CZCB and Child Support Registrar (Child support second review)
[2025] ARTA 1672
•3 September 2025
CZCB and Child Support Registrar (Child support second review) [2025] ARTA 1672 (3 September 2025)
Applicant:CZCB
Respondent: Child Support Registrar
Other Party: LRHJ
Tribunal Number: 2024/0936
Tribunal:Senior Member S Trotter (second review)
Place:Brisbane
Date:3 September 2025
Decision:The Tribunal affirms the decision under review.
Statement made on 03 September 2025 at 4:29pm
Names used in all second review child support published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by sections 16(2AB)–16(2AC) of the Child Support (Registration and Collection) Act 1988.
Catchwords
CHILD SUPPORT – care percentage determination – whether pre-existing percentages of care to be revoked – section 54G revocation – whether interim period applies – whether special circumstances – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Child Support (Assessment) Act 1989 (Cth)Child Support (Registration and Collection) Act 1988 (Cth)
Cases
Child Support Registrar v BKCZ [2023] FCA 1109
MDXJ v Secretary, Department of Social Services [2121] FCA 1767
Hneidi v Minster for Immigration and Citizenship [2110] FCAFC 21: (2110) 182 FCR 115
Minister for Home Affairs v G [2119] FCAFC 79; (2119) 266 FCR 569Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Secondary Materials
Department of Social Services, Child Support Guide (Guides to Social Policy Law, version 4.92, 11 August 2025)
Statement of Reasons
BACKGROUND
Ms CZCB (the Mother) and Mr LRHJ (the Father) are parties to a child support case registered with Services Australia – Child Support (Child Support) in relation to financial support to be provided for a daughter, born October 2004 (referred to as D1 in these Reasons) and a daughter, born August 2007 (referred to as D2 in these Reasons), first registered on 21 July 2009. The Respondent is the Child Support Registrar, the statutory officeholder responsible for administering the scheme within Services Australia and will be referred to as Child Support in these Reasons. The application concerns a single decision of Child Support about the percentage of care determinations for each parent for each of the children utilised in calculation of the child support liability.
The pre-existing percentage of care determinations applying in the child support case for the children were 83% to the Mother and 17% to the Father from 8 May 2015, consistent with care provided for in a Court Order dated 2 May 2012.
Child Support’s records show that on 13 May 2021, the Father notified Child Support that the care of D1 and D2 had changed to 0% to the Mother and 100% to the Father from 11 May 2021.
On 14 June 2021 and 12 July 2021 respectively, in relation to each of the children, Child Support decided to revoke the pre-existing percentage of care determinations and record new percentage of care determinations of 0% to the Mother and 100% to the Father from 11 May 2021.
On 4 March 2023, the Mother objected to the 14 June 2021 and 12 July 2021 decisions and, on 16 June 2023, a Child Support objections officer refused to allow the objections.
On 3 January 2024, following an application on 7 July 2023 by the Mother for first review of the objection decision, the Social Security and Child Support Division of the Administrative Appeals Tribunal (the AAT) affirmed the objection decision (the AAT1 decision). This decision was notified to the parties on 17 January 2024.
On 16 February 2024, the Mother lodged an application with the AAT seeking second review of the decision, with detailed reasons for the application as set out in Attachment 1 to her application.[1]
[1] Pages 3 to 5 of Exhibit R1.
On 3 May 2024, the AAT extended the time for the making of an application for second review by the Mother to 16 February 2024.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, proceedings in the AAT that were not finalised before 14 October 2024 are taken to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
The Mother, the Respondent’s representative, and the Father participated by telephone in a hearing before me on 10 July 2025, with the Mother and the Father giving sworn evidence. In addition to the Mother’s and the Father’s oral evidence and the oral submissions at hearing from all parties, I took into account the following documents before me:
(a) Documents provided by the Respondent pursuant to section 37 of the then Administrative Appeals Tribunal Act 1975 (the AAT Act), pages numbered 1 to 495 excluding documents numbered 481 to 482, 484 to 490 and 491 to 494, marked as Exhibit R1;
(b) the Mother’s Statement of Issues dated 18 December 2024;
(c) the Respondent’s Statement of Issues dated 11 November 2024; and
(d) the Respondent’s Statement of Facts, Issues and Contentions (SFIC) dated 17 March 2025.
