Dane and Froud (Child support)
[2025] ARTA 245
•6 January 2025
Dane and Froud (Child support) [2025] ARTA 245 (6 January 2025)
Applicant/s: Mr Dane
Respondent: Child Support Registrar
Other Parties: Ms Froud
Tribunal Number: 2024/BC028446
Tribunal:Senior Member S Trotter
Place:Brisbane
Date:6 January 2025
Decision:
The Tribunal sets aside the decision under review and substitutes a new decision that, in respect of [Child 1]:
1. the existing percentage of care determination of 0% to Mr Dane is revoked from 5 February 2024 and a percentage of care determination of 50% applies for Mr Dane from 6 February 2024; and
2. the existing percentage of care determination of 100% to Ms Froud is revoked from 17 December 2023 and a percentage of care determination of 50% applies for Ms Froud from 18 December 2023.
Statement made on 06 January 2025 at 4:18pm
CATCHWORDS
CHILD SUPPORT – percentage of care – change of care occurred – date of effect – relevant considerations – existing care determination revoked – 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
BACKGROUND
1.Mr Dane and Ms Froud are parties to a child support case registered with Services Australia – Child Support (Child Support) in relation to financial support to be provided for [Child 1] (born 2009). The application concerns a single decision of Child Support about the percentage of care determinations for each parent for [Child 1] utilised in calculation of the child support liability.
2.The existing percentage of care determinations applying in the child support case for [Child 1] were 0% to Mr Dane and 100% to Ms Froud. Child Support’s records show that on 6 February 2024, Mr Dane notified Child Support that the care of [Child 1] had changed to 50% to him and 50% to Ms Froud from 18 December 2023.
3.On 9 April 2024, Child Support decided to refuse to accept that a change of care of [Child 1] had occurred and the care of [Child 1] continued to be recorded as 0% to Mr Dane and 100% to Ms Froud.
4.On 23 April 2024, Mr Dane objected to the 9 April 2024 decision and, on 20 August 2024, a Child Support objections officer disallowed the objection.
5.On 21 August 2024, Mr Dane lodged an application with the Administrative Appeals Tribunal (the AAT) seeking an independent review of Child Support’s decision, stating as follows (unedited):
There have been long delays in reaching a decision. By Child Supports own admission during phone conversations, they have exceeded the acceptable times for actioning my claim. The only proof I could provide was statements from my family who live with me and the child of concern ([Child 1] Dane). I was asked by Child Support services to provide the contact numbers of my witnesses with their statements. No attempt was made by Child Support to contact the witnesses. [Child 1]'s 2 adult brothers and his sister in law all provided corroborating statements and waited to be called but no contact from Child Support was forthcoming. The care for [Child 1] has been 50/50 since October last year but I am accruing a debt based on 100% care with [Child 1]'s mother.
6.From 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 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
7.Child Support did not participate in the hearing. In addition to Mr Dane’s and Ms Froud’ sworn oral evidence and submissions at hearing on 9 December 2024, I took into account documents copied to all parties, including documents provided by Child Support (Exhibit 1, pages 1 to 159).
ISSUES
8.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.
9.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.
10.The child support legislation provides for assessment of child support using a formula taking into account numerous variables, including relevant care percentages for each party to a child support assessment.
11.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.
12.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.
13.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.
14.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.
15.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.
16.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.
17.The issues which arise in this case are:
· Are the existing percentage of care determinations of 0% for Mr Dane and 100% for Ms Froud, in relation to the 6 February 2024 notification of a change in care, to be revoked? and, if so,
· What are the new percentage of care determinations for Mr Dane and Ms Froud? and
· What are the dates of application of the new percentage of care determinations?
CONSIDERATION
18.Mr Dane’s position is that following a number of upheavals in his personal life, including his father suffering a fall and his mother passing away, in October 2023 he moved to [Town 1] to be closer to [Child 1] and started a fly-in fly-out (FIFO) job. The 50/50 care commenced before then. He initially picked [Child 1] up from either school or home (Ms Froud’ home) and is now also picking him up from the gym. Mr Dane’s evidence was that this has been occurring for 14 months now – that is, that he commenced having 50/50 care of [Child 1] 14 months ago. He said that the 18 December 2023 date that he advised to Child Support was an arbitrary date based upon a phone call but the changed care actually started before then. Mr Dane said that he would leave home on Tuesday mornings at 4 am to fly out to his job as an [occupation] and he would get home the following Tuesday and then have care of [Child 1] until returning to work the following week. He said he was generally home in time to pick [Child 1] up at the gym, but sometimes one of [Child 1]’s two brothers, who also work in the [same] industry and live with him, would pick [Child 1] up for him.
19.Mr Dane provided unsigned statements to Child Support on 19 March 2024 in relation to [Child 1]’s care. Both statements, one from Mr Dane’s eldest son, [Child 2], and one from [Child 2]’s partner, [Ms A] (pages 68 and 69 of Exhibit 1), confirm that Mr Dane had 50/50 care of [Child 1] from approximately September/October 2023, spending every second week living with them and Mr Dane when home from his FIFO working role. A further statement from [Child 1]’s brother, [name] (page 71 of Exhibit 1), notes that [Child 1] lives with them (Mr Dane and him) at least 50% of the time but does not reference any time periods as to when that has been occurring.
