percentage assessed is rounded down to the nearest whole number if it is lower than 50%, and up to the nearest whole number if it is higher than 50%: section 54D of the Act.

24.In reviewing the care percentage determinations, the relevant care period is such period as I consider to be appropriate having regard to all the circumstances: subparagraph 50(1)(b)(ii) of the Act. Whilst section 2.2.1 of the Guide provides that a care period is generally assumed to apply for the subsequent 12-month period from when the actual care of a child began or changed, a different care period may be appropriate depending upon the circumstances of the case.

25.The date of effect of the redetermined percentages of care in the assessment may be affected by:

(1) whether the objection was lodged within 28 days of the original decision: section 87AA of the R&C Act; and

(2) whether the application to the Tribunal was made within 28 days of the objection officer’s decision: section 95N of the R&C Act.

unless special circumstances prevented the lodgment of the objection or the application for review in time: sections 87AA and 95N of the R&C Act.

26.I am to review all the evidence before me (from whatever source), determine the relevant facts (including by resolving any disputed assertions of the parties that need be determined), and independently decide what care percentages should be applied in the formula.

Mr Broom’ evidence

27.Mr Broom’ oral evidence was similar to that outlined above. In response to the new allegations by Miss Marnham, he acknowledges that his mother provides some of the day-to-day care for [Child 1] whilst she is in his care. He says that is because he works, and so his mother assists in ways such as dropping [Child 1] off to day care. He lives with his mother, although he and [Child 1] sometimes stay separately with his father, and he says he takes responsibility for cooking for [Child 1] and her other routine care tasks. To the extent that Miss Marnham says she communicates with his mother instead of him about [Child 1], he says that is because he and Miss Marnham have not historically communicated well, although he claims that is improving. He says Miss Marnham asked that communication be through his mother as a result. He also says that Miss Marnham’s work may be considered more flexible and so his mother may feel that it is easier to contact Miss Marnham. He says his mother defers to him about major decisions in respect of [Child 1] and notes that Miss Marnham relies on her own mother to assist with [Child 1]’s care.

28.Mr Broom acknowledges that there were no special circumstances that prevented him lodging his objection or application for review in time.

29.In support of his position, Mr Broom relies on a statement from his mother, Ms Broom, which confirms the pattern of care and relevantly states that ‘[Mr Broom] cares for [[Child 1]] every … at our family home.’ 

Miss Marnham’s evidence

30.Miss Marnham’s oral evidence about the extent to which Ms Broom is actually responsible for [Child 1]’s care was that Ms Broom usually drops [Child 1] off to day care and will often communicate with her for advice, for example if [Child 1] is unsettled and Ms Broom is contemplating keeping [Child 1] home. She claims that Ms Broom has told her that she (Ms Broom) is reluctant to contact Mr Broom in such circumstances as she does not know how to word things to avoid starting a disagreement with him.

31.Miss Marnham says she has tried recently to renegotiate the way [Child 1]’s care is shared with Mr Broom but has been unsuccessful.

Assessing the evidence as to the pattern of care for [Child 1]

32.The Tribunal acts in an inquisitorial fashion and is not bound by the rules of evidence: section 52 of the ART Act. There is no legal onus of proof on a party where no such onus is imported by the referring legislation. However, the Tribunal’s inquisitorial role does not mean that a party can simply present what are said to be facts and leave it to the Tribunal to search out the truth of any and all allegations, in effect shifting the burden of providing the evidence in support of their position to the Tribunal. Rather, the Tribunal’s role is to respond to the case that the party advances: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389; at [78].

33.In considering the evidence before it, the Tribunal needs to reach its conclusions based on ‘rationally probative evidence’ rather than mere ‘suspicion or speculation’: Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666 at 685.

34.The evidence produced by the parties ‘is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted’: Coshott v Prentice [2014] FCAFC 88; (2014) 221 FCR 450 at [80], quoting Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970.

What percentages of care should be attributed to the mother and father in respect of [Child 1]?

35.I am satisfied that the appropriate care period to consider is for the 12 months from 22 April 2023. As that period has passed, I can assess the actual pattern of care that occurred.

36.I am satisfied that [Child 1] went to Mr Broom for 6 nights each fortnight in that period, and that a ‘nights in care’ assessment is appropriate. For the balance of the time, [Child 1] was in Miss Marnham’s care. The only remaining issue is whether it was Mr Broom or Ms Broom providing care to [Child 1] when she went to Mr Broom.

37.Child Support recognises that there is a distinction between a non-party providing care, and otherwise providing ‘delegated care’ on behalf of a party.

38.Section 2.2.1 of the Guide states, relevantly:

However, a person who simply supervises the child (for example, a babysitter, a child minder such as a grandparent or a schoolteacher) does not provide care. Consideration is given to who has responsibility for making arrangements for, and decisions about, the child’s welfare, as well as who is meeting the child’s costs, rather than just the accommodation arrangements themselves. The Registrar will give weight to statements from both parents and any non-parent carers.

39.That has also been recognised on review. For example, in NLBD v Child Support Registrar [2020] AATA 35 at [33] the former AAT stated:

The question of what constitutes delegated care in such a context is a question of fact, to be determined for each day where such care is provided. This involves a number of factors, including who made the arrangements for the delegate care, which parent had responsibility for the child under the care arrangement, whether any financial support is provided by the delegated carer, and the frequency of the delegated care arrangements.

40.I agree with those comments.

41.I am not persuaded that it is Ms Broom who provides care for [Child 1] when she goes to Mr Broom. That assertion is inconsistent with Ms Broom’ statement and with Miss Marnham’s own evidence that it is Mr Broom who she tries to renegotiate [Child 1]’s care with.

42.I am also inclined to give less weight to Miss Marnham’s evidence in that regard when it was raised late, and in a manner that effectively prevented it being put to Ms Broom for comment.

43.I am satisfied that the appropriate percentages of care should be assessed as 42% to Mr Broom and 58% to Miss Marnham, based on 150 of 365 nights in the year that [Child 1] spent in Mr Broom’ care, with the necessary rounding required by section 54D of the Act.

From what date should those percentages of care apply in the administrative assessment?

44.As I am not satisfied that there were special circumstances that prevented Mr Broom lodging his application for review in time, my decision is taken to have had effect on and from the day the application for review was made: section 95N of the R&C Act. That was 27 September 2024.

45.Had that not been the case, the date of effect would otherwise have been impacted on by Mr Broom’ late lodgment of his objection, as there were, similarly, no special circumstances that prevented it being lodged in time: section 87AA of the R&C Act.

DECISION

The decision under review is set aside and, in substitution:

The objection lodged by Mr Broom on 25 March 2024 is allowed and the parties’ respective percentages of care will be recorded as 42% to Mr Broom and 58% to Miss Marnham, applying in the assessment on and from 27 September 2024.

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