PRELIMINARY MATTERS
The Mother’s 18 December 2024 Statement of Issues refers to a number of concerns the Mother has with Child Support processes and previous decisions, including the AAT1 decision. This includes, but is not limited to the following:
(a) the Mother’s disagreement with one of the conclusions reached in the AAT1 decision that there were not special circumstances that prevented the Mother from lodging an objection, on 4 March 2023, in a timely manner to the 14 June 2021 and 12 July 2021 decisions of Child Support for the purposes of subsection 87AA(2) of the Child Support (Registration and Collection Act) 1988 (the Registration and Collection Act);
(b) the reliance at AAT1 upon alleged reports that were either untrue, or with no findings or formal investigation of alleged significant harm;
(c) the reliance at AAT1 upon confidential documents that should not have been disclosed and the ignoring of circumstances that should have been considered;
(d) Child Support and AAT1 ignoring domestic violence and not providing weight to the impact of ongoing abuse whilst giving significant weight to the Father’s prejudicial innuendo, self-reporting, and false claims with false declarations of the Father being ignored;
(e) the Mother has forever lost time with her children because she was not provided procedural fairness and the Father’s misleading conduct went unchecked. If the Mother had been provided with an interim care period, the Father would have been more motivated to return the children until the outcome of the Family Law matter and the children would be living with her now, but for the wrongful decision;
(f) AAT1 did not accept into evidence a statement of the Mother’s mother (referred to as Mrs V in these Reasons) dated 1 December 2023 demonstrating the Father was the perpetrator of ongoing domestic violence to which the children and the Mother were subjected;
(g) a statement obtained by the Father from Mrs V and utilised in the AAT1 process was obtained in relation to a separate legal matter in exchange for the Father’s permission for Mrs V visit the children; and
(h) the Mother has suffered ongoing personal trauma from the loss of her children that resulted in mental health sickness and hospitalisation, and she relied upon inaccurate and misleading information provided to her by Child Support.
As regards section 87AA of the Registration and Collection Act, and whether there were special circumstances that prevented the Mother from lodging her objection within the time stipulated for the purposes of subsection 87AA(2) of the Registration and Collection Act, there is no time limit for lodging an objection. Limitations as provided for in section 87AA of the Registration Act only become relevant if the objection is allowed in a way that has the effect of varying the decision under review, or if a new determination is substituted. For the reasons that follow, I have not varied the decision under review nor substituted a new determination. It is therefore not necessary to consider subsection 87AA nor the special circumstances consideration under that section and I have not done so.
As regards the Mother’s submission that confidential documents have been relied upon that should not have been disclosed, on 10 September 2024, the AAT (differently constituted) decided not to exclude from evidence in the proceedings disputed documents the Mother sought to exclude, including on the basis that they were subject to a Harman undertaking. That decision was made on the basis that the matters could be further ventilated in the final hearing of the matter. As discussed with the parties at hearing, I considered it unnecessary to have regard to the disputed documents and have excluded them from my consideration and excluded them as part of the evidence. As will be seen from the Reasons that follow, I considered the other documents before me, and the parties’ oral evidence, sufficient for me to fully consider the issues before me and to reach a conclusion.
As regards the Mother’s concern in relation to procedural fairness, as discussed with the parties at hearing, in conducting a second review in relation to this matter, I am reviewing the matter afresh, not bound by any earlier decisions or conclusion reached. I am satisfied that both non-Agency parties have been afforded procedural fairness, have been made fully aware of the relevant issues to be determined by me and have been given full opportunity to know the case against their position, aware of the relevant information and evidence and have been given a reasonable chance to respond, presenting evidence and submissions in that regard.
As regards allegations of family violence, including coercive control, the Tribunal acknowledges the Mother’s statements, however, is not an adjudicator of such issues. There are no family violence orders in evidence before the Tribunal. Many of the matters raised by the Mother, whilst of understandable importance, are not relevant to the issues arising for consideration in relation to this application. I will address some of the matters raised in these Reasons where they arise tangentially, however, I have otherwise confined the matters addressed in these Reasons to only those relevant to the issues before me. That does not diminish in any way the matters raised or the importance of the matters to the Mother – rather I must necessarily confine myself to only the relevant issues and evidence.
ISSUES
The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act). Unless otherwise noted, all legislative references in these Reasons are to the Act. The legislation provides the Registrar, that is, Child Support, and the Tribunal on review, with rules for assessing and changing percentage of care determinations, which are then used as part of the child support formula to assess child support rates.
I also had regard to the Child Support Guide (the Guide) where relevant. As recognised by the Federal Court in MDXJ v Secretary, Department of Social Services [2020] FCA 1767:
The part which a governmental policy should ordinarily play in the determinations of the Tribunal is a matter for the Tribunal to determine, in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions, but balanced against the ideal of justice in the individual case (Hneidi v Minster for Immigration and Citizenship [2010] FCAFC 20: (2010) 182 FCR 115 at [43]). Further, it is well-established that the Tribunal must make the correct or preferable decision in each case on the material before it and that the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 642-643 per Brennan J). The important matter is compliance with the terms of the relevant statute itself Minster for Home Affairs v G [2019] FCAFC 79; (2019) 266 FCR 569.
