Cezil and Roseaman (Child support)
[2025] ARTA 958
•22 May 2025
Cezil and Roseaman (Child support) [2025] ARTA 958 (22 May 2025)
Applicant: Mr Cezil
Respondent: Child Support Registrar
Other Parties: Ms Roseaman
Tribunal Numbers: 2024/SC028672, 2024/SC029077
Tribunal: General Member A Shelley
Place: Canberra
Date: 22 May 2025
Decision:
2024/SC028672
The Tribunal sets aside the decision under review and, in substitution, decides that:
The existing percentages of care are revoked under subsection 54H(1) of the Child Support (Assessment) Act 1989,
In accordance with subsection 54H(2), the revocation takes effect on 27 March 2024,
Under subsection 50(2), the percentages of care for [Child 1] are 12% for Mr Cezil and 88% for Ms Roseaman, and the percentages of care for [Child 2] are 10% for Mr Cezil and 90% for Ms Roseaman, from 28 March 2024.
2024/SC029077
The Tribunal sets aside the decision under review and in substitution decides that the cost of glasses purchased for [Child 1] in May 2024 should not be credited as a non-agency payment.
CATCHWORDS
CHILD SUPPORT – percentage of care – change to the likely pattern of care – existing percentage of care determinations revoked – new determinations made – period of one parent’s overseas holiday – non-agency payment – 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 201(1A) of the Social Security (Administration) Act 1999.
Statement of Reasons
BACKGROUND
Mr Cezil and Ms Roseaman are the parents of 2 children, [Child 1] (born in 2010) and [Child 2] (born in 2012), in respect of whom a child support assessment has been in place since 30 January 2022.
This review is about two things:
· in application 2024/SC028672, the percentage of care for each parent that applies in relation to the administrative assessment of child support for the children (the care percentage matter), and
· in application 2024/SC029077, whether the amount paid by Mr Cezil for new glasses, for one of the children, can be credited to his child support liability (the non-agency payment matter).
As to the care percentage matter, on 28 March 2024, Mr Cezil notified Services Australia (Child Support) of a change of care for the children. On 20 May 2024 Child Support determined that for both children the care was 92% to Ms Roseaman and 8% to Mr Cezil, from 13 November 2023, implicitly revoking an earlier assessment of 100% and 0% respectively.
The following day, Mr Cezil contacted Child Support, objecting to the decision.
The objection was partly allowed. The objection decision dated 3 September 2024 maintained the decision to reflect care of [Child 2] of 92% and 8% (respectively) but found that the care of [Child 1] was 93% and 7% (respectively). That decision was notified to the parties under cover of letter dated 4 October 2024.
As to the non-agency payment matter, Mr Cezil purchased glasses for [Child 1] in May 2024. On 29 May 2024, he reported the amount as a non-agency payment. On 24 June 2024, Child Support credited $73 of that amount as a non-agency payment and determined that $177 (though as will appear that figure is wrong) was not accepted as a non-agency payment.
On 14 July 2024, Mr Cezil objected to the decision.
The objection decision dated 2 September 2024 affirmed the decision.
On 10 October 2024, Mr Cezil applied to the Tribunal for review of both objection decisions. In relation to the non-agency payment matter, he filed the application more than 28 days after receiving the decision. On 23 December 2024, the Tribunal made a decision to extend the time in which Mr Cezil could bring the application.
The two applications proceeded to hearing on 8 April 2025. I had before me:
· the hearing papers for the care percentage matter, numbered 1 to 238, and
· the hearing papers for the non-agency payment matter, numbered 1 to 159.
I also referred to a decision made by the former Administrative Appeals Tribunal (AAT) on 14 March 2024 (2023/SC027164) which tangentially relates to the non-agency payment matter.
Following the hearing, I received an updated calendar from Mr Cezil, and Ms Roseaman’s response.
ISSUES
The legislation relevant to the two applications is contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the R&C Act).
