DFQR and Child Support Registrar (Child support second review)
[2025] ARTA 221
•13 March 2025
DFQR and Child Support Registrar (Child support second review) [2025] ARTA 221 (13 March 2025)
Applicant:DFQR
Respondent: Child Support Registrar
Other Parties: SZYQ
Tribunal Number: 2024/2930
Tribunal:Senior Member Trotter (second review)
Place:Brisbane
Date:13 March 2025
Decision:
The decision under review is set aside and a decision substituted that for the care period 1 September 2022 to 31 August 2023:
(a) DFQR’s percentage of care is 100%; and
(b) SZYQ’s percentage of care is 0%,
effective in the child support case from 9 June 2023.
Statement made on 13 March 2025 at 3:34pm
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 determinations upon registration of child support case – relevant care period – actual care – conflicting evidence
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)Cases
Child Support Registrar v BKCZ [2023] FCA 1109
MDXJ v Secretary, Department of Social Services [2020] FCA 1767
Hneidi v Minster for Immigration and Citizenship [2010] FCAFC 20: (2010) 182 FCR 115
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Minister for Home Affairs v G [2019] FCAFC 79; (2019) 266 FCR 569Secondary Materials
Department of Social Services, Child Support Guide (Guides to Social Policy Law, version 4.85, 14 October 2024)
Statement of Reasons
DFQR (the father) and SZYQ (the mother) are parties to a child support case registered with Services Australia – Child Support (Child Support) in relation to financial support to be provided for their three sons (born 2006, 2008 and 2009), who will be referred to as Child A, Child B and Child C respectively in these Reasons. DFQR is seeking second review in relation to a decision as to the percentages of care to be recorded for each parent for each of the children upon commencement of the child support case.
On 4 July 2023, the Respondent decided to accept an application for assessment of child support by DFQR and determined percentages of care of 100% for DFQR and 0% for SZYQ for each of the children effective from the start of the child support assessment on 9 June 2023.
On 22 September 2023, SZYQ objected to this decision on the basis that she had care of the children corresponding to 57% pursuant to a court order. On 18 January 2024, a delegate of the Respondent allowed the objection determining that percentages of care of 43% to DFQR and 57% to SZYQ applied for each of the children effective from the start of the assessment on 9 April 2023. However, the objections officer further found that as SZYQ had sought review of the decision more than 28 days after being notified of it, the date of effect of the objection decision was limited to the date of her objection, 22 September 2023.
On 24 January 2024, DFQR lodged an application with the Administrative Appeals Tribunal (the AAT) seeking first review of the Respondent’s decision.
On 24 April 2024, the AAT on first review set aside the Respondent’s 18 January 2024 decision in so far as it related to the date of effect and decided the same care percentages applied for each parent as the objections officer, that is 43% to DFQR and 57% to SZYQ, but effective from the start of the assessment on 9 April 2023 rather than from 22 September 2023.
On 8 May 2024, DFQR lodged an application with the AAT seeking second review of the decision.
On 10 July 2024, SZYQ contacted Child Support advising that a change in the care position of the children had occurred, with her having 100% care of Child B and 75% care of Child C and Child A.[1]
[1] Page 1 of Attachment to the Respondent’s SFIC.
On 10 July 2024, a determination was made by Child Support[2] that there was no change in the care of the children from 22 September 2023 with a percentage of care determination of 43% continuing to apply for DFQR and a percentage of care determination of 57% continuing to apply for SZYQ. This subsequent determination is not the subject of the Tribunal’s review in relation to this application.
[2] Pages 2 to 18 of Attachment A to the Respondent’s SFIC.
On 11 October 2024, a further change in the care position of Child C was notified with Child Support determining that the care of Child C had changed to 100% to SZYQ and 0% to DFQR from 1 May 2024.[3] This subsequent determination is also not the subject of the Tribunal’s review in relation to this application.
[3] The Respondent’s representative confirmed at hearing that this was the only subsequent change of care accepted by Child Support to date following registration.
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.
On 7 January 2025, the Tribunal wrote to all parties at their last advised addressed inviting them to attend a hearing scheduled for 11am on 6 February 2025.