The child support legislation provides for assessment of child support using a formula that takes into account numerous variables, including relevant care percentages for each party to a child support assessment.
Sections 49 and 50 require initial percentage of care determinations to be made upon initial registration of a child support case, usually based upon the actual care of a child parties to a child support case have. Existing percentage of care determinations are usually required to be revoked, pursuant to either section 54G, 54F or 54H, when a change of care occurs, and new percentages of care apply.
Except for in certain circumstances not relevant to this case, care percentages are to be determined corresponding to the actual care a person has had, or is likely to have, during a care period.
As to the appropriate care period to be considered, a care period is defined in the Act as being such a period as considered to be appropriate having regard to all the circumstances. The Guide provides that a care period is generally the 12-month period starting from the date the actual care of the child began or changed. The same care arrangements will then be assumed to continue to apply after the end of the care period unless Child Support is notified or becomes aware of a subsequent change in the pattern of care and the requirements of the legislation are satisfied for a new care decision to be made.
Both sections 49 and 50 first require consideration of whether the relevant person has had, or is likely to have, no pattern of care or a pattern of care for a child for the care period. If applicable, section 49 then requires a percentage of care determination of 0% for a person with no pattern of care. If applicable, section 50 then requires that the percentage of care determined for the relevant person must be a percentage that corresponds with the actual care the person has had, or is likely to have, during the care period. Section 54A provides that the actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that a child was, or is likely to be, in the care of a person.
The legislative test therefore first requires consideration of whether a person has had, or is likely to have, a pattern of care of a child for a care period and, if so, then assessment of the actual care a person has had, or is likely to have, during the care period is required.
As was recognised by Thomas J in the Federal Court case of Child Support Registrar v BKCZ [2023] FCA 1109 at [72], section 50 allows a decision-maker flexibility to consider what care a person ‘had or is likely to have’ depending upon when, relative to the care period, the decision is being made.
In certain circumstances parents can be recorded as providing the care they should have been providing pursuant to a formal care arrangement such as a court order, parenting plan or written agreement, rather than the care they were actually providing, for an interim period, that is, an interim determination may apply.
The issues which arise in this case are:
(a) Are the pre-existing percentage of care determinations of 83% for the Mother and 17% for the Father, in relation to the 13 May 2021 notification of a change in care, to be revoked? And, if so,
(b) Can percentage of care determinations different to the actual care occurring from 11 May 2021 be recorded for an interim period?
(c) What are the new percentage of care determinations for the Mother and the Father? and
(d) What are the dates of application of the new percentage of care determinations?
CONSIDERATION
As can be seen from the legislative provisions referred to earlier, the usual position is that care recorded for child support purposes aligns with the actual care of a child or children that has occurred or is occurring. As also already noted, in certain circumstances, care can continue to be recorded pursuant to a court order, parenting plan or written agreement, for an interim period if certain legislative requirements are met. If an interim period can apply, the duration of the interim period is either 14 weeks, 26 weeks, or 52 weeks depending upon the circumstances, following which the recorded percentages of care correspond with the actual care occurring.
As regards the actual care occurring and matters of potential relevance to whether an interim care period applies in the circumstances, the Mother’s 18 December 2024 Statement of Issues at paragraph 20 and following details the Mother’s evidence and submissions as to the factual background regarding the change in care that occurred in May 2021. I discussed these paragraphs, and particularly the matters listed at paragraphs 20 and 24 (which the Mother confirmed as an accurate record of what had happened), with the Mother at the hearing before me. The Mother gave further details of a disciplinary dispute she had with her oldest daughter, D1, on 18 April 2021, stating that D1 pointed a knife at her and stabbed the knife hard into the table in a threatening way, following which D1 threatened her and her husband resulting in her (the Mother) walking around the table and clipping D1 on the back of the head and calling her names. The Mother said she is regretful of becoming heated at the time (she probably wasn’t at her best self at the time), but it was pretty frightening because D1 pointed a knife at her face.