Percentage of care determinations are made under section 49 and/or section 50 of the Assessment Act.
Section 49 provides authority to make a determination in circumstances where a parent has no care of the child. That does not apply. Section 50 provides authority to make a determination of a percentage of care in situations where a person has a pattern of care. Where the Child Support Registrar is satisfied that a responsible person has had, or is likely to have, a pattern of care for the child during the relevant care period, the Registrar must determine that person’s percentage of care for the child during the care period. The percentage determined must be the percentage that corresponds with the actual care of the child that the Registrar is satisfied the responsible person has had, or is likely to have, during the relevant care period.
In the care percentage matter, the issues that arise are:
· What is the relevant care period in which to assess the care arrangements of the children, and what are the care arrangements in that relevant care period?
· What is the percentage of care for each parent?
· From what date should the percentage of care apply?
The R&C Act allows some payments, known as non-agency payments or prescribed non-agency payments, to be made in lieu of child support.
The sole issue in the non-agency payment matter is whether expenditure on glasses is a non-agency payment.
I have addressed the 4 issues in turn, then made some concluding comments.
CONSIDERATION
What is the relevant care period, and what are the care arrangements in that period?
The Assessment Act provides that the care percentage for a child must be determined for a ‘care period’ which is essentially defined as ‘…such period…as the Registrar considers to be appropriate having regard to all of the circumstances’. Usually (but not necessarily) the care period will be a 12-month period starting from the date the care of the child changed and reflecting the actual care that a person has, or is likely to have, during the care period.
Up to November 2023, the care percentage was recorded as 100% to Ms Roseaman and 0% to Mr Cezil.
On 13 November 2023, Mr Cezil started to record the time he was in contact with either of the children. On 28 March 2024, he contacted Child Support to advise of a change of care arrangement from that time (though his letter says 12 November 2023), based on his record.
Consistent with a change to care arrangements occurring at that time, a court order was made [in] November 2023 which provides that Mr Cezil would have care from 31 December 2023 to 5 January 2024, every Tuesday from 5pm to 8pm, and on Sundays, during school holidays and at any other time ‘as agreed between the children and the father’.
Mr Cezil says that the finding of 7% and 8% care (for the 2 children, respectively) is inconsistent with his calendar. In part, that is because the objection decision contains a factual error, where the version of Mr Cezil’s record relied upon by the decision maker displays dates in the MM/DD/YYYY format, and some of these were misread as DD/MM/YYYY.
For her part, Ms Roseaman says the objection decision is right, or at least more or less right where there has never been a consistent pattern of care.
Mr Cezil said that the only consistent period was the Tuesday. He expects to see the children every other weekend, but it is not formalised or consistent. A new court order had been made in the days before the hearing (which is not in evidence) – in that, everything is subject to the wishes of the children, though Tuesday evening is to continue.
There are a number of versions of Mr Cezil’s calendar, the most thorough of which was filed after the hearing. It is not a record of care, exactly, but a record of contact. That is, it includes episodes of care but also much more minor and even incidental contact, sometimes for just 10 minutes.
Notably, Mr Cezil, Ms Roseaman and Ms Roseaman’s father (who often sees the children) all live close by one another and the children are old enough to move between the houses of their own volition. Ms Roseaman is generally responsible for the cost of raising the children (when they are not with Mr Cezil), except as agreed and except for private health insurance (which is relevant to the non-agency payment matter).
Ms Roseaman has not kept her own record of care. She accepts Mr Cezil’s calendar as accurate, save that:
· it is to be understood as a record of contact, not necessarily a record of care, and
· there is a period reflected in the calendar which she does not accept to be accurate, at least without explanation. I will return to that in connection with the next issue.
Consistent with the evidence of both Mr Cezil and Ms Roseaman, the calendar reveals that Mr Cezil typically has care of the children on Thursdays. Contact on Thursdays and weekends is also common.
