Cucumba and Cucumba (Child support) - [2025] ARTA 2158

Cucumba and Cucumba (Child support) [2025] ARTA 2158 (12 September 2025)

Applicant/s: Ms Cucumba

Respondent: Child Support Registrar

Other Parties: Mr Cucumba
Tribunal Number: 2025/CC029885
Tribunal:Member C Breheny
Place:Hobart
Date:12 September 2025

Decision:The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – change to the likely pattern of care – period of absence – start date of the child support liability – request to backdate start date due to absence – decision under review affirmed

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

BACKGROUND

Ms Cucumba and Mr Cucumba are the separated parents of [Child A], born March 2012 and [Child B], born September 2014. On 16 October 2023 Ms Cucumba lodged an application for a child support assessment with Services Australia – Child Support (Child Support). On 4 March 2024 Ms Cucumba’s application was accepted, and Mr Cucumba was initially assessed as liable to pay child support to Ms Cucumba. That changed from 24 November 2023, when Ms Cucumba became liable to pay child support to Mr Cucumba on the basis that the parents had 50% shared care of the children.
On 24 March 2024 Ms Cucumba lodged an objection to the decision made on 4 March 2024 on the basis that she had had 100% care of the children from 23 August 2023 (as indicated on her application form). Ms Cucumba contended that the start date for child support should be changed (backdated) from 16 October 2023 to 23 August 2023.
On 22 April 2025 a Child Support objections officer decided to disallow Ms Cucumba’s objection. The objections officer found that the start date for child support is the day on which the application is lodged.
On 29 May 2025 Ms Cucumba applied to the Administrative Review Tribunal (the Tribunal) for a review of the objection decision. The application was heard on 9 September 2025. Ms Cucumba and Mr Cucumba attended the hearing by telephone and gave evidence on affirmation. I had before me the statement and documents provided by Child Support pursuant to section 23 of the Administrative Review Tribunal Act 2024, received on 12 June 2025 (documents numbered 1–171). I also considered a written submission (plus attachments) from Ms Cucumba, marked A1–A57. The issues raised in the submission were discussed in the hearing.

