Eldritch and Singleton (Child support)
[2025] ARTA 509
•28 February 2025
Eldritch and Singleton (Child support) [2025] ARTA 509 (28 February 2025)
Applicant/s: Mr Eldritch
Respondent: Child Support Registrar
Other Parties: Ms Singleton
Tribunal Number: 2024/SC028810
Tribunal: Senior Member A Suthers
Place:Perth
Date:28 February 2025
Decision:The decision under review is set aside and, in substitution, the existing percentages of care will not be revoked in accordance with the notification of change by Ms Singleton on 30 January 2024.
This decision will have effect on and from 4 November 2024.
CATCHWORDS
CHILD SUPPORT – percentage of care – change to the likely pattern of care – withholding care – existing percentage of care determinations not revoked – child moved overseas away from parents – parents retained caring authority – written billeting agreement – 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
SUMMARY
The Child Support (Assessment) Act 1989 (the Act) provides for Services Australia – Child Support (Child Support) to make an administrative assessment of child support. Child Support does so by reference to the relevant legislation and to the Child Support Guide (the Guide), published by the Australian Government, where relevant. The Guide contains governmental guidelines and statements of policy as to how the relevant legislation is to be applied.
Under sections 25 and 25A of the Act, a parent or non-parent carer of a relevant child may apply for an administrative assessment. If the necessary conditions are met, Child Support must make the assessment using a formula containing variables such as the adjusted taxable incomes of the parties to the assessment (the parties) and the respective percentages of care the parties have provided, or are likely to provide, for each relevant child, in the ‘care period’ that Child Support decides it is appropriate to consider.
Child Support usually considers a care period of 12 months from when the actual care of a child began or changed: subparagraph 50(1)(b)(ii) of the Act and section 2.2.1 of the Guide. If the assessment is made before the end of the care period, Child Support must make a partially forward-looking judgment as to the care of each relevant child a party to the assessment is likely to provide over the period.
In doing so, Child Support considers whether the parties have had, or are likely to have, a ‘pattern of care’ for the child during the care period. The pattern of care informs the assessment of the ‘percentage of care’ used in the formula. The pattern and percentage of care will commonly be determined by reference to the number of nights each child spends in the care of each party to the assessment: section 54A of the Act and section 2.2.1 of the Guide.
Once an assessment of the percentage of care is made and applied in the formula, Child Support continues using that percentage of care until it is informed or becomes aware that an anticipated pattern of care did not eventuate, or that it did eventuate but subsequently changed.
If notified of an alleged change in the actual or anticipated pattern of care of a child, Child Support must consider whether such change occurred. If Child Support is satisfied that it did, then the percentages of care used in the assessment may, or in some cases must, be revoked (sections 54F, 54G and 54H of the Act) and another assessment made using newly determined percentages of the actual care the parties provided or are likely to provide to the child in a newly determined care period: subsection 49(2) and paragraph 50(1)(b) of the Act.
Mr Eldritch and Ms Singleton are the parents of [Child 1], who is 16 years old. A child support case was registered with Child Support in 2016. Mr Eldritch has been recorded as providing 90% care for [Child 1] since 7 October 2016, with Ms Singleton providing the balance (10%) of care since 7 October 2016.
On 30 January 2024, Ms Singleton notified Child Support that a change to the care arrangements for [Child 1] had occurred from 1 September 2023. In summary, [Child 1] had moved overseas to take up a sporting opportunity and was living day-to-day with a host family. Ms Singleton asserted that [Child 1] was no longer in either parent’s care, as a result. On 27 March 2024, an original decision maker accepted that change, and recorded updated percentages of care of 0% to Mr Eldritch and 0% to Ms Singleton (the original decision).
The Child Support (Registration and Collection) Act 1988 (the R&C Act) provides that the parties to the assessment may lodge an objection to a care percentage decision by Child Support that informs the assessment and that certain persons can seek review of the decision on the objection by application to the Tribunal.
That has occurred here. An objections officer considered an objection lodged by Mr Eldritch on 28 March 2024 (which was within the prescribed time to do so), and on 3 June 2024 refused the objection, thereby affirming the original decision.
On 4 November 2024, Mr Eldritch lodged an application for review of the objections officer’s decision (which was not within the prescribed time to do so). That is the application before me.
I heard the matter on 26 February 2025 and heard evidence and submissions from Mr Eldritch and Ms Singleton. Child Support elected not to participate in the hearing. I also had regard to the documents lodged in the application, as follows:
· 189 numbered pages lodged by Child Support; and
· 34 numbered pages lodged separately by Mr Eldritch.