On 6 February 2025, DFQR and a representative for the Respondent participated in a hearing before me conducted by telephone. The Tribunal attempted to contact SZYQ on a number of occasions on the last advised telephone number provided by SZYQ but was unable to make contact. I am satisfied that SZYQ was aware of the scheduled hearing given the letter sent to her at her last advised address on 7 January 2025 and chose not to participate. The hearing proceeded without SZYQ participating.
The following documents were admitted into evidence by me at the hearing:
·Bundle of Documents provided by the Respondent pursuant to then section 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit R1, pages 1 to 235) which included written submissions and attachments from DFQR dated 8 May 2024.
I have also taken into account the Applicant’s Statement of Facts, Issues and Contentions (SFIC) dated 3 September 2024.
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 Minister 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.
Pursuant to sections 25 and 25A, a parent or non-parent carer of a relevant child may apply for an administrative assessment of child support for a child or children. Pursuant to sections 30 and 31, if satisfied that an application has been properly made, the Respondent must accept it and must assess both parties to the child support case in respect of the costs of the child or the children and must assess the annual rate of child support payable.
Assessing the annual rate of child support payable requires application of the applicable administrative formula set out in the legislation. One of the particulars required to be determined for the applicable formula is each parent’s or non-parent carer’s child support percentage. Pursuant to section 55C of the Act, each parent’s or non-parent carer’s child support percentage is based on their percentage of care for the relevant child.
Sections 49 and 50 are applicable to determining a person’s percentage of care and 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 requires a percentage of care determination of 0% for a person with no pattern of care. If applicable, section 50 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 such period as considered appropriate having regard to all the circumstances (the care period).
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 that the actual care taking place does not correspond with the existing percentage of care determination and the requirements of the legislation are satisfied for new percentage of care determinations to be made.
Neither ‘care’ nor ‘actual care’ is defined in the legislation. However, subsection 54A(1) provides that the actual care of a child that a person has had, 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.
Where a care percentage decision is made by Child Support, a person may lodge an objection requiring Child Support to reconsider the decision. If an objection is lodged more than 28 days after the notice of the original care percentage decision was served upon the person, and there is a subsequent decision that has the effect of varying the decision or substituting a new decision, the date of effect of the review decision is the day on which the objection was lodged unless there are special circumstances that prevented the application from being made within that 28-day period: subsection 87AA of the Registration and Collection Act.
The issues which arise in relation to this application are:
(a)Did each parent have a pattern of care (or no pattern of care) of each child in the appropriate care period; and, if so, what is the percentage of care corresponding with the actual care the parent had for each child during the care period?
(b)What is the date of effect of each percentage of care determination for each child?
CONSIDERATION
DFQR’s position is that he had care of the children 100% of the time from 1 September 2022 to September 2023 and that from September 2023, the care of the children has been 50% to him and 50% to SZYQ. DFQR stated that he was talking to Centrelink about family tax benefit payments and was told he had to ring Child Support. He did not understand anything about child support or anything like that. It wasn’t his intention to start a child support case but Centrelink told him to ring them so that is what he did. He said he had no intention of asking for child support.
As noted in the Respondent’s SFIC, the Respondent’s position is that its role is confined to assisting the Tribunal in identifying and applying the relevant legislative provisions to the findings of fact made by the Tribunal and the Respondent did not advance a position as to the findings of fact to be made.
DFQR’s entitlement to FTB is not an issue before the Tribunal in relation to this application. However, notably, relevant factors taken into account in assessing a person’s entitlement to FTB include, where parents are separated, the person’s shared care percentage of a child and usually also their entitlement, if any, to child support. Further, pursuant to family assistance and child support law, care percentage determinations are aligned such that the same care percentage determinations apply for both child support and FTB purposes where the care of a child involves more than one carer.
I acknowledge that it was not DFQR’s intention to start a child support case. However, the application having been made and registered, at issue is the care percentages to be determined for each parent which are then aligned for child support and FTB purposes.
DFQR’s evidence at hearing included as follows:
(a)He and SZYQ separated in 2016 and court orders in relation to the care of the children were made on 24 April 2018, as amended on 4 July 2018[4] providing for him to have six nights’ care of the children per fortnight.