I am satisfied that the care arrangements changed on (or at least close to) 13 November 2023. There is a pattern of care by each parent, even if the actual time in care varies week to week, including Tuesday afternoon and often weekends as agreed. The care period should start on that day. As to its duration, I can see no compelling reason to depart from the usual proposition that the relevant care period is a period of 12 months from that date. There is nothing in the court order, for example, or in either party’s evidence that suggests that a different impression of the care arrangements would be formed with a shorter or longer period.
I note that although I have decided that a 12-month care period is appropriate for the purposes of assessing the care percentage, the care percentage will apply until a change of care is notified as having occurred, which could be on a date earlier or later than the 12 months.
What is the care percentage for each parent?
Section 54A of the Assessment Act provides that the Registrar may assess the level of care on the number of nights that a parent has during a care period.
The Australian Government has published policy guidance for the purposes of interpreting and applying the child support law in its Child Support Guide. The Tribunal is not bound to apply government guidelines but will usually do so unless there are cogent reasons not to.[1]
[1] Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179.
As to whether the use of nights to assess care is appropriate, the Child Support Guide says:[2]
Generally, the number of nights a person cares for a child will be the best measure of their percentage of care. However, there may be some occasions where only counting the nights in care does not accurately reflect the caring arrangements for the child. For example, one parent may provide care every night while the other parent provides care from 8 am to 6 pm every weekday.
In such cases, the Registrar may calculate the number of hours of care for each carer in determining the pattern of care and convert that into a care percentage. The Registrar will take into account the information from each parent or non-parent carer about the care they provide and why they think nights or hours is the better measure of care.
Example: Camryn and Capricia have one child Viktor. Camryn works night shifts and so can only provide care for Viktor during the daytime. Camryn cares for Viktor for 45 hours per week while Capricia cares for Viktor every night. A percentage of care based on nights would not properly reflect the parents' care arrangements for Viktor and the Registrar would therefore determine the percentages of care based on the hours that each parent provides care for Viktor.
Example: Albert and Daria have one child, Ahmed. Albert has 98% care of Ahmed and Daria has 2% care based on the number of nights care over a 12-month care period. During the 12-month care period, Ahmed stays 7 Saturday nights (from 4 pm Saturday to 12 noon on Sunday) with Daria and the rest of the nights with Albert. Daria works night shifts and takes care of Ahmed every weekday from 8 am until Albert returns from work at 6 pm. This occurs for 40 weeks over 12 months. Daria requests that their care percentage be calculated using hourly care. …
Even where a determination based on the hours of care that a person provides might result in a different percentage of care to a determination based on the nights of care, it may still be more appropriate to use nights of care as the best measure of care that the person provides.
If a person has some overnight care and a small amount of additional 'daytime' care that is not associated with an overnight stay, it may still be more appropriate to use a care percentage calculation based on nights. A decision as to whether nights are an appropriate basis for a care percentage determination will depend on the particular circumstances of the case.
Example: Leif and Kayley have 2 children, Emmett and Matti, who live mainly with Leif. Kayley has care of the children every second Friday and Saturday night and some school holidays. Kayley also picks the children up from school on Wednesdays, takes them to soccer and has dinner with them, before dropping them back to Leif's house for the night. As the daytime care Kayley provides each Wednesday does not significantly affect the care arrangements, it is appropriate to base the percentages of care on the nights of care that each parent has of the children.
[2] At 2.2.1.
One reason that nights are generally appropriate is that assessment on that basis avoids a problem Mr Cezil brought up at the hearing: quite often the children are at school (or elsewhere) and neither parent has care in an immediate sense.
Nonetheless, in Mr Cezil’s submission, the assessment should be made by reference to time in care and not by nights. He has the children relatively few nights (and is not guaranteed any nights pursuant to the court order) and so that approach minimises the time he has had care.
He points out that the approach taken in the objection decision incentivises Ms Roseaman to discourage the children from seeing him. Whether or not that occurs in fact, because the Tribunal’s role is to determine the appropriate percentages of care based on the pattern of care actually or likely to be provided, that may be unavoidable.