In brief, the parties’ respective positions are that:
(a) Mr Eldritch says that whilst [Child 1] is no longer living with him full time, the care provided by his host family is provided on the basis of his delegated authority, and pursuant to a written agreement, and he meets all of [Child 1’s] ongoing expenses and maintains parental authority for [Child 1];
(b) Ms Singleton does not disagree but says that Mr Eldritch makes decisions for [Child 1] unilaterally and she tries to accommodate [Child 1’s] needs. She simply cannot afford to contribute more than she has to date.
For the following reasons, I will set aside and reverse Child Support’s decision on the objection.
SUMMARY OF THE LAW, RELEVANT POLICY, AND THE ISSUES TO BE DETERMINED
As this is a ‘statement of reasons’ I am required, amongst other things, to explain the reasons for the decision. To do so, it is necessary to set out, to an extent, the law and relevant policy to be considered.
I have jurisdiction and power to conduct this review due to the combined effect of sections 80A, 87 and item 2 of the table in section 89 of the R&C Act, read with sections 12 and 105 of the Administrative Review Tribunal Act 2024 (the ART Act).
In conducting the review, I should also have regard to the Guide and apply the policy contained in it where relevant, so long as what it contains is lawful, does not purport to control my decision and there are no cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; G v MIBP [2018] FCA 1229; Minister for Home Affairs v G and Another [2019] FCAFC 79 at [57] – [62]. However, I am not bound to follow it, and will record any instance where I disagree with what the Guide contains.
I ‘stand in the shoes’ of the original decision maker, in that I am to determine for myself on the material before me the decision which can, and which I consider should, be made in the exercise of the power or powers conferred on the original decision maker for the purpose of making the original decision. However, as section 9 of the ART Act makes clear, the Tribunal makes its decision on review independently of the parties, and the original decision maker. The Tribunal is also subject to the same constraints as the original decision maker: Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 at [51] discussing relevantly indistinguishable provisions of the, now repealed, Administrative Appeals Tribunal Act 1975.
Not all changes to a care percentage determination will effect a corresponding change in the child support assessment. That is because the care percentages are then broken down into seven ‘cost percentage’ brackets and, for example, a party with anything less than a 14% care percentage is still assessed at a 0% cost percentage. A simplified table that amalgamates the content of section 55C and subsection 5(2) of the Act, and that links defined and otherwise commonly described levels of care, makes this clearer:
| Care percentage | Equal to number of nights a year | Care level | Cost percentage |
| 0% to less than 14% | 0 - 51 | Less than regular care | 0% |
| 14% to less than 35% | 52 - 127 | Regular care | 24% |
| 35% to less than 48% | 128 - 175 | Shared care | 25% plus 2% for every percentage point over 35% of care |
| 48% to 52% | 176 - 179 | Shared care | 50% |
| More than 52% to 65% | 190 - 237 | Shared care | 51% plus 2% for every percentage point over 53% of care |
| More than 66% to 86% | 238 - 313 | Primary care | 76% |
| More than 86% to 100% | 314 - 365 | More than primary care | 100% |
‘Care’ is not defined in the legislation. The level of care provided by a responsible person for a child is a question of fact to be determined in each case by reference to the particular facts and circumstances: P v Child Support Registrar (2013) 62 AAR 17 at [107].
Whilst the parties’ respective percentages of care may, and commonly will, be assessed based on the respective nights the child spends in their care, that is not mandatory. If a more appropriate basis for assessment of that issue is identified and is based on permissible considerations, it may be used: P v Child Support Registrar [2014] FCAFC 98.
Some assistance as to the factors that may be considered if a strictly ‘nights in care’ basis for assessment is not used was provided by the Court in Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959 (Polec) at [56]. The Court gave some non-exhaustive guidance, stating:
In my view, in determining whether and to what extent a person has care of a child for the purpose of the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988, it is necessary to consider the following:
a.To what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra curricular activities?
b.To what extent does the person make arrangements for others to meet the needs of the child?
c.To what extent does the person pay for the costs of meeting the needs of the child?
d.To what extent does the person otherwise provide financial support for the child?
e.To what extent does the child provide for his or her own needs or have those needs met from another source?
f.To what extent is the child financially independent or financially supported from another source?
Having regard to the statutory scheme, I respectfully agree that those are all permissible considerations if the evidence or submission of the parties warrants their consideration.