(b)From 1 September 2022, he had 100% overnight care of the children because SZYQ did not have set accommodation so that the children could reside with her. He did not keep contemporaneous records of whose care the children were in at the time. However, from memory, and as supported by a text message from SZYQ dated 26 August 2022, he had overnight care of the children from that time. The text message was as follows:[5]
I am currently unable to find a house for myself and the boys to live in. Is it ok if they stay with you from next week until I can find us a house?
(c)It was not that the children did not see SZYQ, they did, however they were staying with him at night time. SZYQ may have at times had one child overnight from time to time but she would not have had all three children overnight together during the 12 months from 1 September 2022. He is not able to say how much overnight time SZYQ had in that period. He thinks SZYQ was staying with friends during this time and one child or other might have stayed one or two nights with her here or there but it was only here or there.
(d)When queried as to whether it was possible that SZYQ might have had 50 nights’ care or more of any of the children during the 12 months from 1 September 2022, DFQR said that she definitely did not have that level of care of any of the children in that 12 months from September 2022. She did have some care here and there but there was no pattern and it was only minimal. The children usually stayed with him overnight.
(e)When queried as to text messages between him and SZYQ in April 2023,[6] DFQR said that he was moving house at the time and DFQR tried to get the real estate to consider SZYQ taking on his lease but that didn’t end up happening. DFQR said that even though as suggested by SZYQ’s text, she was hoping to have the children back with her on a permanent basis it did not occur until September 2023. It did not happen in April 2023.
(f)SZYQ obtained permanent accommodation in September 2023 and from then they shared the care of the children.
[4] Pages 18 to 21 of Exhibit R1.
[5] Page 11 of Exhibit R1.
[6] Pages 12 and 14 of Exhibit R1.
I also discussed with DFQR text messages and a flight confirmation that SZYQ provided to Child Support when lodging her 22 September 2023 objection.[7] Firstly, I observe that although section 98A of the Registration and Collection Act prevents a child from giving oral testimony for the purposes of an ART review of decision relating to the child if they are a child of a party or a party is their non-parent carer, that restriction does not include documentary evidence in the nature of text messages between such a child and another person. I have had regard to the text messages in evidence of this nature to the extent relevant.
[7] Pages 136 to 169 of Exhibit R1
I noted that the text messages seemed to be mainly text messages between SZYQ and one or two of the children. I further noted that although the text messages each indicated a date and month, no year is stated however given copies of the text messages were provided to Child Support on 22 September 2023, it would appear they predate that date such that, for example, the text messages dated October[8] were presumably from October 2022 and that the text messages dated June[9] were presumably from June 2023. I noted that the text messages overall seemed consistent with DFQR’s evidence that SZYQ was having contact with the children, particularly Child B, and was doing things like picking the children up from various places and having meals with them. I noted that the text messages did not assist in ascertaining whose overnight care the children were in other than that a couple of the text messages were suggestive that Child B had a couple of nights of overnight care with SZYQ. By way of example, I noted a text message dated 25 February,[10] between SZYQ and Child C, discussing cooking dinner and being picked up, is suggestive that Child C spent that night in SZYQ’s care. DFQR said that Child C did spend the most time with SZYQ but noted that the text message could be read either way. He said when SZYQ asks Child C if he is home and he responds that he is on the way home, it could mean that he wasn’t staying with SZYQ but it could also be read the other way. DFQR agreed that that text message, and that the text messages generally, were consistent with his evidence that SZYQ did have contact with the children and some overnight contact. However, he again stated that there was not significant overnight care, and certainly not more than 50 nights’ overnight care, by SZYQ of the children in the 12 months from 1 September 2022.
[8] Page 143 of Exhibit R1
[9] Pages 73 and 74 of Exhibit R1
[10] Page 136 of Exhibit R1
As regards the flight confirmation document provided by SZYQ to Child Support[11] suggesting that SZYQ travelled from Sydney to the Gold Coast on 26 January (presumably 26 January 2023), DFQR said that SZYQ has a sister in Sydney and he does not dispute that Child C and Child B may have travelled to Sydney with SZYQ at that time, but, again, he stated that it was only a bit of overnight care here and there in that 12-month period from 1 September 2022.