I also discussed with the Mother the reference in her statement to the children’s school calling her on 10 May 2021 to ‘advise that they had to make another mandatory report and that the children would not be returning home’.[2] I asked the Mother if, as is suggested by that statement, there had been previous mandatory reporting. The Mother said that there had been but that it is not as bad as it sounds and that it needed to be understood that the reports had been made by coercion and she thinks D1 was using (mandatory reporting) as a way of controlling her from a parenting perspective. The Mother said that she understands that one of the reports included that she had read a suicide letter to the children and that had just never happened. I discussed with the Mother that it was not my role to make any assessment in relation to the reports themselves or to make any judgment on what may or may not have happened and that I needed to focus on the objective issue of whether it was correct that a mandatory report had been made, with the school contacting her in that regard. The Mother confirmed that this was correct, however saying she agrees the reports were made and the school contacted her, but she disputes the basis of the mandatory reports. The Mother’s evidence included that the children did not go into the Father’s care that night, 10 May 2021; rather they went to a friend’s house, then went to school the next day and the Father collected them after school the next day.
[2] Paragraph 24(n) of the Mother’s 18 December 2024 Statement of Issues.
I further discussed with the Mother and Father at hearing that, given the date of the change in care 11 May 2021, the interim care provisions of the legislation could only be of potential application if it was satisfied that the Father was making the children available for care to the Mother. I noted that a suggestion arose on the evidence that it was not that the Father was not making the children available for care, rather the children were choosing not to be in her care. The Mother responded, including noting that a statement dated 14 June 2021 from the Father’s partner, at page 35 of the T-Documents, included that the children did not want to return to the Mother and submitted that was a matter for the Tribunal to determine, as it was a matter upon which she (the Mother) and the Father deeply disagreed. The Father, in response, said that the children were choosing not to go back into the Mother’s care on 11 May 2021.
I further discussed with the parties at hearing that another potential issue arising for determination in relation to whether an interim care period could apply was whether special circumstances existed in relation to the children such that an interim period would not apply in any event. To assist in an understanding of this issue I noted that the AAT1 decision determined that special circumstances did exist such that only one percentage of care (corresponding with actual care) for each parent applied in the circumstances, meaning that no interim period applied. I acknowledged the confusing terminology of the legislation, and also therefore necessarily the reasons for decision dealing with the issue. I further noted that it appeared even more confusing because seemingly there was a typographical error in the AAT1 decision and reasons in that the word ‘not’ should not appear on the first line of paragraph 34 of the Reasons for that decision. I also noted that the special circumstances being considered in relation to this provision of the legislation was different to the ‘special circumstances’ provision of potential application in relation to section 87AA of the Registration and Collection Act.
Turning to the issue of whether special circumstances existed in relation to the children, I noted that, as referred to in the Respondent’s submissions, the Guide sets out relevant matters that might be taken into account in relation to this issue. I noted that I was not constrained by the Guide but that it was relevant matter for me to take into account if not inconsistent with the legislation. I noted that the relevant provision of the Guide, clause 4.2.4 provides the following guidance:
Special circumstances include, but are not limited to, situations where violence or other inappropriate behaviour by the person who has reduced care has contributed to the change in care. Examples of unreasonable or inappropriate behaviour of the parent include:
· violence towards the child or the person with increased care
· exposing the child to family violence (within the meaning of section 4AB of the FL Act)
· directly involving the child in a criminal act
· exposing the child to alcohol, drugs or substance abuse
· substantially failing to comply with legal schooling requirements
· neglecting the child's basic needs, such as withholding essential medical care from the child or disregarding their daily needs for food, shelter, hygiene.
I discussed at hearing that one of the relevant considerations suggested by the Guide was whether there was violence, by the person with reduced care, towards the child or whether the child had been exposed to family violence. I noted that evidence before me of potential relevance to that issue included what the Mother had stated in paragraph 24 of her 18 December 2024 Statement of Issues about what was occurring prior to and around the time of 11 May 2021. I also noted that there was other evidence in the documents of potential relevance to discuss with the Mother in relation to the issue. I noted that there were three documents that I wished to discuss and that none of the documents were contained within the documents to which the Mother had raised objections, nor the subject of the order of 10 September 2024. The three specified documents are:
(a) an email from a Department of Communities and Justice (DCJ) social worker to the Father dated 20 May 2021, including as follows:
…
Firstly, a mandatory report has been made for both D1 and D2 to FACS (family and community services). The report has been passed straight through to the office because the harm has been deemed significant…;[3]
[3] Page 144 of Exhibit R1.
(b) a letter from the children’s school to the Mother dated 8 June 2021 including as follows:
…
1. On 10 May 2021 while at school [D1 and D2] made disclosures to school staff.
2. As a result of the disclosures a Risk of Significant Harm report was made to the Department of Communities and Justice and to the Office of Safeguarding, Diocese of Maitland-Newcastle.