In addition, whilst adopting the court’s findings in Polec, above, the Guide, at 2.2.1, also notes that a relevant consideration is the extent to which a person has control of a child, including having overall responsibility for a child and making:
· major decisions relating to who the child spends time with, and the child's health, education, discipline, recreational and/or social activities; and
· arrangements for others to meet the needs of the child (delegated care).
Again, I agree that those are permissible considerations.
If I revoke the existing care percentages on review and redetermine them, the relevant care period is such period as I consider to be appropriate having regard to all the circumstances: subparagraph 50(1)(b)(ii) of the Act. Whilst section 2.2.1 of the Guide provides that a care period is generally assumed to apply for the subsequent 12-month period from when the actual care of a child began or changed, a different care period may be appropriate depending upon the circumstances of the case.
The date of effect of any changes in the assessment may be affected by:
(1) when Child Support was notified of the change of care: subsections 54F(3) and 54H(3) of the Act;
(2) whether the objection was lodged within 28 days of the original decision: section 87AA of the R&C Act; and
(3) whether the application to the Tribunal was made within 28 days of the objection officer’s decision: section 95N of the R&C Act.
unless special circumstances prevented the lodgment of the objection or the application for review in time: sections 87AA and 95N of the R&C Act.
I am to review all the evidence before me (from whatever source), determine the relevant facts (including by resolving any disputed assertions of the parties that need to be determined), and independently decide afresh whether I can be satisfied that a material change of care has occurred. I say ‘material change of care’ because not every minor change to the day-to-day care arrangements of a child represents a change to the overall pattern of care: see the Guide at 2.2.1.
If I revoke the existing percentages of care and re-determine them by assessing the pattern of care in the relevant care period, I need to consider the evidence as to the actual care that the child was receiving in the care period to date and, to the extent it may be relevant, the pattern of care likely to occur in the balance of the care period.
The issues which potentially arise in this case are as follows:
(1) Was there a change in the pattern of care for [Child 1], and if so when did it occur?
(2) If there was a change in the pattern of care, should the existing percentages of care be revoked?
(3) If so, what new determination of percentages of care should be attributed to the parties in respect of the child?
(4) If there is a change in the percentage of care attributed to the parties, from what date should the administrative assessment be amended to reflect the changes?
(5) When will my decision have effect?
Mr Eldritch’s evidence
Mr Eldritch’s oral evidence was similar to that outlined above. He maintains that he cares for [Child 1] in accordance with the manner acknowledged in the Guide, for older children who live away from home.
In that regard, the Guide, at section 2.2.1, states:
Older children living away from home
Generally, older children who live independently and separately from their parents or carers provide for many of their own needs. This may include meeting their own ongoing daily needs (such as meal preparation, transport, socialising, etc.) as well as making their own decisions about their daily activities, schooling and health issues. Therefore, it may be difficult to establish whether a person provides care for an older child support child who lives separately from that person.
Where a person provides substantial financial support to an older child support child living away from home, the Registrar will generally consider that financial support as an indicator that the person is continuing to provide care for the child. The support can be in relation to daily costs such as food, accommodation and transport, and/or longer term costs such as school fees, paying for airfares home for holidays, clothing, health and dental care, etc.
While financial support is often a key factor in determining whether a person cares for a child who lives away from home, it will not always be the sole determinant. In cases where the financial support provided is limited, and other factors exist that suggest that the person continues to care for the child, the Registrar will consider whether the person is actively involved in major decisions relating to the child. For example, decisions relating to the child's health, schooling, relationships, career, etc. may be indicators that the person continues to provide care for the child.
In support of that position, Mr Eldritch relies on:
· The written billeting agreement between him and [Child 1’s] school (also signed by [Child 1] but not binding on him as a child) wherein Mr Eldritch acknowledges that ‘[b]y signing below, you convey your understanding and agreement of the aforementioned billet family, student athlete, and student athlete family expectations as set forth by the […] Academy and will make every effort to respect and fulfill your obligations’; and
· A significant bundle of receipts and tabulated expenses he has paid for [Child 1’s]s benefit, since [Child 1] moved overseas.
Mr Eldritch acknowledges that Ms Singleton has also visited and spent time with [Child 1] overseas, and made a contribution of $15,500 toward [Child 1’s] schooling expenses.
