Emerson and Searle (Child support)
[2024] ARTA 440
•16 December 2024
Emerson and Searle (Child support) [2024] ARTA 440 (16 December 2024)
Applicant/s: Mr Emerson
Respondent: Child Support Registrar
Other Parties: Ms Searle
Tribunal Number: 2024/SC028521
Tribunal: Member A Suthers
Place:Sydney
Date:16 December 2024
Decision:The Tribunal sets aside the decision under review and, in substitution, decides that the care percentages of 21% to Mr Emerson and 79% to Ms Searle will not be revoked based on the notification to the Registrar made by Ms Searle on 23 February 2024.
CATCHWORDS
CHILD SUPPORT – percentage of care – small, occasional changes in actual care – child’s increasing reluctance to spend time with father – no independent or documentary evidence – available evidence suggests both parents maintain established pattern with some flexibility – decision under review set aside
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
Mr Emerson and Ms Searle are the parents of [a child], who is 10 years old. A child support case was registered with Services Australia – Child Support (Child Support) in 2018. Mr Emerson has been recorded as providing 21% care for the child since 2018, with Ms Searle providing the balance (79%) of care.
The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of child support using a formula containing variables such as the parents’ adjusted taxable incomes and their respective percentages of care for their child.
On 23 February 2024, Ms Searle notified the Child Support Registrar (Registrar) that a change to the care arrangements for the child had occurred from 1 January 2024. On 2 April 2024, an original decision-maker accepted that change, and recorded updated percentages of care of 10% to Mr Emerson and 90% to Ms Searle. The decision was made in the absence of any input from Mr Emerson, who had failed on three occasions to respond to the Registrar’s requests for information.
The Child Support (Registration and Collection) Act 1988 (R&C Act) provide that the parties to the assessment may lodge an objection to a care percentage decision by the Registrar that informs the assessment and for certain persons to be able to seek review of the decision on the objection by application to the Tribunal.
That has occurred here. An objections officer considered an objection lodged on 17 April 2024, and on 19 August 2024 disallowed the objection, thereby confirming the original decision. Specifically, the objection decision noted that ‘[t]he evidence from each parent conflicts. The only period they agree is the December/January school holidays. In this case, we have not received any substantive evidence, which confirms what the actual care is, therefore on objection we are satisfied that an alternative decision cannot be made.
On 5 September 2024, Mr Emerson lodged an application for review of the objection officer’s decision. That is the application before me. I heard the matter on 3 December 2024.
It is not in dispute that Mr Emerson had an established ‘pattern of care’ (as described in the Act) prior to Ms Searle notifying the Registrar that a change to that pattern occurred. I am satisfied that was the case based on the prior, unchallenged, assessment and the Court orders between the parties.
In brief, the parties’ respective positions are that:
(a) Mr Emerson says that he still predominantly cares for [the child] in accordance with consent orders entered into in 2018, which is two nights each fortnight (the orders provide for 3 nights each fortnight), and one-half of school holidays, as evidenced by a statement of a [Ms A]; however
(b) Ms Searle maintains that this has not been happening. Depending on [the child]’s sport on the weekend Mr Emerson may only have [the child] for Friday night only. She agrees that he had care over the last December/January holidays.
For the following reasons, I am not persuaded a change of care has occurred and will set aside and reverse the Registrar’s decision on the objection.
Simplified summary of the law 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. However, because the parties did not put the identification, interpretation or application of that law and policy in issue, I will only provide a simplified summary of the law and the issues to be determined.
On 14 October 2024 the Administrative Appeals Tribunal (AAT), to which this application was initially brought, was replaced by the Administrative Review Tribunal (the Tribunal). An application for review by the AAT that was not finalised before 14 October 2024 is taken to be an application for review by the Tribunal, and the Tribunal has the authority to continue and finalise any aspect of the review that was not completed by the AAT: Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024.
I am satisfied that I have jurisdiction and power to conduct this review due to the combined effect of ss 80A, 87, 90(2) and item 2 of the table in s 89 of the R&C Act, read with ss 12 & 105 of the Administrative Review Tribunal Act 2024 (ART Act).