3. [D1 and D2] decided they did not wish to return to your home as they did not feel safe and were scared. The girls informed staff of their preferred alternate safe accommodation.
4. School staff called [the Mother’s husband] and informed him that [D1 and D2] had decided to stay elsewhere.
5. School staff called to inform you however the phone call was interrupted by [the Mother’s husband] and ended.
6. School staff called [the Father], as the other parent on the enrolment record to inform him.
7. I understand from the following day that [D1 and D2] have been living with [the Father].
Federal Family Court Orders
I note the school were not informed of any Family Court Orders at the time of enrolment, despite there being a specific item on the enrolment form identifying these as required information and then being asked during enrolment interviews. A copy of the Orders was not received until 31 May 2021.
I have reviewed the Orders made on 2 May 2012. These Orders do not stipulate that Parental Responsibility is with a particular parent. Therefore, pursuant to the Family Law Act, both parents have equal parental responsibility. There are no orders that prohibit the school from providing [the Father] with information about [D1 and D2's] enrolment, educational or welfare.
On 10 May 2021 we acted in accordance with our duty of care to ensure [D1 and D2's] welfare, well-being and safety following the disclosures that were made by them and in accordance with their obligations as a mandatory reporter.
The matter of with whom and where the children reside and go to school is a family law issue to be determined by the Family Law Court or to be resolved between you and [the Father];[4]
(c) an email from the DCJ to the Father dated 8 June 2021 including as follows:
…We received a risk of significant harm report for D1 and D2 with concerns for the mental health of their mother and excessive discipline by her towards the children;[5]
[4] Page 264 of Exhibit R1.
[5] Page 137 of Exhibit R1.
The Father’s evidence included that he arranged for the children to have psychology appointments when they came into his care in May 2021, and he then received the emails from DCJ. He said that the children’s school called him twice in two months to arrange for the children to go into his care. He said he did not take the children – the school rang him saying it was not safe for the children to go home (to the Mother) and asking him to take the children.
I discussed with the Mother that, based upon her own account of the circumstances leading up to the 11 May 2021 change in care of the children, and the three documents detailed, it might be open to me to find that special circumstances existed in relation to the children at the time such that an interim period did not apply. I raised that I might consider that notifications of the type being made to the school at the time and passed on to the social worker, together with the Mother’s own evidence of what happened at the time, might be sufficient for me to be satisfied that special circumstances existed in relation to the children. I asked the Mother if she understood that such a conclusion might be open to me and the Mother indicated that she understood that, but said that the information being relied upon was prejudicial and self-reported untried information that doesn’t meet a standard of proof to determine there was substantial risk to a child. I noted that I did not need to be satisfied that there was substantial risk to a child in order to be satisfied that special circumstances existed in relation to a child. I stated that there was no required onus of proof to prove significant harm and that I may be satisfied that special circumstances existed at the time based on the fact of reports being made and allegations being made alone. The Mother responded that when she spoke to the psychologist, Jill, Jill said that the school had no right to make the claim that they made because they can’t investigate or make decision – it’s not their jurisdiction to do that. The Mother said she had worked in a school, including when significant violence was going on for children, and the school cannot do anything until DCJ intervenes – she said the school was not operating within their jurisdiction. The Mother continued on to say that she was threatening the school with legal action when they wrote the letter, so they were just trying to protect themselves because they had made a decision outside their jurisdiction. Further, she had also made significant reports to DCJ, including because the children were being withheld from school (by the Father). They missed out on six weeks of school, which she reported to DCJ, and they also missed on medical doctor’s appointments that they needed to attend.
I further discussed with the Mother that, even based upon just her own evidence of what had happened with the children leading up to May 2021, I might conclude that special circumstances existed in relation to the children. I noted that the Mother’s own evidence was that she had clipped the child, D1, on the back of the head and that might be a reason that I might conclude that special circumstances existed. The Mother repeated that it was something she regrets and that she did once – it was not an ongoing thing that happened on a regular basis. The Mother queried at what point is it looked at that the child had a knife in her hand and was pointing in at her. I noted again that no judgments were being made and that wherever the rights or wrongs may lie, the fact of the altercation itself might be sufficient for a conclusion to be reached that special circumstances exist, with no judgment or blame attributed. The Mother responded that she rang the police about it because she felt terrible about what she did, and they said you are not meant to hit them (children) above the head, but it was the fact that she had a knife in her hand and threatened her with it. The Mother said the Father was not concerned about there being significant harm to the child because he sent her home (back to her) after that incident. She was with the Father for three days after that and she came home again. She and D1 had time to cool off after that and D1 came home (to her). She said that nothing then happened with her and the children between the time the Father sent D1 home after that until he took them again in May 2021. I referred the Mother to paragraph 24(j) of her 18 December 2024 Statement of Issues and noted her statement that she told D1 that she thought D1 needed to go and live with the Father because she (the Mother) was not feeling safe. The Mother said she told D2 that she didn’t have to go, and she now realises the Father was planning to remove the children and was coercing them. The Mother’s evidence to me continued on to include that she just wanted it to be a temporary change in care for D1 – she wanted D1 to realise that she wasn’t going to tolerate the behaviour that was occurring – there was total disrespect to her from D1 and she was making constant threats to her.