In my view, calculation by reference to nights in care is appropriate in this case. Mr Cezil and Ms Roseaman’s case is not dissimilar to examples in the Child Support Guide. The children mainly live with Ms Roseaman. The time Mr Cezil has care of the children during the day does not significantly affect the care arrangements, which are mainly Ms Roseaman’s responsibility.[3]
[3] See Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959 at [53] to [56].
I come, then, to determine the nights of care Ms Roseaman and Mr Cezil had in the 12-month care period from 13 November 2023 to 12 November 2024. Mr Cezil’s calendar reveals that he had both children for 36 nights, [Child 1] only for 8 nights (so 44 nights in total) and [Child 2] only for 4 nights (so 40 nights in total).
As above, there is some difficulty about one particular period, which is 25 July 2024 to 6 August 2024. In that time, Ms Roseaman was overseas. The children did not exclusively stay with Mr Cezil – on 7 out of 12 nights they stayed with Ms Roseaman’s father. Mr Cezil ‘claimed’ the whole period in earlier versions of his contact but represented the situation with more nuance in the version provided following the hearing.
For much the same reason I am satisfied that assessment by reference to nights is appropriate, I am satisfied that Mr Cezil should be taken to have care on every night in that period. The concept of ‘care’ is not so narrowly identified as time in contact. It includes having responsibility for a child and making major decisions and arrangements, and meeting their needs for accommodation, clothing, food, health care, emotional support, supervision and transport. Despite that the children were not with Mr Cezil for some of that period, I am satisfied that he was responsible for their care, as required.
It comes to this: based on nights of care, Mr Cezil had 12% care for [Child 1] and 10% care for [Child 2] in the care period (rounded down, as required by section 54D of the Assessment Act). Ms Roseaman, conversely, had 88% and 90% care, respectively.
From what date should the care percentages apply?
A new determination as to care percentages will only apply if the existing care percentage can be revoked under one of the revocation provisions in the Assessment Act, which are sections 54F, 54G and 54H. Where a revocation provision applies, it also determines the date on which the new determination takes effect.
To ascertain which, if any, of the revocation provisions apply, it is necessary to ascertain the ‘cost percentage’.
Section 55C of the Assessment Act includes a table for converting the care percentage to the cost percentage. Where the percentage of care is 0% to 14%, the cost percentage is 0%. Accordingly, both on my assessment and the assessment in the objection decision, Mr Cezil’s cost percentage is 0% for both children.
Section 54G applies only if a person was to have regular care under a care determination made under section 50, but in fact has had no care or less than regular care. That does not apply.
Section 54F applies only if there has been a change to the cost percentage. That does not apply.
Section 54H has the effect that it is discretionary as to whether a care percentage should be revoked if it does not affect the cost percentage. The Child Support Guide says:[4]
Whether the Registrar revokes an existing care percentage determination under section 54H will depend on the circumstances of the case. If a party to an assessment advises the Registrar of a change in care that would not affect the cost percentage and seeks to have the change reflected on the Register, the Registrar should revoke the existing care percentage determination if there is evidence provided by each party, or evidence which is otherwise readily available, to allow the Registrar to determine new care percentages. This helps to ensure there is an accurate record of the care history on a case. However, if a party does not agree that a change has occurred or the readily available evidence is otherwise not conclusive as to the precise care percentages, the Registrar may decide not to revoke the existing determination and conduct no further investigations. This discretion enables the Registrar to decide to not proceed with unnecessary investigations to determine precise care percentages that would not make a material difference to the assessment.
[4] At 2.2.2.
Given the presence of reliable evidence, the clear indication of a change of care in November 2023 (albeit one that does not affect the cost percentage) and the factual error in the decision under review (concerning the date format), it is appropriate to apply section 54H, revoking the previous care determination.
Subsection 54H(3) provides that if the change of care is notified by a responsible person more than 28 days after the change of care date, and that person’s change of care increased, the revocation is effective on the day before that notification.