20.Ms Froud’ position is that she wanted Mr Dane and herself to agree to a parenting plan before changing the care position of [Child 1]. She said that Mr Dane was having a couple of nights of care of [Child 1] when he first moved in October 2023 but that was only a couple of extra nights here and there. She said that Mr Dane was then forcibly taking [Child 1] for six nights a fortnight from Wednesday to Tuesday every second week. She approached Relationships Australia on 19 December 2023 because she felt that agreeing to a parenting plan was the responsible thing to do in those circumstances. Ms Froud said she referenced the time this occurred as being the time Mr Dane refused to do a parenting plan as requested by her.
21.Ms Froud’ evidence was that she was continuing to pay 100% of everything for [Child 1] and continued to be the one who arranged medical appointments and the like for [Child 1]. Ms Froud provided documents to Child Support, including a letter from [a] High School to her enclosing a 2024 Payment Arrangement Form (page 64 of Exhibit 1), an email confirming Ms Froud had been nominated as the QParents Account Owner for [Child 1] by [the] School (page 65 of Exhibit 1) and text messages between her and Mr Dane in February 2024 regarding Relationships Australia. Ms Froud also relied upon a statutory declaration provided by her to Child Support dated 16 August 2024 (page 114 of Exhibit 1) which included as follows (unedited):
I have always been the primary parent for my son [Child 1] Dane born [date]/08/2009. Recently Mr Dane demanded that he have 50% care of [Child 1] without discussion, agreement or planning on how it will work via co-parenting … [He] has taken extra time with [Child 1] without my consent but not take 50% costs of our sons needs nor has he once asked who his treating GP or dentist is.
…
…I contacted Relationships [Australia], even though I did not agree to 50-50….I am happy to continue 100% responsibility for [Child 1]s needs until [his dad] chooses to attend mediation to set a 50-50 arrangement…
22.Without diminishing the importance of various matters to Ms Froud, I note that this application is solely limited to consideration of whose care [Child 1] was in at various relevant times. Care is usually assessed based upon whose overnight care a child is in, as recognised in section 54A. Many of the matters raised by Ms Froud, including as to the respective financial positions of the parents, whether or not there was an agreed parenting plan and the relationship between the parents are not relevant to the issues arising in relation to this application. Further, although Ms Froud sought to have a parenting plan agreed to between the parents and suggested on a number of occasions that she did not agree to 50/50 care by Mr Dane, generally care recorded for child support purposes is based upon the actual care occurring. In some circumstances, where care has been occurring pursuant to a formal care arrangement, such as a court order or written parenting plan, care can continue to be recorded pursuant to that agreement for a limited period even if actual care is different. However, that does not arise in relation to this matter.
23.Further, Ms Froud referred on a number of occasions, both in contact with Child Support and the Tribunal, to her bearing 100% of the costs of [Child 1]. It would usually be expected that a person would pay the costs of a child’s accommodation, food and related expenses etc when in their overnight care and that is recognised in the usual formula for the administrative assessment of child support liability. Mr Dane’s evidence was that he did pay for such costs when [Child 1] was in his care. If Ms Froud’ position is that there are additional costs she incurred and incurs not recognised in the usual administrative assessment of child support, she has other options she may consider. However, it is not the role of the Tribunal to provide advice nor is that a relevant issue arising in relation to this application. It is a matter for Ms Froud if she wishes to pursue other options which may be available to her.
24.Child Support’s records also show a number of contacts with Ms Froud where she disagrees that the care has changed and maintains that [Child 1] is 100% in her care. On 9 April 2024, Child Support records show a conversation with Ms Froud where she states that she still has [Child 1] in her 100% care and that until Mr Dane settles on a parenting plan and pays the correct child support, then care will be staying the same. Further, Ms Froud suggests that the authors of the statements provided by Mr Dane have been known to lie many times (page 74 of Exhibit 1).
25.Further contacts with Mr Dane and Child Support show that Mr Dane maintains that he had 50/50 care of [Child 1]. On 29 April 2024, Mr Dane provided copies of text messages between Ms Froud and Mr Dane (pages 85 to 94 of Exhibit 1) on various dates back to 17 October 2023. A perusal of those text messages, to the extent relevant, is consistent with both parents having care of [Child 1] and not, as submitted by Ms Froud, consistent with her having 100% care. I accept that she did not agree to Mr Dane having care, but I am satisfied that he was nonetheless having care of [Child 1].