After canvassing these issues with the Mother, I asked the Father at hearing whether there was anything he wished to raise, including in relation to any of the issues canvased. The Father said that the only thing he wanted to say was that he acted on the independent information that was in front of him and if he had his time again, he would do the exact same thing, the exact same way. He said he can only go on what is in front of him, what the children told him, what the school told him, and the feedback he received from the psychologists and social workers.
The Mother further responded that the letter from the school dated 8 June 2021 states, at paragraph 3, that the children did not want to return home, which contradicts the Father’s evidence that the school instructed him that the children needed to be collected. She said that she was not privy to the Father’s conversations with the children or the Father’s conversations with the school and the children already had their bags packed – she said that it was like it was all pre-arranged. She said this supports that there were a whole lot of things going on in the background, further support for special circumstances not applying. The Mother submitted that she had maintained from the outset that this is all in response to the Father’s child support liability increasing significantly and that the Father had threatened to her that she would never get the payment when his child support increased. The Mother submitted that this was all premeditated – she said there was an issue between her and her eldest daughter (who held a knife in her face) but there was never an issue with her youngest daughter. The Mother submitted that all of the issues existed because of coercion and ongoing domestic violence and denigration that has been going on for over 10 years. She said that she and D1 would have resolved their issues if not for the interference of the Father. She said that her reports to DCJ about the Father also need to be taken into account.
In response, the Father stated again that he would not have changed his decision about taking the children into his care in any way, shape, or form regardless of what child support he was paying. He was concerned the children were in a violent home. He further stated that he had never been aware of any mandatory reports being made against him – the first he heard of that was at hearing – he had assumed if that had happened, he would have been contacted and he has never been contacted about any such report against him.
In closing submissions, the Mother stated that the children have been and were always safe and loved in her home and any report to the contrary, including a self-reported bad day because of circumstances, doesn’t mean the children weren’t safe and loved.
Issue 1: Are the pre-existing percentage of care determinations of 83% for the Mother and 17% for the Father, in relation to the 13 May 2021 notification of a change in care, to be revoked?
It is not in dispute, and I find that the children ceased to be in the Mother’s care from 10 May 2021 and from 11 May 2021 were in the care of the Father. I consider a care period of 11 May 2021 to 10 May 2022 appropriate in the circumstances. I find the Mother had no pattern of care of the children and the Father has had 100% care of the children from 11 May 2021 to 10 May 2022, contrary to the 2 May 2012 court-ordered care of 83% to the Mother and 17% to the Father.
I first considered whether revocation of the pre-existing percentage of care determinations is required pursuant to section 54G in the circumstances.
Section 54G provides as follows:
(1) If:
(a)a responsible person (the first responsible person) for a child was to have at least regular care of the child during a care period under a determination (the first care determination) made under section 50; and
(b)the first responsible person has had no care of the child, or has had a pattern of care that is less than regular care of the child, despite another responsible person for the child making the child available to the first responsible person; and
(c)determination of the other responsible person’s percentage of care for the child has been made under section 50; and
(d)the other responsible person notifies the Registrar or the Secretary of the matter referred to in paragraph (b) of this subsection within a period that the Registrar considers is reasonable in the circumstances;
the Registrar must revoke both determinations.
The Mother was to have at least regular care (defined as being at least 14%) pursuant to the pre-existing percentage of care determination of 83% care to her. Paragraph 54G(a) is therefore met.
It is not in dispute that from 10 May 2021, the Mother had no care of the children[6]. As to whether the Father was making the children available (for care) to the Mother, section 4.1.7 of the Guide includes the following guidance:
…
In some cases, the choice or actions of the child may prevent care from occurring as anticipated despite the genuine attempts of one or multiple parties. The Registrar will generally only be satisfied that it is the child's action that is preventing care from occurring when the child is 15 years or older (although in some circumstances younger children will be considered).
