Drebchev and Drebchev (Child support)
[2025] ARTA 929
•7 April 2025
Drebchev and Drebchev (Child support) [2025] ARTA 929 (7 April 2025)
Applicant/s: Mr Drebchev
Respondent: Child Support Registrar
Other Parties: Ms Drebchev
Tribunal Number: 2024/MC028962
Tribunal: Member S Letch
Place:Brisbane
Date:7 April 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides that care for both [Child 1] and [Child 2] should be recorded as 100% to Ms Drebchev and 0% to Mr Drebchev from 9 April 2024 (and not from 1 January 2024 so far as the decision relates to [Child 1]).
CATCHWORDS
CHILD SUPPORT – percentage of care – change to the likely pattern of care – independent third party statement – existing percentage of care determinations 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
Mr Drebchev and Ms Drebchev are the parents of [Child 1] and [Child 2]. This matter concerns a decision by Child Support about their recorded care.
It is convenient by way of background to set out some extracts from the objections officer’s decision dated 4 November 2024:
SUMMARY OF OBJECTION DECISION
The outcome of this decision is that it has been disallowed.
We have made the decision to reflect the care of [Child 1] as 100% to [Ms Drebchev] and 0% to [Mr Drebchev] from 1 January 2024, as notified on 30 April 2024; and
To reflect the care of [Child 2] as 100% to [Ms Drebchev] and 0% to [Mr Drebchev] from 9 April 2024, as notified on 30 April 2024
The effect of the objection decision is: there will be no changes to the assessment
…
DECISION UNDER REVIEW
The decision we made on 12 September 2024 to reflect the care of [Child 1] as 100% to [Ms Drebchev] and 0% to [Mr Drebchev] from 1 January 2024, notified on 30 April 2024; and
To reflect the care of [Child 2] as 100% to [Ms Drebchev] and 0% to [Mr Drebchev] from 9 April 2024, notified on 30 April 2024[Mr Drebchev] has objected to this decision because he stated that he still had care of [Child 1] and [Child 2] up to 12 August 2024. [Mr Drebchev] confirmed that from 13 August 2024, both [Child 1] and [Child 2] have been in [Ms Drebchev’s] care 100%.
…
WE CONSIDERED THE FOLLOWING EVIDENCE IN THE DECISION
The pre-existing care for [Child 1] and [Child 2] was reflected as 244 nights (67%) with [Ms Drebchev] and 121
nights (33%) with [Mr Drebchev] from 30 January 2023.On 30 April 2024, [Ms Drebchev] notified us of a care change for [Child 1] as 100% to [Ms Drebchev] and 0% to [Mr Drebchev] from 1 January 2024; and a care change for [Child 2] as 100% to [Ms Drebchev] and 0% to [Mr Drebchev]
from 9 April 2024.
…
We made a decision on 12 September 2024 to reflect the care of [Child 1] as 100% to [Ms Drebchev] and 0% to [Mr Drebchev] from 1 January 2024, and to reflect the care of [Child 2] as 100% to [Ms Drebchev] and 0% to [Mr Drebchev] from 9 April 2024, as notified on 30 April 2024, based on the information we had available at the time. [Mr Drebchev] has questioned the validity of this decision and advised he would supply evidence to support his claims.
Both parties had the opportunity to contribute any evidence to this decision throughout this
objection process. There has been no evidence provided from either party to demonstrate that the care of [Child 1] and [Child 2] was different from the decision we have made.Therefore, we make the decision to reflect the care of [Child 1] as 100% to [Ms Drebchev] and 0% to [Mr Drebchev]
from 1 January 2024, notified on 30 April 2024; and
To reflect the care of [Child 2] as 100% to [Ms Drebchev] and 0% to [Mr Drebchev] from 9 April 2024, notified on 30 April 2024.The objection is disallowed.
Mr Drebchev and Ms Drebchev participated in the Tribunal’s hearing by conference telephone.