The parties’ respective percentages of care may, and commonly will, be assessed based on the respective nights the child spends in their care (the Act, s 54A and the ‘Child Support Guide’ published by the Australian Government), but 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.
The core issue in this application is whether the care provided by the parents to [the child] has differed from the existing care percentage determinations.
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 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 Child Support Guide at 2.2.1.
If the pattern of care has changed, the current care percentages determinations may, and in some cases must, be revoked.
In that event, the issues which then arise for determination are:
(a) What new determination of percentages of care are to be attributed to the mother and father in respect of the child? and
(b) From what date should the administrative assessment be amended to reflect the changes?
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 ss 55C and 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 – 13% | 0 - 51 | Less than regular care | 0% |
| 14 - 34% | 52 – 127 | Regular care | 24% |
| 35 - 47% | 128 - 175 | Shared care | 25% plus 2% for every percentage point over 35% of care |
| 48 – 52% | 176 - 179 | Shared care | 50% |
| 53 – 65% | 190 - 237 | Shared care | 51% plus 2% for every percentage point over 53% of care |
| 66 – 86% | 238 - 313 | Primary Care | 76% |
| 87 – 100% | 314 - 365 | More than primary care | 100% |
Subdivision C of Division 4 of Part 5 of the Act outlines circumstances where an existing care determination must or may be revoked.
If I was satisfied that a change of care in the nature of that accepted by the Registrar had taken place, it is s 54G of the Act that would first need to be considered. Section 54G provides for revocation 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. If Ms Searle’s assertions are to be accepted at face value, and at their highest, Mr Emerson commonly only had care for one night each fortnight and for one half of the last December/January holidays (as gazetted and without taking into account an extra week allowed at [the child]’s school). As there are 6 weekends in that school holiday period, that would evidence Mr Emerson providing 40 nights of care each year (1 night per fortnight X 20 fortnights + 20 nights representing one half of the December/January holidays).
However, it is first necessary to consider whether I can be reasonably satisfied that a change of care occurred.
Mr Emerson’s evidence
In that regard, Mr Emerson’s oral evidence was similar to that outlined above. He maintains that he cares for [the child] largely in accordance with the Court orders. He picks [the child] up each alternate Friday from School and Ms Searle collects [the child] from him on the Sunday unless he has otherwise taken [the child] to sport on a Sunday.
In support of that position, he relies on a series of text messages between him and Ms Searle, (from pp 87 – 100 of the bundle of documents provided by Child Support) which demonstrates that they have been in regular contact throughout late 2023 and early 2024 with regards to arranging [the child]’s care. Whilst those text messages do not prove anything in regard to the actual nights [the child] has spent in Mr Searle’s care, they do evidence a regular pattern of care being provided by him, and that the parties negotiate flexible arrangements to suit their, and [the child]’s, needs as appropriate. They also provide some evidence of the parties engaging in a form of give and take negotiating, whereby time with [the child] forgone on an occasion is made up elsewhere. Nowhere in the messages is there any evidence of complaint or comment by Ms Searle that Mr Emerson is not exercising his periods of care allocated under the Court orders. An example, at page 88 of the bundle of documents provided by Child Support relates to the Easter holidays in 2024. Mr Emerson says there may have been a Friday that he missed, but he cannot recall one. In addition to the alternate weekend arrangement, the parties share public holidays. Mr Emerson says he spends one half of the NSW public school gazetted holidays with [the child], although he acknowledges that [the child] has longer holidays as she attends a private school.
Mr Emerson also provided a statement by [Ms A], a family friend, dated 11 July 2024. Relevantly, that statement provides:
Mr Emerson has consistently fulfilled his fortnightly fatherly duties, ensuring that he spends quality time with [the child] on all weekends as agreed. Contrary to the assertion that he only has her for Friday night due to his work commitments, he has never missed picking her up. In fact, he often drives one hour and sometimes even two hours, to ensure he is there for her. Additionally, he takes her to her basketball games and brings her home afterward, supporting her interests and encouraging her athletic development.