26.Having had regard to all of the evidence, I am satisfied that from October 2023, Mr Dane commenced having some care of [Child 1] when Mr Dane moved to [Town 1], eventually establishing a pattern of 50/50 care. As to when a pattern of care of 50/50 commenced, it is likely that it was at some point after October 2023. The statements of [Child 2] and [Ms A] suggest that it was from some time in September/October 2023. Absent specific records of whose overnight care [Child 1] was in from time to time, I am not satisfied that 50/50 care was occurring at that point in time. However, by December 2023, when Ms Froud sought to have a parenting plan agreed to, to reflect 50/50 care, I am satisfied that the pattern of care of [Child 1] had changed to 50% to Mr Dane and 50% to Ms Froud. As to the specific date, Mr Dane told me that 18 December 2023 was an arbitrary date that he picked when he spoke to Child Support. On balance I am satisfied that by 18 December 2023 at latest, there was a pattern of care of [Child 1] corresponding to 50% to Mr Dane and 50% to Ms Froud. On that basis I consider the appropriate care period is 18 December 2023 to 17 December 2024. It is likely that there may have been minor variations to that pattern from time to time as would be expected given the practicalities of everyday life. As recognised by the Guide at section 2.2.2, minor variations from the normal care of the child will not constitute a change to the pattern of care and will not result in a new care determination.
27.Having regard to all matters, I am satisfied that there was a change in the care of [Child 1] from 18 December 2023, and that for the care period 18 December 2023 to 17 December 2024, Mr Dane had care of [Child 1] corresponding to 50% and Ms Froud had care of [Child 1] corresponding to 50%.
Issue 1: Are the existing percentage of care determinations of 0% for Mr Dane and 100% for Ms Froud, in relation to the 6 February 2024 notification of a change in care, to be revoked?
28.I have found that the care of [Child 1] changed from 18 December 2023 to care corresponding to 50% to Mr Dane and 50% to Ms Froud.
29.Section 54F provides that an existing care percentages decision must be revoked if the Child Support Registrar is notified, or becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded, that the change would alter the cost percentage used for a parent in the administrative assessment, and that section 54G does not apply and section 51 does not apply or no longer applies.
30.Section 55C contains a table that is used to work out a person’s cost percentage:
Cost percentages Item
Column 1
Percentage of careColumn 2
Cost percentage1
0 to less than 14%
Nil
2
14% to less than 35%
24%
3
35% to less than 48%
25% plus 2% for each percentage point over 35%
4
48% to 52%
50%
5
more than 52% to 65%
51% plus 2% for each percentage point over 53%
6
more than 65% to 86%
76%
7
more than 86% to 100%
100%
31.Section 54G provides that a care determination must be revoked if a parent was to have at least regular care pursuant to an existing percentage of care determination and the other parent was to have more than 0% care, they have no care or less than regular care (subsection 5(2) defines regular care as being care between 14% and 35%) despite the other responsible person making care available, and the change in care was notified within a reasonable period of time. Mr Dane was not previously having at least regular care. Section 54G therefore does not apply. Section 51 also has no application in the circumstances of this matter.
32.Care of 50% to Mr Dane and 50% to Ms Froud does not correspond with the existing percentage of care determinations recorded by Child Support of 0% to Mr Dane and 100% Ms Froud. A change in care to 50% to Mr Dane and 50% to Ms Froud would change each parent’s cost percentage pursuant to the table in section 55C.
33.The existing percentages of care of 0% to Mr Dane and 100% to Ms Froud are therefore required to be revoked pursuant to section 54F.
Issue 2: What are the new percentage of care determinations for Mr Dane and Ms Froud?
34.Percentage of care determinations are required pursuant to section 50 respectively. I determine that Mr Dane’s percentage of care is 50% and Ms Froud’ percentage of care is 50%.
Issue 3: 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?
35.Pursuant to paragraph 54F(3)(b), as the change in care was notified by Mr Dane on 6 February 2024, more than 28 days after I have found the change occurred on 18 December 2023, there are different dates of effect for the revocation of the parents’ respective existing care percentage determinations. Revocation of the existing percentage of care of 0% recorded for Mr Dane takes effect the day before the date of the notification of the change of care, that is, on 5 February 2024, and revocation of the existing percentage of care of 100% recorded for Ms Froud takes effect the day before the date of change in care, that is, on 17 December 2023.
36.Pursuant to section 54B, new percentage of care determinations apply from the application day, that is, the day immediately after revocation of the previous percentage of care determinations. Therefore, a new percentage of care determination of 50% for Mr Dane applies from 6 February 2024 and a new percentage of care determination of 50% for Ms Froud applies from 18 December 2023.
37.As I have reached a different decision to that of Child Support, the decision under review will be set aside and a decision substituted.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision that, in respect of [Child 1]:
1. the existing percentage of care determination of 0% to Mr Dane is revoked from 5 February 2024 and a percentage of care determination of 50% applies for Mr Dane from 6 February 2024; and
2. the existing percentage of care determination of 100% to Ms Froud is revoked from 17 December 2023 and a percentage of care determination of 50% applies for Ms Froud from 18 December 2023.
Date of hearing: Monday 9 December 2024 Representative for the Applicant: Self-represented Representative for the Other Party: Self-represented
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