Here, Mr Cezil notified Child Support of a change of care on 28 March 2024, more than 28 days after the change of care date, 13 November 2023.
The previous change of care will be revoked as at 27 March 2024.
Is the expenditure on glasses a non-agency payment?
Section 71A of the R&C Act relates to payments made by a person with a child support liability to a third party. Child Support must credit the amount paid against the amount payable by way of the child support liability if, amongst other things:
· either the payer or payee applies to Child Support to have the amount, or part of the amount, credited, and
· the amount, or part of the amount, was intended by both the payer and the payee to be paid in satisfaction of the child support liability.
Section 71C of the R&C Act allows for payments to be credited (up to 30% of the person’s liability) without that mutual intention if, significantly:
· the payment is of a kind specified in regulations, and
· at the time the payment is made and at the time the section is applied, the payer does not have at least regular care of the child or children to which the matter relates (where regular care, under subsection 5(2) of the Assessment Act, is at least 14% care).
Regulation 19 of the Child Support (Registration and Collection) Regulations 2018 provides that the specified payments include:
(d) fees for essential medical and dental services for that child.
Section 71D of the R&C Act creates a discretionary power for Child Support to refuse to credit a payment under section 71A or section 71C.
The Child Support Guide includes information to assist in interpreting regulation 19.[5] In relation to medical and dental services it says:
Essential medical and dental services are not limited to those services provided in an emergency.
A payer can claim only their actual costs. The Registrar will credit only the net amount after any rebate the person can claim from Medicare or a health insurance fund.
Prescribed payments include essential consultation fees for services provided by medical and dental practitioners, treatment by specialists, eye testing, X-rays, pathology tests, examinations and certain 'out-of-hospital' surgical procedures by Medicare approved practitioners. The cost of medication associated with essential treatment is also included, as well as equipment such as crutches or a vaporiser.
Prescribed payments include 'in-hospital' costs either as a public patient, or as a private patient in a public or private hospital. Costs can include accommodation and items such as theatre fees, anaesthetist costs, pathology, X-rays and medicines.
Prescribed payments may also include fees for medical or dental services not covered by Medicare, if they are essential for the child in the opinion of a practitioner approved by private health funds. These services include:
…
optometry and repairs
…
The Registrar will not allow a credit for fees for surgery or dentistry performed solely for cosmetic reasons. Where there is doubt, a parent can ask the service provider for more information.
[5] At 7.5.2.
The actual payment in issue in the non-agency payment matter was a source of some confusion in the hearing because of multiple, similar payments. The objection decision is also internally inconsistent.
On 9 May 2024, Mr Cezil paid $73 for glasses for [Child 1]. The private health insurer, [Insurer 1], was billed $250.
On 28 May 2024, Mr Cezil paid $33 (and $100 is noted as ‘previously paid’) for glasses for [Child 2]. The private health insurer, [Insurer 1], was billed $75.
In separate letters all dated 24 June 2024, Child Support:
· Credited $73, which was Mr Cezil’s out-of-pocket cost for [Child 1’s] glasses, and purported to disallow $177.
That figure appears to come from a misinterpretation of the invoice, subtracting the out-of-pocket cost from the amount paid by [Insurer 1]. The cost of the glasses, though (from the optometrist’s perspective), was the sum of those figures, $323.
· Credited $133, which is Mr Cezil’s out-of-pocket cost for [Child 2’s] glasses including the prepaid amount.
· Credited $20.99. I am unsure what that relates to.
On 14 July 2024, Mr Cezil objected to a decision of 24 June 2024, though there were 3 different decisions bearing that date. His request for review queries why the cost of lenses but not the cost of frames had been credited.
Child Support took the objection to be in relation to the decision about [Child 1’s] glasses. Given that only one of the three decisions dated 24 June 2024 has the feature of refusing to credit any amount of money, I am satisfied that is correct.