Ms Searle’s evidence
Ms Searle’s oral evidence was that Mr Emerson does not have three nights each fortnight, but I note that is not in dispute. She says that, as [the child] is getting older, she is increasingly reluctant to spend time with Mr Emerson. She acknowledged, though, that Mr Emerson has spent two nights each fortnight with [the child] and one-half of the public school gazetted holidays only. She has provided no independent or documentary evidence to support her assertions throughout the process. Whilst Ms Searle alleged recent inconsistencies in Mr Emerson exercising his time with [the child], she could not provide any specific example of that. She thinks, though, that Mr Emerson’s time may become more erratic next year as [the child]’s sporting commitments increase.
Assessing the evidence as to a change of care
The Tribunal acts in an inquisitorial fashion and is not bound by the rules of evidence: ART Act, s 52. There is no legal onus of proof on a party where no such onus is imported by the referring legislation. However, the Tribunal’s inquisitorial role does not mean that a party can simply present what are said to be facts and leave it to the Tribunal to search out the truth of any and all allegations, in effect shifting the burden of providing the evidence in support of their position to the Tribunal. Rather, the Tribunal’s role is to respond to the case that the party advances: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389; at [78].
The position, outlined by the Full Bench of the Federal Court in McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354 at 357, is that even where there is no onus of proof in administrative decision making of this nature a party asserting a claim and addressing a relevant statutory provision needs to ensure that sufficient probative evidence is before the decision-maker to support the claim.
If, as is the case here, a party needs to rely on a legislative provision to effect a change to an established position, then the absence of sufficient probative evidence to demonstrate a change of care has occurred will lead to the original notification of change of care not being accepted. That is simply a “common sense approach”: McDonald.
In considering the evidence before it, the Tribunal needs to reach its conclusions based on “rationally probative evidence” rather than mere “suspicion or speculation”: Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666 at 685.
The evidence produced by the parties ‘is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted’: Coshott v Prentice [2014] FCAFC 88; (2014) 221 FCR 450 at [80], quoting Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970.
Weighing the evidence, I am not reasonably satisfied that a change of care as notified by Ms Searle to the Registrar, or otherwise, has occurred. Whilst I give some weight to the statement of [Ms A] in that it supports a level of consistency of approach by Mr Emerson, that weight is limited given her lack of specificity as to what has occurred and of her knowledge as to what Mr Emerson’s ‘fortnightly fatherly duties’ entail. However, I find the text messages passing between the parties persuasive as to there being an ongoing pattern of care of [the child] by Mr Emerson that focusses on both parties maintaining an established pattern whilst allowing flexibility on a give and take basis. Whilst that is not conclusive as to exactly what has occurred, it leaves me unpersuaded that Ms Searle’s bare assertions as to a change of care are correct, where those assertions are directly in contrast to those of Mr Emerson and Ms Searle generally acknowledges that Mr Emerson has [the child] in his care each fortnight and for one-half of the public school gazetted holidays. I found Ms Searle’s general assertions as to a recent increase in the inconsistency of care being provided by Mr Emerson unpersuasive, given their vague and otherwise unsupported nature.
Looking to the NSW Government website shows that this year, by way of example, public schools in NSW have 95 days, equating to 14 weeks (rounded up) of school holidays each year. If Mr Emerson has one-half of that time, rounded down to 47 days, and 2 nights in each of the remaining 19 fortnights of the year, he spends 85 nights each year with [the child]. That is 23% of care, meaning that, even if there has been some minor inconsistency in Mr Emerson’s care for [the child], I remain unpersuaded that the pattern of care assessed by the Registrar in 2018 has materially changed. Rather, making such allowance, I am satisfied that the respective percentages of care remain at 21% to Mr Emerson and 79% to Ms Searle.
As a result, none of ss 54F,54G or 54H of the Act are engaged, and there is no basis for the existing care percentages to be revoked.
The consequence of that is that the parties’ respective percentages of care will not be changed based on the notification to the Registrar made by Ms Searle on 23 February 2024.
Decision
The Tribunal sets aside the decision under review and, in substitution, decides that the care percentages of 21% to Mr Emerson and 79% to Ms Searle will not be revoked based on the notification to the Registrar made by Ms Searle on 23 February 2024.
| Date(s) of hearing: | Tuesday, 3 December 2024 |
| Representative for the Applicant: | Self-represented |
| Representative for the Other party: | Self-represented |
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