In summary, Mr Drebchev told the Tribunal that he stands by his calendar record of the nights he had both children (with some very minor variation where he accepted both children did not stay overnight at the same time). He rejected the suggestion that his recorded nights included nights where the children had dinner but did not stay overnight; all the nights he has recorded involved overnight stays (sometimes with friends, but under his supervision). He disputed the reliability of statements put forward by Ms Drebchev in support of her case from parties without first-hand knowledge of what was going on with the children. In particular, he questioned the reliability of the statement from [Doctor A] (folio B18), including her knowledge of the arrangements being based on “hearsay” only.
Mr Drebchev pointed to a file record at folio 104 of the hearing papers in which Child Support recorded that Ms Drebchev advised “Both the children have not stayed more than 52 nights with [Mr Drebchev] since January 2024…”. Ms Drebchev suggested that had been “misinterpreted’ on the basis she had been asked whether Mr Drebchev had an average of at least 52 nights per year.
Mr Drebchev submitted that in circumstances where it was not possible to form a conclusive view about the care for the children; he understands, from information given to him from Child Support, that the default position is that the terms of a Court Order are adopted, which should result in the care determination in place for the children prior to January 2024 not being revoked (indeed, he suggested he has calculated his care as 36%).
In short, Ms Drebchev conceded [Child 1] stayed nights with Mr Drebchev in January 2024; however, he stayed no further nights after that apart from one night in April 2024. In relation to [Child 2], she said she could have claimed Mr Drebchev had far less care from much earlier but selected April 2024 instead. She said the last night [Child 2] spent in Mr Drebchev’s overnight care was around 8 April 2024; after that, he only spent two more nights in July 2024.
Application of the law
Care percentage determinations are governed by Subdivision B of Division 3 of Part 5 of the Child Support (Assessment) Act 1989. In very simple terms, if there is a change in the pattern, or likely pattern, of care, an existing determination is revoked and replaced by a new determination. It is important to observe that each care change is the subject of a separate notification and a separate decision.
In Child Support Registrar v BKCZ [2023] FCA 1109, it was held that when “looking back”, the Tribunal was obliged to adopt an approach incorporating a consideration of events occurring after the date of notification of the change.
There was limited agreement between the parties. Both of their accounts about overnight care for the children cannot be correct.
Generally speaking, evidence from friends or family members must be weighted on the basis that such statements are not made at arm’s-length. Similarly, statements from parties who could have no first-hand knowledge of where a particular child was staying on a particular night must be evaluated in that context. Both parties have submitted statements which arguably provide limited evidentiary value.
I note these determinations are based on nights in care. On nights where Mr Drebchev had the children for dinner, but not overnight, those nights would not be included in the calculation.
Ms Drebchev conceded that [Child 1] spent some nights with Mr Drebchev in January 2024, and then later for one night in April; she says the last night [Child 2] spent in Mr Drebchev’s overnight care occurred on 8 April 2024.
[Doctor A] (Ms Drebchev’s, and the children’s, GP) is an independent third party. [Doctor A’s] statement records not only Ms Drebchev’s representations to her, but [Child 1’s] representations. She reports that she had not seen [Child 2] for some time. I am inclined to give [Doctor A’s] statement more weight than statements submitted by family members and friends. [Doctor A’s] evidence about statements from Ms Drebchev and [Child 1] are hearsay; however, I am inclined to give her evidence more weight than statements from parties not at arm’s-length.
In weighing the evidence available to me, I consider it likely that the care arrangements began to change and become more sporadic based on the preferences of the children from January 2024; by 8 April 2024, I consider that apart from perhaps some occasional and ad hoc nights, and nights where the children had dinner with Mr Drebchev but did not stay overnight, the pattern of care had crystallised to the point where it could reasonably be determined that care had changed to 100% care for Ms Drebchev from 9 April 2024. I consider the existing care percentages should be revoked and replaced from 9 April 2024.
As this is a different conclusion to the objections officer, the decision under review will be set aside.
DECISION
The Tribunal sets aside the decision under review and in substitution decides that care for both [Child 1] and [Child 2] should be recorded as 100% to Ms Drebchev and 0% to Mr Drebchev from 9 April 2024 (and not from 1 January 2024 so far as the decision relates to [Child 1]).
| Date of hearing: | Wednesday 26 March 2025 |
| Representative for the Applicant: | Self-represented |
| Representative for the Other Party: | Self-represented |
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