[11] Page 140 of Exhibit R1
As already noted, SZYQ was invited to but did not participate in the hearing before me. However, I note that her evidence at the first review hearing on 24 April 2024[12] is recorded as being that she had been having eight nights per fortnight care of the children pursuant to the court orders, and more recently from a year prior to that hearing, the children had been choosing to be with her for more than eight nights per fortnight. Further, SZYQ’s evidence at that hearing is recorded as being that she pays for all medical and dental expenses for the children and for all of their school costs and is the one that they call to be taken from place to place.
[12] Pages 27 to 28 of Exhibit R1
As observed by the Tribunal on first review, the evidence of DFQR and SZYQ is entirely different. DFQR’s evidence is that he had 100% overnight care of the children from 1 September 2022 to September 2023 with minor variations in that SZYQ did have some overnight care of the children but not as much as 50 nights for any of the children in that period. In support of his position, DFQR relies upon a text message from SZYQ dated 26 August 2022, not in evidence before the Tribunal on first review, as supportive of his position.
On the other hand, SZYQ’s recorded evidence on first review was that she had been having eight nights care per fortnight of the children pursuant to court orders and more care in the 12 months prior to the first review hearing.
Where there is conflicting evidence, I need to reach a conclusion one way or the other as to what care of the children was actually occurring in the appropriate care period.
As observed by the Court in Heyward v Minister for Immigration and Citizenship and Another [2009] FCA 1313 at [66], the weight to be given to, or reliance to be placed upon, different evidence is a matter for the Tribunal.
Although not determinative of what care was occurring from that time, I am satisfied that the 26 August 2022 text message from SZYQ to DFQR is consistent with DFQR’s position that the care of the children changed from 1 September 2022 until SZYQ was able to secure permanent accommodation. Further the text messages of April 2023 are consistent with SZYQ as of that date not having yet obtained permanent accommodation by that time. Those text messages were not before the Tribunal when considering the matter on first review. In conducting a fresh merits review of the matter, I have the benefit of also taking into account those text messages. Those text messages were provided to SZYQ as part of Exhibit R1 copied to her by the Respondent. As SZYQ did not participate in the hearing before me despite being invited, I was not able to hear from her in relation to those text messages. Further, SZYQ did not provide any documentary evidence to the Tribunal responsive to or in relation to those text messages.
Having taken all of the evidence before me into account, on balance I am satisfied that there was a change in the care position of the children otherwise occurring from 1 September 2022 with DFQR commencing a pattern of care of the children corresponding with 100% from that time for 12 months. I am satisfied that SZYQ did have some ad hoc overnight care of each of the children during that 12 months. However, I am not satisfied in any event that SZYQ had overnight care of any of the children corresponding to 14% or more in that 12-month period.
Issue 1: Did each parent have a pattern of care (or no pattern of care) of each child in the appropriate care period and, if so, what is the percentage of care corresponding with the actual care the parent had for each child during the care period?
Consideration is first required of the appropriate care period. The term care period is not defined in the legislation other than, as already noted, there being reference in both sections 49 and 50 to the care period being such period as considered to be appropriate having regard to all of the circumstances.
The Guide states that a care period is generally the 12-month period starting from the date the actual care of the child began or changed. However, it is recognised that there are some circumstances where determining the care over a shorter or longer care period may be more appropriate.
The Respondent submitted that a care period does not need to start from the date the child support case commences.[13] As regards to the end of the care period, the Respondent submitted that as a subsequent care determination was made by the Respondent on 10 July 2024, deciding that there was no subsequent change in care from 22 September 2023, it would not be open to the Tribunal to apply a care period that extended past 21 September 2023, being the day prior to the care period that is the subject of the subsequent carer percentage decision which does not form part of the application for review before the Tribunal and for which separate review rights exist.[14]
[13] Paragraph 36 of the Respondent’s SFIC
[14] Paragraph 37 of the Respondent’s SFIC.
In the circumstances, I consider it appropriate that the care period commence from the most recent care change of the children prior to the start date of the child support case. Further, I am satisfied that a 12-month care period is appropriate in the circumstances. The appropriate care period is therefore the period 1 September 2022 to 31 August 2023.