[6] I note that from 17 December 2022, the Mother is recorded as having 4% care of D2, care that is still less than regular care.
Having had regard to all of the evidence, I am satisfied that it was the children’s choice not to be in the care of the Mother from 10 May 2021. D1 was 16 years of age at the time and D2 was 13 years of age at the time. Although D2 was younger than 15 years of age, in the circumstances I am satisfied that care of the Mother did not occur from 10 May 2021 because of the choice of both children and that, therefore, the Father was otherwise making the children available. Paragraph 54G(b) is therefore met.
A determination as to Father’s percentage of care has been made under section 50. Paragraph 54G(c) is therefore met.
The Father notified the change in care on 13 May 2021, only 2-3 days after the change in care occurred. I am satisfied that this was reasonable in the circumstances such that paragraph 54G(d) is met.
Paragraphs (a), (b), (c) and (d) of section 54G all having been met means that the pre-existing percentages of care of 83% to the Mother and 17% to the Father must be revoked.
Issue 2: Can percentage of care determinations different to the actual care occurring from 11 May 2021 be recorded for an interim period?
The usual position when pre-existing percentages of care are revoked is that new percentage of care determinations are required pursuant to either section 49 or section 50, corresponding to the actual care taking place. As already noted in certain circumstances, care can continue to be recorded pursuant to a court order, parenting plan or written agreement, for an interim period if certain legislative requirements are met.
Firstly, I note that an interim period is only of potential relevance prior to 29 March 2024, when pre-existing percentages of care are required to be revoked pursuant to section 54G. If pre-existing percentages of care are revoked pursuant to section 54F or 54G instead, subsection 53(1)(c) as then in operation prevented the interim care provisions applying.[7] I have found that the pre-existing percentage of care determinations are required to be revoked pursuant to section 54G. I therefore considered whether an interim period applies in the circumstances.
[7] See Child Support Registrar v CMU23 [2024] FCA 109 (CMU23) and the Social Services Legislation Amendment (Child Support and Family Assistance Technical Amendments) Act 2024.
Essentially, the application of section 51 for child support assessment purposes results in the percentages of care reflecting the care arrangement as specified under a breached care arrangement staying in place during an interim period and percentages of care reflecting the actual care occurring applying after the end of the interim period, of either 14, 26, or 52 weeks depending upon the circumstances.
The four requirements in subsection 51(1) of the Act that must be met for an interim care determination to be applied are as follows:
(a)Care percentage determinations are required to be made pursuant to section 49 or section 50 (paragraph 51(1)(a)).
(b)A formal care arrangement (court order or parenting agreement) applies in relation to the children (paragraph 51(1)(b)).
(c)The parents’ actual care of the children that the parents have had or are likely to have during the care period does not comply with the extent of care they should have had or are to have under the care arrangement (paragraph 51(1)(c)); and
(d)The person with reduced care is taking reasonable action to ensure that the care arrangement is complied with (paragraph 51(1)(d)).
I have found that revocation is required pursuant to section 54G of the Act and new care percentage determinations are required pursuant to sections 49 and 50 of the Act. Paragraph 51(1)(a) is therefore satisfied.
A court order dated 2 May 2012 applies in relation to the children, providing for the Mother to have 83% care and the Father to have 17% care, such that paragraph 51(1)(b) is satisfied.
I have found that the Mother’s actual care of the children from 10 May 2021 did not comply with the 2 May 2012 court order such that paragraph 51(1)(c) is also satisfied.
The documents provided to Child Support state that, on 15 June 2021, the Mother filed an application with the Federal Circuit Court of Australia, including seeking a recovery order in relation to D2 and seeking a parenting plan and recommenced care, in relation to D2. The documents further show that conferencing and mediation occurred but that no agreement was reached. I am satisfied based upon the evidence that the Mother was taking reasonable action to ensure that the care arrangement was complied with such that paragraph 51(1)(d) is also satisfied.
As all of the requirements of subsection 51(1) are met, subsection 51(2) requires that, subject to subsection 51(5), 2 percentages of care are required to be determined. What then usually follows is that the first percentage of care, the percentage provided for pursuant to the breached care arrangement (court order) applies for an interim period and the second percentage of care, the percentage corresponding to the actual care occurring, applies after the end of the interim period. However, consideration is first required as to whether subsection 51(5) applies. If subsection 51(5) applies, only one percentage of care is appliable, the percentage of care corresponding to the actual care occurring.
Subsection 51(5) relevantly provides:
Single percentage of care in relation to the responsible person
(5) If the Registrar is satisfied that special circumstances exist in relation to the child, the Registrar may determine, under section 49 or 50, a single percentage of care in relation to the responsible person.