ISSUES AND CONSIDERATION

The relevant legislation is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Assessment) Regulations 2018 (the Regulations).
Section 23 of the Act says that an application for an administrative assessment of child support is properly made if it complies with the provisions in:
·     section 24 (dealing with the children in relation to whom the application may be made);
·     section 25 (dealing with the persons who may apply – parents);
·     section 25A (dealing with the persons who may apply – non-parent carers); and
·     section 27 (dealing with the formal requirements for the application) of the Act.
Section 24 of the Act sets out that a child in respect of whom an assessment is sought must be, amongst other things, present in Australia on the day on which the application was made and an Australian citizen, or ordinarily resident in Australia, on that day.
Section 25 of the Act sets out when a parent may apply for an administrative assessment of child support, including, among other things, that they are not living with the other parent on a genuine domestic basis.
Section 29 of the Act relevantly provides that if the Registrar is satisfied that an application for an assessment complies with sections 24 and 25 of the Act and the application is made by a person that is a parent of the child, the ‘Registrar may act on the basis of the application and the documents accompanying the application, and is not required to conduct any inquiries or investigations into the matter’.
In this case there is no dispute that Ms Cucumba submitted an application on 16 October 2023. She noted in her application that she had 100% care of the children from 23 August 2023, and on 28 November 2023 she confirmed that the children are in 50% shared care from 24 November 2023 (folio 101). The application was discussed with Mr Cucumba on 4 March 2024 (folio 104) and he confirmed Ms Cucumba’s evidence.
There is no evidence that Ms Cucumba’s application was not properly made in accordance with sections 24, 25 and 27 of the Act, and section 30 of the Act provides that if an application for an administrative assessment was properly made, the Registrar must accept the application. The Registrar did so on 4 March 2024.
Ms Cucumba acknowledged that she lodged an application for child support on 16 October 2023 but submitted that her application ought to be backdated to 23 August 2023, i.e., from the date that she had 100% care of children, due to the special circumstances of her case.
Ms Cucumba stated that Mr Cucumba left Australia on 23 August 2023 to travel to [Country 1] and then on to [Country 2]. She was left with the sole responsibility to care for the children. Mr Cucumba did not financially support the children until later in September 2023.
Ms Cucumba submitted that she was not sure of Mr Cucumba’s plans for the future, i.e., whether he was going to remain overseas for a long period (possibly indefinitely) or whether he would return to Australia. She therefore thought it was a high priority to initiate custody proceedings in the courts. She filed her court application [in] October 2023.
Ms Cucumba said that she had limited knowledge of the child support system and was not aware that child support payments would only be granted from the date of the application. She submitted that being a sole parent in full-time work and the urgent custody proceedings ‘created significant strain that prevented me from applying [for child support] sooner’ (folio A3). She submitted that her child support application should be backdated to 23 August 2023 so that the children could receive the financial support from Mr Cucumba that they were entitled to receive.
Mr Cucumba noted that he and Ms Cucumba separated in 2019, and they always had 50% shared care of the children. It was only for the limited period of about three months (from August to November 2023) when he was overseas that Ms Cucumba had 100% care of the children.
Subsection 31(1) of the Act states that once an application for an administrative assessment is accepted by the Registrar, the Registrar must, as quickly as possible, assess both parents in respect of the costs of the child (or children) in accordance with Part 5 of the Act.
Part 5 of the Act broadly provides that the rate of child support payable by a liable parent is ordinarily based on an administrative assessment, which requires the application of a statutory formula, that takes into account factors such as the number of children, the level of care provided and the income of each parent.
Subparagraph 31(1)(b)(ii) of the Act provides that the annual rate of child support payable (as assessed under Part 5 of the Act) is for a child support period that starts on the day the application was made.
Subsection 23(1) of the Regulations further provides that an application for an administrative assessment of child support is taken to have been made on the day on which the application is received in an office of Child Support. In this case Child Support received Ms Cucumba’s application on 16 October 2023.
I appreciate Ms Cucumba’s submissions but unfortunately there is no discretion in the legislation to consider special circumstances and backdate the start date of an application for child support.
This means Ms Cucumba’s application was made on 16 October 2023 and the child support liability commences from that date. I therefore affirm the decision under review.
For completeness, I note here that Ms Cucumba asked that I consider the provisions of section 112 of the Act, which indicate that the Registrar (or the Tribunal) may vary a decision were special circumstances apply. I note that section 112 of the Act provides that a court may grant leave to amend an assessment that is more than 18 months old and for the Registrar to make a determination under section 98S of the Act, if leave is granted.
This provision relates to departure determinations made by the Registrar (or the Tribunal) pursuant to Part 6A of the Act.
In summary, either the liable parent or the carer entitled to child support may apply to the Registrar for a determination to depart from the child support administrative assessment under Part 6A of the Act (section 98B). Section 98C provides that the Registrar may make a determination to depart from the formula assessment. The Registrar, and the Tribunal standing in place of the Registrar, must be satisfied that in the special circumstances of the case, a ground for departure from the administrative assessment exists and that it is just and equitable and otherwise proper to make such a departure determination. If leave is granted by a court in accordance with section 112 of the Act, the departure determination may apply to an assessment which is more than 18 months old.
I note Ms Cucumba lodged an application for a departure determination (change of assessment) pursuant to Part 6A of the Act with Child Support on or about 2 May 2024 (folios 44–95). This is a separate process that will need to be dealt with by Child Support in due course. The provision mentioned by Ms Cucumba (including consideration of special circumstances) applies to the change of assessment process only and is not relevant to the initial lodgement and acceptance of an application for a child support assessment and the relevant start date of the child support liability.

DECISION

The decision under review is affirmed.

Date of hearing:	Tuesday 9 September 2025
Representative for the Applicant:	Self-represented
Representative for the Other party:	Self-represented