The objection decision followed the original decision in misapprehending that $177 was in issue, and not $250 plus $73. The objection decision on one hand purports to affirm the original decision to credit $73, but at its conclusion says ‘Therefore, we have credited this payment of $177 for glasses as a prescribed non-agency payment’.
In all of that, the question is whether Mr Cezil can have his out-of-pocket costs ($73) and/or [Insurer 1’s] rebate ($250) credited to his child support liability under section 71A or section 71C.
Mr Cezil readily acknowledged in the hearing that there was no prior agreement by Ms Roseaman that the cost of glasses would be in partial satisfaction of his child support liability. He said that it was difficult to get Ms Roseaman to discuss such things. Section 71A cannot apply.
As to section 71C, Mr Cezil – as set out above – did not have ‘regular care’ at the time the payment was made.
In relation to the [Insurer 1] component, I accept the interpretation of regulation 19 as per the Child Support Guide. A person can have the cost of certain medical expenses credited under section 71C but only their out‑of‑pocket costs, and not any rebate expended by an insurer. The amount expended by the insurer is simply not an amount the person with the child support liability has paid. That person might also pay for private health insurance, but insurance premiums are not themselves captured by regulation 19.
In relation to Mr Cezil’s out-of-pocket costs, the question is whether the purchase of glasses for [Child 1] was for essential medical treatment within the meaning of regulation 19.
Unfortunately, some of the hearing proceeded on the basis that the glasses were for [Child 2], who wears glasses.[6] [Child 1], though, does not habitually wear glasses. Mr Cezil said that they might be sunglasses.
[6] The purchase of glasses for [Child 2] was the subject of the AAT’s decision in 2023/SC027164
Comparing the invoices for [Child 2’s] glasses and [Child 1’s] glasses, I am satisfied that is correct. [Child 2’s] invoice has a dioptre measurement, consistent with corrected vision. [Child 1’s] invoice does not. It has what appears to be a tint.
I accept, as the Child Support Guide does, that ‘medical’ is not to be read so narrowly as to exclude optometric treatment. But I cannot conclude that the glasses purchased for [Child 1] are medical treatment, let alone essential medical treatment, where the purchase appears to be of mere sunglasses.
It follows that section 71C does not apply, and there is no legislative basis to credit the amount paid by Mr Cezil to his child support liability.
Conclusion
Mr Cezil’s care for each of the children is more than was determined in the objection decision, but not so high as to affect the cost percentage. It is nonetheless appropriate to revoke the previous care determination. The new determination will have effect from 28 March 2024.
It was of some concern to Mr Cezil and Ms Roseaman at the hearing to understand how long that determination would persist for. The answer is that it will persist until there is a change in the pattern of care (notified by either of them). If there is a change in the pattern of care, though, which does not affect the cost percentage (that is, unless Mr Cezil has at least 14% care), it may be open to Child Support to not revoke the determination. The 12-month period I adopted for the purposes of determining care arrangements is of no consequence for that question.
As to the non-agency payment matter, there has unfortunately been a degree of confusion and error in the interpretation of what was actually paid and what it was for, and in the effect of the objection decision. The correct position is that Mr Cezil’s expenditure is not a non-agency payment.
DECISION
2024/SC028672
The Tribunal sets aside the decision under review and, in substitution, decides that:
The existing percentages of care are revoked under subsection 54H(1) of the Child Support (Assessment) Act 1989,
In accordance with subsection 54H(2), the revocation takes effect on 27 March 2024,
Under subsection 50(2), the percentages of care for [Child 1] are 12% for Mr Cezil and 88% for Ms Roseaman, and the percentages of care for [Child 2] are 10% for Mr Cezil and 90% for Ms Roseaman, from 28 March 2024.
2024/SC029077
The Tribunal sets aside the decision under review and in substitution decides that the cost of glasses purchased for [Child 1] in May 2024 should not be credited as a non-agency payment.
| Date(s) of hearing: | Tuesday, 8 April 2025 |
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