I have found that the care of the children changed from 1 September 2022 with DFQR having a pattern of care of the children with his actual care corresponding to 100%. As also canvassed, I am satisfied that SZYQ did have contact with the children from 1 September 2022, including some overnight care. The evidence before me does not enable me to determine exactly what overnight care SZYQ had of the children from 1 September 2022 to 31 August 2023. However, I am satisfied that SZYQ’s care did not amount to at least 14%, the percentage which would, pursuant to section 55C, impact the child support assessment.
It follows that the decision under review will be set aside and a decision substituted that for the care period 1 September 2022 to 31 August 2023:
(a)DFQR’s percentage of care is 100%; and
(b)SZYQ’s percentage of care is 0%,
effective in the child support case from 9 June 2023.
Issue 2: What is the date of effect of each percentage of care determination for each child?
My decision has the effect that the original decision of Child Support is reinstated. Section 87AA of the Registration and Collection Act has no application in those circumstances and it is not necessary for me to address this issue.
OTHER MATTERS
My decision will have the effect that percentage of care of 100% for DFQR and 0% for SZYQ will continue to apply in the assessment of child support unless and until Child Support is notified or becomes aware that the actual care taking place does not correspond with the existing percentage of care determination and the requirements of the legislation are satisfied for new percentage of care determinations to be made.
As I have observed, a further notification of a change in care was made by SZYQ on 10 July 2024 however Child Support determined that no change in care had occurred and the then existing percentages of care of 43% to DFQR and 57% to SZYQ for all children then continued. In respect of Child C, a subsequent change in care was accepted by Child Support as having occurred on 1 May 2024. As that change in care was notified on 10 October 2024, more than 28 days after the change of care was found to have occurred by Child Support, the new percentage of care of 100% for SZYQ for Child C would not have taken effect for SZYQ until 10 October 2024, however, DFQR’s new percentage of care for Child C of 0% would have taken effect from 1 May 2024, likely resulting in a suspension of the child support case for Child C between 1 May 2024 and 9 October 2024 (as the recorded care of Child C for child support purposes in that period was 0% in total). Further, the child support case for Child A terminated on his 18th birthday in June 2024.
What all this means is that following my decision, the following percentages of care will be recorded for child support purposes:
DFQR SZYQ
Child A
9 June 2023
to 18 June 2024 100% 0%Child B
9 June 2023
and continuing 100% 0%Child C
9 June 2023
to 30 April 2024 100% 0%1 May 2024 to
9 October 2024 0% 0%10 October 2024
and continuing 0% 100%Notably, DFQR’s position is that from September 2023, care of the children was week about between him and SZYQ. Further, SZYQ notified a change in care on 10 July 2024 that was not accepted such that the then existing 43% care to DFQR and 57% to SZYQ continued to be recorded. However, my decision has the effect that the existing percentage of care determinations as at 10 July 2024 are now 100% to DFQR and 0% to SZYQ. There is nothing before me to suggest that an objection has been lodged by either party to the 10 July 2024 decision but either party may still object in relation to that decision (with appropriate consideration if relevant of whether special circumstances prevented objection within 28 days). Further, either party may follow up Child Support in relation to the change in care DFQR says occurred from September 2023. Alternatively, Child Support may treat the evidence of DFQR at the hearing at which a representative for Child Support was present as it being notified that there was a further change in care that occurred in September 2023, requiring a determination by Child Support. None of these matters are before the Tribunal for review or matters in relation to which the Tribunal is able to make a decision in relation to this application. However, I mention these consequences and possibilities because of the complexity of the operation of the child support legislation in relation to recorded percentage of care determinations, particularly when, as here, decisions made subsequently may impact the position of the parties in relation to other decisions, or matters, not the subject of the application before the Tribunal.
DECISION
The decision under review is set aside and a decision substituted that for the care period 1 September 2022 to 31 August 2023:
(a) DFQR’s percentage of care is 100%; and
(b) SZYQ’s percentage of care is 0%,
effective in the child support case from 9 June 2023.
Date of hearing: 6 February 2025 Applicant: Self-Represented Other Party: No attendance Representative for the Respondent: Ms Donna Smith
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