As discussed with the parties at hearing, and as set out in paragraph 29 of these Reasons, the Guide at clause 4.2.4 gives examples of unreasonable or inappropriate behaviour that might lead to exercise of the section 51(5) discretion to only apply one percentage of care, the percentage corresponding to actual care occurring.
The Father’s evidence at hearing included that he had care of the children from 11 May 2021 because the school contacted stating that it was not safe for the children to return to the Mother’s care and asking him to take the care of the children, which he did. The letter from the school, and the emails from DCJ refer to mandatory reporting having occurred in relation to D1 and D2 at the time and to disclosures being made by the children to the school resulting in a Risk of Significant Harm report being made in relation to children in the Mother’s care.
Further, the Mother’s evidence included that there had been an altercation between her and D1 in April 2021, and a further discussion between her and D1 on 9 May 2021 suggesting that D1 live with the Father because the Mother did not feel safe.
The behaviours suggested by the Guide as being of relevance to exercise of the subsection 51(5) discretion include ‘violence towards the child’ or ‘exposing the child to family violence’. The Mother’s evidence included that she clipped D1 on the ear in April 2021 and that D2 ‘got in my face and shoved me back’.[8] I accept the Mother’s evidence that she regrets what happened, that it only happened on one occasion, and that she felt so terrible about it that she herself reported it to the police. I also accept the Mother’s evidence that D1 was at the time holding a steak knife and using in a way such that the Mother felt threatened. Without making any judgment as to the circumstances, or as to whether the actions were warranted or not in the circumstances, the evidence shows that violence - that, is a clip to the head- was occasioned to D1 by the Mother on 18 April 2021 and that D2 was witness to the violence. Further, what is not in dispute is that disclosures were made to the children’s school on 10 May 2021 or thereabouts, sufficient for the school to act upon its obligation as a mandatory reporter, to lodge a Risk of Significant Harm report with DCJ, and to contact the Father to take the children into his care because of concerns as to the safety of the children in the Mother’s care. The Mother disputes that the children were ever at risk of harm from her and questions the circumstances that led to the children making disclosures leading to the Risk of Significant Harm report. It is not necessary for me to find that significant harm had occurred, or that there was such risk, for me to be satisfied that special circumstances existed in relation to the children. The discretion is a very wide and general discretion. The Guide suggests that ‘special circumstances include, but are not limited to, situations where violence or other inappropriate behaviour by the person who has reduced care has contributed to the change in care’. However, the Guide recognised that special circumstances are not limited to just where there has been violence or other inappropriate behaviour by the person who has reduced care. In my view, the general circumstances existing may be sufficient of themselves for special circumstances to exist. The Mother suggests that the change in care was pre-meditated and that the children were coerced by the Father to make whatever disclosures they did to result in the Risk of Significant Harm report being made. Neither the Mother’s statement nor the three documents referred to in paragraph 30 of these Reasons shed any light on the details of the disclosures. However, it is not necessary for me to be appraised of any such detail. Leaving aside what may or may not have contributed to the state of affairs at the time, what is clear is that there was considerable dispute between at least the Mother and D1 at the time, dispute to which D2 was witness, and that the children told their school that they did not feel safe to return to the Mother’s care. I am satisfied that that, together with the Mother’s own recounting of the events of 18 April 2021, is sufficient to establish special circumstances existing in relation both the children such that the discretion provided for in subsection 51(5) be exercised and only one percentage of care applies, the percentage of care corresponding with the actual care occurring. It follows that an interim period during which a second percentage of care has effect does not apply.
[8] Paragraph 24(a) of the Mother’s 18 December 2024 Statement of Issues.
Issue 3: What are the new percentage of care determinations for the Mother and the Father?
I have found that only one percentage of care for each parent applies, a percentage of care corresponding with actual care. The percentages of care determined are 0% to the Mother pursuant to section 49 and 100% to the Father pursuant to section 50.
Issue 4: What is the date of application of the revocation of the pre‑existing percentage of care determinations and the date of application of the new percentage of care determinations?
The pre-existing percentages of care are revoked from 10 May 2021 with the new percentages of care of applying from 11 May 2021.
CONCLUSION
I have reached the same conclusion as the AAT1 decision (which affirmed the decision of Child Support). It follows that the decision under review is affirmed.
DECISION
The Tribunal affirms the decision under review.
Date of hearing: 10 July 2025 Applicant: Self-represented Respondent: Mr A Taverniti, Sparke Helmore Lawyers Other Party: Self-represented
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