As an example of his ongoing parental authority over [Child 1], and that of Ms Singleton, Mr Eldritch recounts a recent example of [Child 1] asking to attend a counsellor. Mr Eldritch made enquiries, chose the counsellor [Child 1] would see, consulted with Ms Singleton, and they jointly authorised treatment for [Child 1], which Mr Eldritch pays for.
Mr Eldritch also confirmed that [Child 1] spent over three of the 12 months after moving overseas back in Australia during school holidays, and spent that time predominantly in his care. He acknowledges, though, that Ms Singleton also provided care to [Child 1] in that period.
Ms Singleton’s evidence
Ms Singleton’s oral evidence also confirmed her position as advised to Child Support and recorded above. She did not challenge Mr Eldritch’s evidence.
Was there a change in the pattern of care for the child, and if so when did it occur?
There is no doubt that a change to the pattern of care occurred when [Child 1] moved overseas on 1 September 2023. The way he was cared for changed significantly at that time.
Should the existing percentages of care be revoked?
Subdivision C of Division 4 of Part 5 of the Act outlines circumstances where an existing care determination must or may be revoked.
Section 54F of the Act states that an existing determination must be revoked if there is a change to a parent’s level of care that would change their care percentage and their cost percentage and section 54G of the Act does not apply.
Section 54G of the Act provides for mandatory revocation of both parties’ percentage of care determinations where, under a new care percentage determination, one of the parties who was previously assessed to have at least regular care of the child would now be determined to have less than regular care, despite the child being made available by the other party. The notifying party must also make the notification within a period that Child Support considers ‘reasonable’ from the change occurring. A reasonable period is not defined, but Child Support usually considers 28 days reasonable: the Guide at 2.2.3.
Section 54H of the Act allows for discretionary revocation of care percentages where the new care percentage determination affects the care percentage but would not change the cost percentage, and certain other conditions are met.
To consider whether any of those provisions apply, it is first necessary to decide what the parties’ new care percentages would be, if re-determined.
In that regard, I am satisfied that the 12 months after [Child 1] moved overseas is the appropriate care period to consider.
This is not a case where it is appropriate to assess care strictly on a nights in care basis, and there is sufficient evidence available to determine the issue using the other factors recognised in the Guide and incorporating the Court’s comments in Polec.
I accept that Mr Eldritch retains the primary responsibility for making major decisions relating to [Child 1’s] health and education, and that he is the person making arrangements for [Child 1’s] host family to meet [Child 1’s] day-to-day needs. Mr Eldritch is also meeting almost all of [Child 1’s] costs, with a contribution having been made by Ms Singleton, who also remains involved in ensuring [Child 1’s] wellbeing by visiting and keeping in contact with him.
Given the disparate relevant factors that go toward an assessment of the parties’ respective percentages of care if a ‘nights in care’ basis is not used, it would be artificial to attempt to take each factor individually and assign some particular value to that aspect of care and to thereby compare it in a mathematical sense to other aspects of care provided by the other party. Instead, it is appropriate to adopt a ‘broad brush’ approach to the assessment. A similar approach was adopted in earlier decisions of the former Administrative Appeals Tribunal regarding a pattern of care in respect of family tax benefit assessments: see, for example, Warne and Secretary, Department of Family, Community Services and Indigenous Affairs and Anor [2006] AATA 159 at [25].
Assessing care in that manner, I am satisfied that, if re-determined, the parties’ respective percentages of care would remain at 90% to Mr Eldritch, and 10% to Ms Singleton.
As a result, none of sections 54F, 54G or 54H are engaged, and the existing care percentage determinations should not be revoked.
However, section 95N of the R&C Act then needs to be considered. It provides that if I vary or substitute a care percentage decision on review, and the application for review in the Tribunal was made more than 28 days after the objection decision was given, then my decision is taken to have had effect on and from the day the application for review was made unless subsection 95N(2) of the R&C Act applies.
Subsection 95N(2) of the R&C Act provides that I can decide to allow such longer period as I determine to be appropriate for lodgment of the application for review, if there are special circumstances that prevented the application being made in time.
Whilst he found the process of dealing with Child Support over this issue stressful, Mr Eldritch acknowledges that there were no special circumstances that prevented him lodging his application within 28 days. I find accordingly.
DECISION
The decision under review is set aside and, in substitution, the existing percentages of care will not be revoked in accordance with the notification of change by Ms Singleton on 30 January 2024.
This decision will have effect on and from 4 November 2024.
| Date(s) of hearing: | Wednesday, 26 February 2025 |
| Representative for the Applicant: | Self-represented |
| Representative for the Other party: | Self-represented |
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